"Discrimination by Address"
by Simon Foster

Contrary to popular belief, nothing in United Kingdom (U.K.) law prevents a psychiatric patient from voting, provided the person is over 18 and is a citizen of the U.K. or the Commonwealth. A voter simply must have sufficient mental capacity to know who he or she is and what he or she is doing.

However, in order to be placed on the electoral register, the person must have a voting address. If you are resident at an address on the due date, which is October 10, your name will be included on the register. The U.K.'s Home Office guidance to electoral officers presumes that those who have been absent from an address for over six months no longer reside there. And until recently, British law, under the Representation of the People Act of 1983, specifically precluded any patient in a psychiatric hospital from using the institution as a voting address. (Apparently this was because some Members of Parliament feared that the existence of a psychiatric hospital in their constituency could significantly distort their vote.)

Under this law, voluntary, or self-admitted, patients could fill in a special form nominating a previous address for registration purposes. However, patients who were detained under the Mental Health Act of 1983 did not have this option. Those who had been detained for a short time could still theoretically claim residence at an address outside the hospital but, after six months, detained patients found it increasingly difficult to claim that they retained residence "at home." Mind, the leading mental health advocate in England and Wales, campaigned for years against this law on the basis that it discriminated unjustifiably against people with mental health problems.

Mind stepped up the campaign to reform these laws when matters came to a head in 1997. A detained patient (with mental capacity) wanted to vote in the general election but was denied the opportunity to register. Mind obtained advice from leading counsel that the prohibition in the 1983 Act violated Protocol 1, Article 3 of the European Convention of Human Rights, which guarantees free elections "…under conditions which will ensure the free expression of the people in the choice of the legislature." The wording of the statute allowed no prospect of remedy before the U.K. courts, since it predated the passing of the Human Rights Act. Mind therefore applied on his behalf to the European Court of Human Rights.

Meanwhile, the incoming Labor Government had set up a working party to consider various reforms to the electoral system. They reported to the Government in July 1999. This working party, referring to Mind's legal challenge, recommended that the present ban on using a hospital as a voting address should be dropped for voluntary patients and those detained under the civil sections of the Mental Health Act. However, they proposed to exclude those sent to a psychiatric hospital by the criminal courts, known as "on hospital orders," from voting altogether.

The British Government implemented the working party's recommendations in what became Sections 1 and 2 of the Representation of the People Act 2000, which came into force in February 2001. Mind duly withdrew its legal challenge.

The provisions of the new Act are, of course, welcome. However, they leave those who came into psychiatric hospitals through a criminal court without a vote. The British Government's justification is that, since prisoners are not allowed to vote, it would be wrong to give preferential treatment to those on hospital orders. Mind has pointed out that in some cases a person who has been detained under a hospital order because of his or her mental health problem would never have been sent to prison for a similar offense, such as causing minor criminal damage. Moreover, those on "hospital orders" with restrictions (ss.37 &41 of the MHA) tend to be institutionalized for much longer than if they had received a prison sentence.

The immediate task now is to persuade hospitals to be proactive in registering their patients for voting purposes. In Mind's view, they have a legal duty to do so, bound by the European Convention and in compliance with the Disability Discrimination Act 1995.

Simon Foster has been Principal Solicitor of Mind since January 1998. Mind is the leading mental health charity in England and Wales, which offers advice to the public on mental health, community care, and disability discrimination law.