Chapter 5 • Human Rights and Arrest, Pre-Trial and Administrative Detention 4.7.2 Deprivation of liberty for reasons of mental health The Human Rights Committee has concluded that a nine-year detention of a person under the New Zealand Mental Health Act “was neither unlawful nor arbitrary” and did not, consequently, violate article 9(1) of the Covenant.62 The Committee observed that “the author’s assessment under the Mental Health Act followed threatening and aggressive behaviour on the author’s part, and ... the committal order was issued according to the law, based on an opinion of three psychiatrists”; furthermore, “a panel of psychiatrists continued to review the author’s situation periodically”.63 Since the author’s continued detention was also “regularly reviewed by the Courts”, neither was there any violation of article 9(4).64 ***** As to the meaning of the words “persons of unsound mind” in article 5(1)(e) of the European Convention, the European Court has held that “this term is not one that can be given a definitive interpretation”, but one “whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society’s attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more widespread”.65 It added that article 5(1)(e) “obviously cannot be taken as permitting the detention of a person simply because his views or behaviour deviate from the norms prevailing in a particular society. To hold otherwise would not be reconcilable with the text of Article 5 § 1 which sets out an exhaustive list ... of exceptions calling for a narrow interpretation”.66 Lastly, such an interpretation would not be “in conformity with the object and purpose of Article 5 § 1, namely, to ensure that no one should be dispossessed of his liberty in an arbitrary fashion”.67 Applying these criteria, the European Court has held that the following three minimum conditions must be satisfied for there to be a lawful detention of persons with mental problems under article 5(1)(e), namely: “except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder”.68 62 Communication No. 754/1997, A. v. New Zealand (Views adopted on 15 July 1999), in UN doc. GAOR, A/54/40 (vol. II), p. 254, para. 7.2. 63 Ibid., loc. cit. 64 Ibid., p. 254, para. 7.3. 65 Eur. Court HR, Winterwerp Case v. the Netherlands, judgment of 24 October 1979, Series A, No. 33, p. 16, para. 37. 66 Ibid., loc. cit.; emphasis added. 67 Ibid. 68 Eur. Court HR, Case of X. v. the United Kingdom, judgment of 5 November 1981, Series A, No. 46, p. 18, para. 40. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 177