Joint Committee On Human Rights Twenty-Fifth Report

IV. The Main Provisions of the Draft Bill and their potential Human Rights Implications

The proposed Code of Practice

  1. Part 1 of the draft Bill deals with a number of preliminary matters. Clause 1 would require the appropriate Minister to publish a Code of Practice setting out general principles to which decision-makers must have regard when acting in pursuance of the draft Bill in respect of a patient.[17] These principles must be designed to ensure that patients are involved in making decisions, that the decision-making process is fair and open, and that any interference with or restrictions imposed on patients when providing treatment "are kept to the minimum necessary to protect their health or safety or other persons".[18] A draft of the Code must be laid before Parliament before it is brought into operation by order made by statutory instrument subject to annulment; but the draft Bill does not require that the Code receives parliamentary approval before the order is made.[19] While the proposed Code has worthwhile objectives,[20] furthering patients' autonomy, dignity and physical and moral integrity are fundamental to the protection of their human rights in relation to medical treatment, whether for mental or for physical illnesses and disorders. At the moment, the draft Bill does not spell out the central role of these considerations, and would not impose a statutory obligation on decision-makers to give effect to them: breach of the Code of Practice would not seem to make a decision or action unlawful (although the legal status and effects of the Code of Practice are not specified in the draft Bill, unlike those of the Codes of Practice issued under other legislation such as the Police and Criminal Evidence Act 1984).
  2. We have serious reservations as to the capacity of the proposed Code of Practice to give sufficient protection to the human rights of patients in the decision-making processes envisaged by the draft Bill. We recommend that these matters should be clarified on the face of the legislation when a Bill is introduced to Parliament.
  3. The proposed new tribunal system

  4. Clause 3 of, and Schedule 1 to, the draft Bill would establish a Mental Health Tribunal (MHT), which would have a role in approving care plans for patients who are treated under the regime which the draft Bill would introduce. Clause 4 of, and Schedule 2 to, the draft Bill would establish a Mental Health Appeal Tribunal (MHAT) to hear appeals from decisions of the MHTs. These bodies would replace the Mental Health Review Tribunals (MHRTs), which have been criticised on account of a perceived lack of independence of the executive and for limitations in their powers. The problems with MHRTs have given rise to concern that they do not adequately protect the right of patients to be free of arbitrary detention under ECHR Article 5. The new arrangements have the potential to address these concerns, and so are of great significance in the drive to safeguard patients' rights.
  5. The tribunals would be advised by an independent expert drawn from a new Expert Panel, to be established under clause 5, in cases concerning the use of compulsory powers. This would remove the need under the 1983 Act for the medical member of the MHRT to act both as a member of the tribunal and as an adviser to the tribunal when assessing the evidence of clinicians and others, which might have threatened the impartiality of the medical member. By bolstering the independence and impartiality of the tribunals, the proposed arrangements would make it easier to ensure that they can adequately safeguard the rights of patients under ECHR Article 5. More will be said below about the detailed powers proposed for the MHT and MHAT system. Here, we draw attention to two structural issues.
  6. First, the success of the proposed system would depend crucially on finding enough suitably qualified lawyers and clinical and general lay members to serve on the Expert Panel and to sit on the tribunals. We are concerned that there might not be enough available people, and we note that the Department of Health must be prepared to set fee levels for participation in such tribunals at an adequate level to attract sufficient, qualified members.
  7. Secondly, Schedules 1 and 2 to the draft Bill (which deal with the constitution of the tribunals) do not in terms guarantee that the method of appointment will secure the independence of the executive of the members appointed to the tribunals. The qualifications of members are to be specified by the Lord Chancellor in rules made by statutory instrument subject to annulment by either House of Parliament,[21] and the Lord Chancellor would be required to consult the appropriate Minister before appointing clinical or general members of MHTs.[22] Members' terms of appointment are to be determined by the Lord Chancellor, subject to a requirement that members must retire at the age of 70 (although there would be power to authorise continuance to the age of 75).[23] In general, we consider that elements in a statutory scheme which are vital to the capacity of the scheme to operate compatibly with human rights should be spelt out in the legislation itself. However, in the case of the clinical and general qualifications of members, and the terms of appointment, we are prepared to accept that the variety of qualifications and types of members would make it difficult to specify the necessary qualifications and terms exhaustively in primary legislation. Any appointment which failed to ensure the independence of the tribunals would make it impossible for the tribunals to operate compatibly with ECHR Articles 5 and 6(1), and so impossible for them to operate lawfully by virtue of section 6 of the Human Rights Act 1998. That being so, we do not consider that delegating the power to specify the qualifications of members and the terms of appointment would lead to the rights of patients being inadequately protected.[24]
  8. Definitions of 'patient', 'mental disorder' and 'medical treatment', and their implications

  9. Clause 2 sets out a number of crucial definitions for the purposes of the draft Bill. They include definitions of 'patient', 'mental disorder' and 'medical treatment' which substantially define the reach of the powers to examine, assess and treat people compulsorily under the draft Bill. They give rise to some concern on human rights grounds, so it is worth setting them out in full at this stage.
  10. Patient

  11. '"Patient" means a person suffering or appearing to be suffering from mental disorder.'[25] This would bring children for the first time within the protective scheme of the mental health legislation. We welcome this development. It would limit the power of parents and guardians to authorise the compulsory treatment of children without review by an independent body such as the MHT. The inclusion of child patients in the definition of "patient" should generally allow the United Kingdom to comply with the requirements of CRC Article 25, although we would have liked the protection to go further, particularly in respect of compliant child patients who lack capacity to consent to treatment.
  12. Mental disorder

  13. '"Mental disorder" means any disability or disorder of mind or brain which results in an impairment or disturbance of mental functioning; and "mentally disordered" is to be read accordingly.'[26] This definition could make people liable to be treated compulsorily for a far wider range of disorders than the 1983 Act. The range of conditions potentially covered by the definition of 'mental disorder' under clause 2 of the draft Bill would include addiction and learning disorders. There is a risk that it might also include illnesses affecting organs other than the brain but causing effects which interfere with mental functioning, such as epilepsy,[27] and conceivably diabetes if the patient was suffering a hyperglycaemic attack leading to interference with brain function.[28] The definition goes much further than necessary to ensure that dangerous people can be removed from situations in which they put themselves or others at risk. The prospect of a Mental Health Act being used to authorise compulsory treatment of people suffering from diabetes or epilepsy is unattractive. In our view it would unduly interfere with the right of people suffering from disorders which do not normally affect mental function to control the kinds of treatment which they accept. This is a fundamental aspect of the right to personal autonomy and physical integrity which arises both at common law and under Articles 3 and 8 of the ECHR, and should not be limited by over-inclusive mental health legislation. We recommend that the definition of 'mental disorder' should be reviewed to see whether this risk can be avoided.
  14. We are also concerned that a provision of the 1983 Act expressly preventing detention 'by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs' is omitted from the draft Bill. The history of the twentieth century demonstrated that psychiatry is capable of being abused: Nazi Germany and the USSR were probably not the only countries in which socially or politically unacceptable behaviour was regarded as a manifestation of a 'disorder of mind ... which results in an impairment or disturbance of mental functioning' (to use the words of clause 2(6) of the draft Bill) and treated accordingly. While ECHR Article 5.1(e) would permit depriving people of their liberty if they are alcoholics or drug addicts, or for the prevention of the spreading of infectious diseases, we would regard the use of a compulsory medical power for these purposes as a retrograde step. We recommend that an exclusion should be included when a Bill is introduced to Parliament, to prevent mental health professionals becoming the guardians of morality in a way that could lead to a violation of Articles 8 (right to respect for private life) and 10 (right to freedom of expression) of the ECHR.
  15. Medical treatment

  16. '"Medical treatment" means treatment for a mental disorder provided under the supervision of an approved clinician; and for this purpose "treatment" includes—
  17. (a) nursing,

    (b) care,

    (c) habilitation (including education, and training in work, social and independent living skills), and

    (d) rehabilitation (read in accordance with paragraph (c).'[29]

  18. These definitions are very wide. As the Minister pointed out to us,[30] the definition of 'medical treatment' is different from that under the MHA 1983, section 145 only in that it expressly makes clear that 'habilitation' includes education and training provided under the supervision of an approved clinician. We agree with the Minister when she writes—
  19. Education alone of a child in the usual sense of the word would not amount to habilitation, whilst education in managing a mental disorder under the supervision of a consultant level psychiatrist or psychologist, or in addition to other forms of treatment, would. The definitions in both the 1983 Act and draft Bill must necessarily encompass the wide range of interventions now commonplace in mental health practice.[31]

  20. None the less, taken together with the wide definitions of 'mental disorder', the definition of 'treatment' means that the draft Bill, unlike the 1983 Act, would make it possible for people to be compulsorily detained and cared for when there is nothing that can be done to relieve their disorder. Unlike the MHA 1983, the draft Bill contains no 'treatability requirement' in the therapeutic sense: a person could be detained for treatment (in the sense of care) even if there is no prospect of any treatment having the effect of improving the patient's condition. That this is no oversight is clear from the 'relevant conditions' for authorising compulsory treatment under clause 6 (examined below). The Minister points out that ECHR Article 5.1 is not in principle concerned with the suitability of treatment or with the conditions in which people are detained, and that there are safeguards which should protect a patient's right to respect for private life under Article 8.1 from being unjustifiably interfered with.[32] In this connection, the Minister refers particularly to Ashingdane v. United Kingdom[33] and to the opinions of Lord Hope of Craighead and Lord Clyde in Anderson and others v. The Scottish Ministers and the Advocate General for Scotland,[34] pointing out that conditions for lawful detention on mental health grounds laid down in an earlier decision of the European Court of Human Rights—Winterwerp v. The Netherlands [35]—were not concerned with treatment.
  21. However, in view of the dynamic nature of the interpretation of Convention rights by the European Court of Human Rights, it would in our view be a mistake to restrict attention to judgments delivered as long ago as 1979 and 1985. More recent decisions show that Article 5 can indirectly affect the conditions of detention, the availability of suitable treatment, and the choice between residential and non-residential treatment. The Court has held that there was a violation of Article 5 when an offender, ordered by a court to be detained for psychiatric treatment, was held in a prison psychiatric wing which lacked the resources for offering treatment appropriate to the patient's condition.[36] There was also a violation of Article 5 when a patient, who did not need to be treated as a residential patient and could have been treated in the community if suitable support had been available, continued to be detained for treatment because of an indefinite delay in providing appropriate services in the community.[37] Thus, unlike the position in domestic law before the Human Rights Act 1998,[38] detention initiated lawfully and for a lawful purpose may become unlawful under Article 5 on account of the suitability of the resources which are available for a patient's treatment, the regime to which the patient is subject, and the need to continue to detain the patient to protect himself or herself, or the public, from danger.[39] When assessing the suitability of the therapeutic environment, the Court has taken into account, when available, reports on the institution in question of the European Committee for the Prevention of Torture under the Council of Europe Convention for the Prevention of Torture and Other Forms of Inhuman or Degrading Treatment or Punishment.[40]
  22. We accept that it remains permissible, under ECHR Article 5.1(e), to detain people who are suffering from a mental disorder if necessary in order to protect them or the public against a risk to health, well-being or personal safety, as long as the risk is assessed on the basis of objective evidence. The availability of effective therapeutic treatment is not a necessary condition for detaining the person. Nevertheless, we draw attention to the need to establish that the detention is necessary, and that the resources for treatment (in terms of both the therapeutic environment and the level of specialist psychiatric expertise) are appropriate for the patient's condition. In addition, conditions in the place where a person is detained, if sufficiently offensive, may amount to degrading treatment, violating ECHR Article 3. In relation to a person suffering from a mental disorder who was detained on remand in prison, the Court has written that Article 3 does not require that a person be detained in a hospital rather than a prison, or be released for treatment in a civilian hospital. However, it does require the state to—
  23. ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance ...[41]

    In relation to compulsory detention, we draw attention to the demands of ECHR Article 3, as well as those arising under Article 5.1, and expect that they will be borne in mind when the Government is preparing a Bill to be introduced to Parliament.

    Conditions for compulsory examination, assessment and treatment of patients

  24. Part 2 of the Bill (clauses 6 to 56) contains the detailed provisions regarding compulsory examination, assessment and treatment of patients. Clause 6 sets out the four 'relevant conditions' to be satisfied before a patient could be compulsorily interfered with under the draft Bill. They are—
  25. (1) 'that the person is suffering from mental disorder',[42]

    (2) 'that that mental disorder is of such a nature or degree as to warrant the provision of medical treatment to him',[43]

    (3) either—

    (a) 'that the person is at substantial risk of causing serious harm to other persons and that it is necessary for the protection of those persons that medical treatment be provided to him', or

    (b) 'in any other case, that—

    (i) it is necessary for the health or safety of the patient or the protection of other persons that medical treatment be provided to him, and

    (ii) that treatment cannot be provided to him unless he is subject to the provisions of' the draft Bill,[44]


    (4) 'that appropriate medical treatment is available in the patient's case'.[45]

  26. The effect of these conditions, and particularly the third of them, taken together with the broad definitions of 'mental disorder' and 'medical treatment' set out above, would be to permit the compulsory detention and care of people for the protection of others when the people detained have never been charged with any criminal offence and nothing can be done to alleviate the mental disorder from which they are suffering. This raises human rights issues, flowing mainly from the breadth of the circumstances in which a patient could be subjected to compulsory, non-consensual, treatment.
  27. First, there is no requirement that any treatment delivered by compulsion to a patient must be capable of conferring some therapeutic benefit on him or her. The treatment must be warranted (under the second relevant conditions), necessary to protect the patient or other people (under the third relevant condition), and, in most cases, impossible to provide without using the powers under the draft Bill (under the third relevant condition in cases where the patient is not at substantial risk of causing serious harm to other persons). So far as it is relevant to justifying an interference with a patient's human rights, these conditions seem to us to incorporate, in a satisfactory way, necessity and proportionality requirements. Nevertheless, concern will undoubtedly be felt about the propriety of allowing potentially indefinite detention where the only treatment which can be provided is care and education or training, under the supervision of an approved clinician, to help the patient to avoid injuring himself or herself or other people and to cope with the condition. There is no equivalent power in legislation to allow the compulsory detention, for the purpose of care, education and treatment, of people suffering from most physical disorders or disabilities (although we have noted above the possibility that certain physical disorders might bring patients within the scope of the mental health legislation if they produced an effect on the mind or brain).
  28. We recognise the force of these concerns, but have come to the conclusion that the proposals, in themselves, would not lead to a violation of human rights. In terms of relevant human rights treaties, the power of the state to deprive persons of unsound mind of their liberty is expressly recognised in ECHR Article 5.1(e). Under the ICCPR, deprivation of liberty is allowed under Article 9.1 if it is not arbitrary, and is carried out on grounds, and in accordance with procedures, established by law. Article 26 of the ICCPR guarantees protection against discrimination on the ground of status (among other grounds), and in principle health, whether mental or physical, would seem to be a type of status and ground of discrimination calling for careful examination and justification. In passing the Disability Discrimination Act 1995, Parliament implicitly recognised the fact that less favourable treatment of disabled people on the ground of their disability is equally objectionable whether the disability is physical or mental. The less favourable treatment of mental health patients as compared to other patients in terms of the administration of compulsory treatment needs to be justified. But we consider that there is an important factor which distinguishes people suffering from mental disorders from those suffering from physical disorders. This is their capacity to consent, or to withhold consent, to treatment.
  29. Where a patient is suffering from a condition which seriously impairs his or her mental capacity to choose whether to accept treatment, there seems to us to be a rational and objective justification for treating that person differently, in relation to decisions about treatment, from someone whose mental capacity for decision-making is not so seriously impaired. This consideration seems to us to justify the liability of mentally disordered patients to non-consensual medical intervention where other patients would not be so liable, avoiding a violation of ICCPR Article 26. It also seems to us to mean that deprivation of liberty for that purpose is not in principle arbitrary, so avoiding any inevitable violation of ECHR Article 5.1 or ICCPR Article 9.1.
  30. Because there is no 'treatability' requirement in the draft Bill such as that which applies under the 1983 Act, the draft Bill might allow for the indefinite preventative detention of dangerous people with severe personality disorders (DSPD) who might cause a danger to others. The Minister told us that the this is not the Government's intention,[46] although this controversial proposal has been the subject of consideration in a number of reports.[47] The Minister wrote—
  31. We have no intention of enabling detention of any patient for whom no treatment is available nor is this possible within the terms of the draft Bill.. The Government's DSPD programme is a ground breaking investigation of the extent to which dangerous personality disorders are amenable to clinical intervention and, consequently, could justifiably be managed within the scope of the Bill. We believe that effective treatment for such people will become available while this legislation is in force and that some people may therefore be appropriately treated under compulsory powers. The conditions are drafted to avoid exclusion of any mentally disordered person to whom professionals believe they can offer effective treatment.[48]

    We entirely accept that this is a legitimate aim, and we recognise that it would be legitimate within the terms of the ECHR as interpreted by the European Court of Human Rights. We note that, before a patient could be compulsorily detained, he or she would have to be either (a) a person at substantial risk of causing serious harm to others, whom it is necessary to treat for the protection of those people, or (b) a person to whom it is necessary to provide medical treatment for his or her own health or safety or to protect others, and to whom the treatment could not be provided unless the compulsory provisions of the Bill are applied.

  32. However, we still have two reservations about the powers as set out in the draft Bill. First, whatever this Government's intention, the wide definition of 'medical treatment' in the draft Bill would allow people to be detained where the only treatment that could be offered was 'care' under the supervision of an approved clinician. The draft Bill does not, in terms, say that the powers could be used only where professionals believed that they could offer effective treatment in the wider sense of a therapeutic programme with a reasonable chance of mitigating the patient's condition. The fourth relevant condition, that appropriate medical treatment is available to the patient, would offer no protection against use of the powers in a manner inconsistent with the Government's intention, particularly in a case where the powers are used to protect others, because the only possible treatment might be no more than day-to-day care (perhaps with education, training, or rehabilitation) under the supervision of an approved clinician,[49] especially if the disorder could be treated therapeutically.
  33. Secondly, there would be serious problems of risk assessment. We would be interested to know how reliably it is currently possible to predict which patients will become violent towards other people. The Minister wrote to us as follows—
  34. Currently mental health professionals working in specialised settings with people who are dangerous rely upon information about the patient's history in order to assess and formulate mental health problems and assess risk. An assessment would normally involve gathering information directly from the patient (about current and past thoughts, feelings and behaviour, as well as symptoms and signs of mental illness). Where possible, information would also be gathered from family members or other sources. The clinician will make a judgement about the reliability and validity of the information so gathered. The more information that can be obtained about the past and about certain 'risk factors' or behaviour patterns, the more accurate the assessment of future risk.

  35. We accept that it is possible to make such assessments, and that the criteria for making them may be well understood by professionals. Our concerns relate to the reliability of the 'risk factors', and their transparency. We would be interested in any information that might be available as to the nature of the 'risk factors' and the statistical likelihood of the 'risk' which they disclose materialising in any particular case. If the Government or its advisers have this information, it would make more compelling the Minister's argument for the reliability of the assessment. If the 'risk factors' (individually or collectively) are strong predictors of future violence, it would reduce the likelihood of people being arbitrarily detained, and hence the likelihood of a violation of ECHR Article 5.
  36. In Scotland, the Scottish Parliament enacted the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 amending the Mental Health (Scotland) Act 1984 to permit the preventative detention of dangerous offenders suffering from severe personality disorders whose conditions could not be treated therapeutically.[50] The compatibility of the amending legislation with ECHR Article 5 and the Scotland Act 1998 was upheld by the Judicial Committee of the Privy Council in Anderson, Reid and Doherty v. The Scottish Ministers and the Advocate General for Scotland.[51] However, the decision depended on the limits to the preventative power conferred by the amendments introduced by the 1999 Act. In particular, the power of detention applied only in respect of people who had been convicted of serious criminal offences who were being treated for mental disorders and were restricted patients, that is patients who could not be released from compulsory detention for treatment without the consent of the Secretary of State or, subsequently, the Scottish Ministers.
  37. None of these limitations would apply to the power of compulsory detention for treatment under the draft Bill. Clause 6(1)(4) makes it clear that non-therapeutic detention could be authorised in respect of a person who had no conviction for an offence of violence or any other offence, on the basis of speculation about possible future behaviour and resulting risk to unidentified persons. The draft Bill has no provisions directed specifically to the problems facing decision-makers in respect of patients with severe but untreatable personality disorders. The decision in Anderson can therefore not be regarded as supporting the compatibility of this aspect of the draft Bill with the Convention right under ECHR Article 5.
  38. In relation to the compulsory detention of dangerous people with severe personality disorders, we recommend that the Government should make publicly available an account of risk factors to be used in assessing such cases and their reliability, when introducing the Bill to Parliament.
  39. A further possible cause for concern relates to the propriety (or otherwise) of allowing a patient's autonomy to be interfered with when he or she may, at certain times, be capable of making decisions about his or her own welfare and medical treatment. A person's capacity for decision-making cannot be assessed for all time or for all purposes. A patient with a mental disorder might lack capacity to make decisions about some matters but be capable of making decisions about other matters. The principle is well established in relation to children that they should be regarded as capable of medical decision-making in accordance with their age and understanding of the issues, and CRC Article 12.1 requires states to 'assure to the child who is capable of expressing his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.' This principle is as relevant to patients with mental disorders as it is to children. Furthermore, chronic mental disorders may allow patients periods of remission, or lucidity, between periods of incapacity. The common law recognises that during lucid periods, a person suffering from intermittent bouts of serious mental illness affecting his or her decision-making capacity may give directions about his or her treatment (or non-treatment) for physical illness which will bind the medical staff should the physical illness occur or recur while the patient is incapable because of mental illness.[52] It seems that the draft Bill would not apply the same approach to patients' wishes about treatment for any future attack of mental illness or disability.
  40. The draft Bill does oblige the clinical supervisor and others to consult (in various situations) the patient, and the patient's carer and the patient's nominated person (who may be obliged to give information about the patient's wishes) before making decisions about treatment, but it will be for the decision-maker then to decide what weight to attach to their views. We have doubts about whether it should be possible to override the wishes of the patient, expressed when capable of making a decision, about treatment. The ECHR permits treatment (including forced feeding through a naso-gastric tube) to keep a person alive against his or her will, if he or she is suffering from a mental disorder at the time, because the state can rely on its positive obligation to preserve life.[53] The same duty would justify the state in compulsorily providing treatment to someone who would otherwise be likely to cause death or serious harm to others.[54] But we have doubts as to whether the same principle would justify overriding a direction given with proper capacity where the patient later became ill, but not a threat to himself or others.
  41. Powers and duties of decision-makers

  42. The remainder of Part 2 of the draft Bill is concerned with the powers and duties of those who are responsible for deciding whether compulsory medical treatment is justified in relation to people who are outside the criminal justice system. The draft Bill envisages three stages.
  43. Initially, someone (often a carer, social worker or health professional) would ask the appropriate Minister to determine whether the four relevant conditions appear to be met in a person's case. The Minister would be responsible for the determination,[55] in practice delegating the function to a NHS Trust, primary care trust, or (in Wales) the bodies which will supersede Health Authorities.[56] It has been said that the question at this first stage of determining whether compulsory treatment is necessary or justified is 'whether there is objective evidence that a patient meets the conditions for the initial use of compulsory powers',[57] although the draft Bill does not spell this out. We recommend that the Bill, when introduced to Parliament, should set out this standard expressly on the face of the legislation.
  44. The initial decision would be made after consulting the person's carer, if appropriate, who would explain whether the patient's wishes and feelings about treatment could be ascertained, and, if they could, what they were.[58] (Before the carer is consulted, the wishes and feelings of the person himself or herself about consulting the carer would have to be ascertained; the carer could not be consulted if it would be inappropriate to do so having regard to the person's wishes and feelings.)[59]
  45. The second stage is reached if the person or body to whom the Minister's functions have been delegated determines that the relevant conditions appear to be met. Arrangements must be made for the person to be examined as soon as possible by two registered medical practitioners, at least one of whom must satisfy requirements to be set out in regulations to be made under the draft Bill to ensure that he or she has relevant qualifications and experience and does not have a conflict of interest in the case, and one approved mental health professional (AMHP).[60] (An AMHP is someone falling within a description to be specified in regulations,[61] who would probably be a social worker or member of another profession such as a mental health nurse, and would have to be trained to achieve a set level of understanding of the mental health legislation and the non-medical aspects of treatment.[62]) One submission suggested that the definition of AMHP could lead to an examination being conducted by two doctors and a clinical psychologist, leading to treatment by the clinical psychologist. Having no local authority social worker involved in the examination could, it was argued, remove the non-medical element from the decision-making process.[63] We accept that this would result in the loss of a valuable alternative perspective, but do not consider that it would leave a patient's human rights without adequate safeguards as long as the AMHP takes proper account of non-medical aspects of the case
  46. If all the examiners independently decided that the relevant conditions are met,[64] the patient would be liable to assessment. This might be done either as a non-resident patient, or, if the AMHP and one of the clinical examiners decided that it would be appropriate, as a resident patient (being compulsorily detained for that purpose if necessary).[65] If the person is to be assessed as a non-resident patient, appropriate requirements could be imposed on him or her to ensure that the assessment can be carried out and to protect the health and safety of the patient and other people, taking account of any risk established in relation to the third relevant condition.[66]
  47. Where an AMHP and one registered medical practitioner decided that the patient's condition made an assessment an urgent necessity, and that examination by a second medical practitioner would lead to undesirable delay, the patient would be liable to assessment as a resident patient under an emergency procedure, although the second medical practitioner would still have to examine the patient subsequently and form the view that the relevant conditions were met.[67]
  48. These determinations would affect the patient's right to be free of arbitrary deprivation of liberty under ECHR Article 5 and the right to respect for private and family life and the home under ECHR Article 8, but in our view the conditions and procedural safeguards, if properly applied in practice, would be sufficient to ensure that the interference with the patient's freedom would be justifiable in terms of Article 5(1) and Article 8(2). The safeguards include, in addition to those mentioned above—
  49. —  the requirement to make determinations within time limits, and to record determinations and the reasons for them,[68]

    —  provision for the assessment to be carried out on a non-resident basis where appropriate,

    —  the requirement for notification to the patient of the determinations and of the reasons for them, and of the help to be available from mental health advocates,[69]

    —  the requirement to appoint a nominated person for the patient, and to notify that person of those matters,[70] and

    —  the safeguards available to patients during the assessment process, explained below.

  50. The third stage would be the assessment of the patient's condition. Within 24 hours of the patient becoming liable to assessment, the AMHP would have to register the patient with the hospital responsible for carrying out the assessment and any medical treatment.[71] The registration would provide authorisation for resident patients to be conveyed and admitted to the hospital as long as this is done within 7 days (or 24 hours in the case of an emergency patient), and detained there until the assessment period ended or the patient became a non-resident patient.[72] In the case of a non-resident patient, the registration would authorise the AMHP or the clinical supervisor (when one is appointed) to require the patient to comply, during the assessment period or until he becomes a resident patient, with the requirements specified by the majority of the initial examiners, as long as the patient is notified of them within 7 days of the registration.[73] In either case, the hospital managers would have to appoint a clinical supervisor as soon as practicable,[74] and ensure that the clinical supervisor assesses the patient within the assessment period, which could not last longer than 28 days unless the MHT made an order authorising a further period of assessment.[75] Furthermore, there would be a duty to keep the status of the patient (and any requirements imposed on a non-resident patient) under review,[76] and a duty to prepare a care plan for the patient within five days of registration.[77]
  51. The process of assessment interferes with the patient's autonomy and with the right to respect for private life (ECHR Article 8(1)), and may interfere with the rights to be free of degrading treatment (ECHR Article 3) and of arbitrary deprivation of liberty (ECHR Article 5). It is important that there should be adequate safeguards for these fundamental rights and freedoms. The draft Bill contains a number of safeguards, including—
  52. —  the right of the patient or his or her nominated person to apply to the MHT for an order discharging the patient's liability to assessment, or directing that a resident patient become a non-resident patient,[78] and

    —  the power of the clinical supervisor to allow a resident patient leave of absence from the hospital, subject to conditions.[79]

  53. In principle, these provisions should make it possible to ensure that a person's right to respect for private and family life is respected, and that the interference goes no further than can be justified by ECHR Article 8(2). It is less clear that the provisions would adequately safeguard the right to liberty under ECHR Article 5. The MHT would be required to discharge a patient from liability to assessment if it 'determines that not all of the relevant conditions are met in the patient's case', or 'is satisfied that it is not necessary to assess further what medical treatment should be provided to the patient ...'[80] On the other hand, it would have to make an order confirming the patient's liability to assessment, or authorising assessment, if satisfied 'that it is necessary to assess further what medical treatment should be provided ...'[81] As the Court of Appeal pointed out in a decision on the 1983 Act, if a tribunal must be satisfied that conditions for compulsory assessment or treatment are not met before discharging the patient from liability to assessment or treatment, it seems to place the burden on the patient to satisfy the tribunal that the conditions are not met.[82] ECHR Article 5, by contrast, requires the authority asserting a liability to assessment or treatment to establish that the conditions are met. The 1983 Act was amended by a remedial order to remove the incompatibility.[83] There appears to be a risk that clause 29 of the draft Bill would recreate the problem. We consider that clause 29(3) and (5) of the draft Bill should be redrafted to make it clear that the person advocating compulsory assessment bears the burden of persuading the tribunal that the relevant conditions are met, and that further assessment is necessary.
  54. At the end of the assessment period, if the clinical supervisor determines that either further assessment or medical treatment is needed, the managers of the hospital would have to ensure that the clinical supervisor applied to the MHT for an order authorising further assessment or treatment (as the case may be).[84] Before applying to the MHT, the clinical supervisor would have to review the care plan, and consult the patient's nominated person and any carer (subject to the provisions of clause 8).[85] The application must state the reasons for the clinical supervisor's determinations, describe the mental disorder for which treatment is to be provided (whether or not in accordance with the care plan), and deal with any other matter prescribed in regulations to be made by the appropriate Minister.[86] The MHT must determine the application within 28 days, complying with rules to be made by the appropriate Minister.[87]
  55. The tribunal would have to refuse the application and discharge any order authorising the patient's assessment or treatment if satisfied that the relevant conditions are not met.[88] In our view, the safeguards relating to decisions to continue compulsory detention should generally be sufficient protection for human rights. However, the burden of proof before the Mental Health Tribunal could give rise to incompatibility with ECHR Article 5 for the reasons explained above in relation to clause 29(3) and (5). We consider that the provision should be redrafted to make it clear that the onus is on the applicant to satisfy the MHT that the relevant conditions are met.
  56. If the tribunal authorises further assessment or treatment, the order would have to be for a specified period not exceeding six months in the case of an order for medical treatment (unless there had been three previous orders authorising treatment, in which case the order could be for a period not exceeding 12 months),[89] and 28 days (renewable up to a total of three months) in the case of an order authorising assessment.[90] The orders would authorise detention of resident patients, and the imposition of requirements on non-resident patients, for the purpose of being assessed for medical treatment or receiving medical treatment.[91] In our view, the safeguards for patients, if properly implemented, would generally be sufficient to protect Convention rights, subject to the point noted in paragraph 59 about the burden of persuading the MHT about matters which are necessary in order to justify compulsory assessment and treatment.
  57. Other protections for patients' rights

  58.  Clauses 42 to 50 contain protections for the rights of patients. We welcome—
  59. —  the right of a patient or the nominated person to apply to the MHT for the discharge of an order authorising medical treatment for more than three months (clauses 42-43);

    —  clause 43(3) of the draft Bill, which (unlike some of the provisions relating to applications to the MHT at earlier stages) clearly states that the MHT must discharge the order unless satisfied that the relevant conditions are met in the patient's case;

    —  the power of the clinical supervisor to discharge an order or, if necessary, apply to the MHT for the order to be discharged (clauses 44 and 45);

    —  the right to have a registered medical practitioner, authorised by or on behalf of the patient, visit the patient at any reasonable time to examine him or her in private, consult records, and advise on a possible application to the MHT (clause 47);

    —  the requirement for the MHT to appoint a member of the Expert Panel to assist it in determining the application (clause 48); and

    —  the requirement for the MHT's chairman to record (among other things) the reasons for the MHT's determination, together with any relevant findings of fact (clause 49(2)).[92]

    Ancillary powers

  60. Clauses 51 to 56 would confer various ancillary powers, including power to transport patients. Most of these seem to be unexceptionable in human rights terms. There are powers to take into custody non-resident patients who fail to attend hospital when required to do so, and resident patients who are absent from hospital without leave or who have overstayed their leave.[93] Taking someone into custody is an intrusive measure, and there is a risk that people might be taken into custody unnecessarily. There is no power to use force to enter premises for the purpose without a warrant under clause 140, and the requirements of the Human Rights Act 1998 would apply to a decision to take someone into custody and to the manner in which the decision was implemented. Nevertheless, we would prefer to see a necessity or proportionality requirement on the face of the provisions relating to transport of patients, in order to avoid doubt about the circumstances in which a patient's human rights could lawfully be restricted.
  61. People with mental disorders and the criminal justice system

  62. Part 3 of the draft Bill deals with patients who are involved in the criminal justice process. We welcome the fact that the draft Bill would extend the protection of the mental health legislation to prisoners both before and during trial and after conviction. After conviction of an offence punishable with imprisonment, the court would be able to make a mental health order if four conditions were satisfied,[94] and would also be able to order that the person is to be subject to special restrictions if the court considers that to be necessary in order to protect the public from serious harm, taking account of the nature of the offence, the defendant's character and antecedents, and the risk of his or her committing further offences if set at large.[95] The main restrictions are—
  63. —  the Secretary of State would be able to specify the hospital at which the person is treated, and the person would be liable to be detained at a high security psychiatric hospital if the Secretary of State so directs,[96]

    —  the Secretary of State's consent would be needed for the offender to be granted leave of absence from hospital,[97]

    —  the MHT would not be able to discharge or vary the mental health order so as to allow treatment in a hospital which has not been agreed by the Secretary of State, or to allow leave of absence without the consent of the Secretary of State,[98] and

    —  the MHT would not be able to discharge a requirement that the person be treated as a resident patient if it is satisfied that treatment as a resident patient is necessary for the person's own health or safety or for the protection of members of the public.[99]

  64. We welcome the fact that the Mental Health Tribunal would be obliged to discharge the mental health order if not satisfied that the conditions for making the order are met in the person's case. If the mental health order were discharged, any restriction order would cease to have effect, and with it the powers of the Secretary of State to delay the person's release from hospital.[100] At present under the 1983 Act, in respect of restricted patients, the MHRT can only make a recommendation to the Secretary of State, who makes the final decision. This means that the restricted patient has no access to a court with power speedily to determine the lawfulness of his or her detention and to order release if the detention is not lawful, as required by ECHR Article 5(4). Although the Secretary of State in practice accepts the MHRT's recommendation, the tribunal's inability to make a binding order for release is not merely a formal matter: an important safeguard against abuse of the power to detain a patient is absent. The European Court of Human Rights therefore held that the law in this respect violates ECHR Article 5(4).[101] The draft Bill would remove that incompatibility.
  65. However, we share the concern of the Mental Health Act Commission about the chance of patients receiving competent treatment in prison. In the Commission's view, compulsory treatment should not be given in prison unless and until a proper range of facilities is available in the prison psychiatric facility. We reiterate that compulsorily treating offenders who have been detained for psychiatric treatment in a prison psychiatric wing without an appropriate therapeutic environment and an appropriate level of specialist psychiatric expertise violates ECHR Article 5.[102] We consider that this should be taken into account when a Bill is introduced to Parliament.
  66. Safeguards in relation to medical treatment

  67. Part 4 of the Bill deals with special safeguards which would attach to certain medical treatments: surgery to destroy brain tissue or its functioning, irreversible or hazardous treatments, or other descriptions of treatment to be specified in regulations. The following safeguards are proposed in the draft Bill.
  68. —  A clinical supervisor who thinks that the treatment would be appropriate must tell the relevant Minister, who may arrange for members of the Expert Panel to take the next steps.[103]

    —  A patient who is capable of consenting must not be given the treatment unless one medical and two non-medical members of the Expert Panel certify that the patient has consented in writing to the treatment and that it is in the patient's best interests to be given the treatment. A registered nurse and another non-medical professional who have been involved in the patient's treatment must have been consulted, together with any nominated person of the patient if practicable and anyone else specified in regulations to be made by the relevant Minister.[104]

    —  A patient who is not capable of consenting must not be given the treatment unless one medical and two non-medical members of the Expert Panel certify that there is no reasonable prospect of the patient becoming capable, that the patient is unlikely to resist the treatment, and that it is in the patient's best interests to be given the treatment. Before certifying this, they must have consulted the patient (unless it would be impractical or inappropriate to do so), a registered nurse and another non-medical professional who have been involved in the patient's treatment must have been consulted, together with any nominated person of the patient if practicable, and anyone else specified in regulations to be made by the relevant Minister.[105]

  69. It would generally be permissible to administer any other form of compulsory medical treatment (that is treatment which is not in the category requiring the special safeguards mentioned above) without the patient's consent if it is described in the patient's care plan which has been approved by the MHT in a mental health order, or, in the case of restricted patients, by the court. In the case of a person transferred from prison for treatment, consent would not be needed for treatment described in the care plan.[106]
  70. But there are some forms of treatment which are sufficiently dangerous to need special authorisation before they can be administered without the patient's consent. The draft Bill would normally require electroconvulsive therapy (ECT), and any other treatment described in regulations made by the relevant Minister, to be expressly authorised by the MHT before consent could be dispensed with. The clinical supervisor would have to consult the appropriate people before applying to the MHT for authorisation. Where it is immediately necessary to save a patient's life, a clinician would be allowed to give the treatment without express authorisation from the MHT. Where it is immediately necessary to prevent a serious deterioration in the patient's condition, or to alleviate serious suffering, or to prevent the patient behaving violently or endangering his or her own life or that of other people, only treatment which is neither hazardous nor irreversible could be administered without the patient's consent or MHT authorisation.[107]
  71. It has been pointed out to us that the MHA 1983 imposes stricter controls on hazardous and irreversible treatments than are envisaged in the draft Bill. Irreversible treatments, including those resulting in the destruction of brain tissue or its function and the surgical implantation of hormones to control the male sex drive, currently must not be administered without the patient's consent (which must be witnessed by three specially appointed people) unless it is necessary to save the patient's life. Hazardous treatment must not be administered without the patient's consent unless it is necessary to save the patient's life or prevent a serious deterioration in his or her condition, and a specially appointed medical officer certifies that the patient is incapable of giving consent but that he or she would benefit from the treatment.[108] There is no possibility of dispensing with the patient's consent in order to alleviate his or her suffering, or to prevent the patient becoming violent or endangering life.
  72. We accept that it may sometimes be desirable to dispense with consent to benefit the patient significantly, or to prevent harm to others. In such cases, we consider that it would be justifiable to interfere with the patient's rights under ECHR Article 8. On the other hand, we are not convinced that it would necessarily be justifiable under Article 8 to administer hazardous treatment without the patient's consent in order to prevent the patient from becoming violent, unless there is a significant risk that someone would suffer significant harm and no less hazardous means of restraint are available. This additional condition flows from the principle of proportionality entailed by the requirement of Article 8(2) that an interference with the right must be shown to be necessary in a democratic society for a legitimate purpose. It is virtually certain that the courts would read that condition into the legislation, carrying out their duty under section 3 of the Human Rights Act 1998 to give effect to the legislation in a way that ensures compatibility with Convention rights so far as possible. Clinicians in public-sector hospitals, as public authorities, would be under an obligation to use their power to dispense with consent to treatment only when, and so far as, the conditions under Article 8(2), including proportionality, were met.[109] But (as we have frequently observed before) when legislation confers a power which could be used in a manner incompatible with Convention rights, it is important that the legislation should contain on its face the restrictions necessary to protect people against improper interference. This is specially important in a clinical context, where powers threaten a person's bodily integrity and autonomy, and will be exercised by non-lawyers who might not have ready access to expert legal advice. We recommend that clause 119 should be redrafted accordingly.
  73. New protection for compliant patients who lack capacity to consent to treatment

  74. The provisions in Part 5 of the Bill are entirely new to mental health law in the United Kingdom. For the first time, a degree of statutory protection is extended to mental patients who are not compulsorily detained, but who are not capable of consenting to treatment. The aim is to fill a vacuum revealed in R. v. Bournewood Community and Mental Health NHS Trust, ex parte L. (Secretary of State for Health and other intervening)[110] (hereafter 'Bournewood'). In that case, a patient was taken to hospital and put in an unlocked psychiatric ward. The patient was not capable of consenting to treatment, and the clinician in charge of his treatment said that she would have detained him compulsorily under the Mental Health Act 1983 had he tried to leave. In the event, he made no attempt to leave. In these circumstances, the House of Lord held unanimously that it was lawful to treat him as a voluntary patient, denying him the protection afforded to compulsorily treated patients by the Mental Health Review Tribunal and other procedural safeguards. Their Lordships considered this to be a serious gap in the protection for mental patients against non-consensual treatment which might not be necessary or in their best interests, and urged Parliament to put safeguards in place. The absence of such safeguards has obvious human rights implications. It is the purpose of Part 5 of the draft Bill to remedy the problem.
  75. We welcome the Government's willingness to address the issue. The new safeguards proposed in the draft Bill would be as follows.
  76. Excluding certain people from the class of those who could be treated as voluntary patients

  77.  It would not be permissible to treat a person as an informal or voluntary patient if it seems to the clinical supervisor that the patient is incapable of consenting to treatment, and either would resist the treatment (to be assumed where the patient has previously refused it), or is at substantial risk of committing suicide or causing serious harm to other people.[111] This will result in more people being treated compulsorily than at present, but that is desirable as it will prevent them being denied the benefit of the safeguards under Parts 2 and 4 of the draft Bill.
  78. Other patients: treatment as voluntary patients with safeguards for 'qualifying patients'

  79. Other compliant patients could be treated as voluntary patients, but would be eligible for special safeguards if the appropriate Minister determined that the patient was a 'qualifying patient'. A qualifying patient would be one who met six criteria—
  80. (i)  the patient is aged 16 or over;

    (ii)  the patient is suffering from a mental disorder;

    (iii)  the mental disorder is of such a nature or degree as to warrant the provision of medical treatment;

    (iv)  it is necessary for the patient to be a resident patient at a hospital for treatment to be provided, and that is likely to continue to be the case for more than 28 days;

    (v)  the patient is not capable, and is likely to continue for more than 28 days not to be capable, of consenting to the treatment; and

    (vi)  treatment can lawfully be provided without making the patient a compulsory patient.[112]

  81. Qualifying patients would have the following safeguards—
      1. an approved clinician would be appointed to act as the patient's clinical supervisor;[113]
      2. the local social services authority would have to appoint a person to act as the patient's nominated person, and inform the patient and the nominated person of the help available from mental health advocates under the draft Bill;[114]
      3. the clinical supervisor would have to consult the nominated person before treatment is commenced, keep him or her informed while treatment continues, and, if practicable, consult him or her before the patient is discharged or becomes a non-resident patient. The nominated person would have to inform the clinical supervisor if it seemed to him or her that the patient would not have consented to treatment of a particular description being used or continued;[115]
      4. the hospital managers would have to ensure that the clinical supervisor prepared a care plan (which the clinical supervisor would have power to amend later), consulting the patient and the nominated person if practicable before making or amending the plan, and incorporating the plan or amended plan in the patient's records;[116]
      5. the clinical supervisor would have to send a copy of the care plan or amended plan to a medical adviser, appointed by the appropriate Minister, for approval. The medical adviser would be a member of the Expert Panel, who would have to examine the patient, satisfy himself or herself that the appropriate people had been consulted, and discuss the plan with the clinical supervisor. If the medical adviser did not approve the plan on the ground that the treatment would not be lawful without the patient being subject to compulsory treatment under Part 2 of the draft Bill, the clinical supervisor would have to apply to the MHT for approval;[117]
      6. there would be restrictions on the circumstances in which, and purposes for which, ECT and irreversible or hazardous treatments could be used;[118]
      7. there would be reviews by the clinical supervisor at intervals of not more than twelve months. In addition, the nominated person could request a review once in twelve months. If the clinical supervisor refused to carry out a review on request, or there is a dispute about the outcome of the review, the decision must be referred to the medical adviser. If the medical adviser decides that a review should be carried out, the clinical supervisor would either have to do it or apply to the MHT for a decision as to whether or not a review should be carried out. If the medical adviser upholds a complaint from the nominated person about the outcome of a review, there must be an application to the MHT, which will either approve or not approve the determination of the clinical supervisor;[119]
      8. one application in twelve months may be made to the MHT for the discharge of the patient.[120]

  82. We welcome the clear structure for decision-making which the draft Bill would introduce in relation to the treatment of voluntary or informal patients. We also welcome the element of independent review by medical adviser and MHT, and the ability of the nominated person to trigger those mechanisms. We consider that these steps constitute major protections for the human rights of patients who are unable to consent to treatment but do not require compulsory treatment.
  83. Nevertheless, the proposals do not protect all patients in the position of the patient in the Bournewood case. We remain concerned about the adequacy of safeguards for the rights of two categories of patients who are compliant but incapable of consenting to treatment.
  84. First, children under the age of 16 are not within the scope of the provisions. This leaves them under-protected compared to adults, and may lead to violations of their rights under the ECHR and under Article 25 of the CRC. Decision-making for these child patients would be left to parents or guardians and the professionals, without the need for independent scrutiny or review of treatment decisions. In view of the fact that children who are compulsorily treated would be brought within the protections of Parts 2 and 4 of the draft Bill, we consider that consistency, as well as concern to protect the children's rights, militates in favour of including children in the safeguards for compliant patients without capacity as well.
  85. Second, the new protective regime would not apply to patients being treated as non-resident patients, or to patients in residential homes. It would apply only to patients in: (a) NHS hospitals; (b) accommodation provided by a local authority and used as a hospital by or on behalf of the appropriate Minister under the draft Bill; and (c) other establishments which are independent hospitals registered under Part 2 of the Care Standards Act 2000 in which medical treatment is or may be provided to persons who are subject to the provisions of Parts 2 or 3 of the draft Bill, or where the main purpose of the establishment is to provide medical or psychiatric treatment for illness or mental disorder or palliative care.[121] In her letter to us, the Minister says that this does not seem to raise concerns in relation to the ECHR.[122] We agree that the ECHR does not have particular implications for people in the community. We are concerned, however, about people in private residential care. If a patient is compliant but lacks capacity to consent to treatment, he or she is in exactly the same position with regard to the need for scrutiny and review of treatment decisions whether in an NHS hospital or a private residential establishment. In each case, the circumstances are the same as the patient faced in the Bournewood case. We accept that Convention rights as given effect in domestic law under the Human Rights Act 1998 does not extend to private residential establishments unless they were exercising public functions,[123] but the United Kingdom can still be held accountable in the European Court of Human Rights if domestic law fails to provide adequate protection to those in such establishments against interference with their rights to be free of degrading treatment (ECHR Article 3), to be free of arbitrary detention (ECHR Article 5), to respect for private life (ECHR Article 8), or to freedom from discrimination (ECHR Article 14, taken together with one or more of the other rights). We consider that it would be appropriate to extend the protection of the new regime relating to compliant patients who lack capacity to consent to treatment to all such patients, wherever they happen to be receiving treatment.
  86. Taking or retaking patients, and powers of entry and inspection

  87.  Part 6 of the draft Bill would confer powers to take or retake a patient, or remove a person to a place of safety. Normally this would require a warrant to be issued by a justice of the peace, which should provide adequate protection for rights under ECHR Articles 5 and 8. A warrant could be dispensed with in urgent cases, but the urgency would be likely to justify the action for human rights purposes.[124] Entry by an approved health professional (AHP) without a warrant to a place where a person is living, if the AHP has reasonable grounds for believing that the person is suffering from mental disorder and is not under proper care, would similarly be likely to be justified under ECHR Article 8(2).
  88. Patient representation

  89. Part 7 of the draft Bill is concerned with the appointment, functions and availability of people to represent the patient's interests in the decision-making process. It proposes two innovations.
  90. Nominated person

  91. First, the draft Bill would establish a new role of 'nominated person', to be consulted in the course of decision-making, with responsibility for informing decision-makers whether it is possible to ascertain the patient's wishes and feelings about treatment, and, if it is possible, what they are.[125] The nominated person would broadly perform the functions exercised by the patient's 'nearest relative' under the MHA 1983, but with clearer definition of his or her functions and involvement in decision-making. We welcome this. It seems to us that one potential human rights problem remains. There have been occasions under the 1983 Act when the statute has specified the individual who is to act as the nearest relative and the patient has objected. It has been argued that saddling a patient with a nearest relative whom he or she does not want or trust to represent his or her interests violates the right to respect for private and family life (ECHR Article 8). In a friendly settlement of a case brought against the United Kingdom, the Government has undertaken to remedy this. Clauses 148 to 153 lay down the rules for appointing the nominated person. In general, the appointer would be a public authority (usually a local authority social services department), and the appointment would be made according to criteria laid down in the draft Bill after consulting the patient and the patient's carers. Under the terms of the draft Bill the patient would have a veto on the nominated person exercising particular functions, while the patient was capable of making decisions.[126] That would certainly be an improvement, in human rights terms, on the present position. But the patient would have no power to revoke the appointment of a nominated person, or to insist on appointing someone of his or her choice. This would remain a potential interference with the patient's right to respect for private life under ECHR Article 8.1. The interference might be justifiable under Article 8.2 if it could be shown to be necessary in order to protect the rights and welfare of the patient or other people, and to be proportionate to that aim. We hope that the Government will put into the public domain the evidence and arguments needed to establish that the interference is justifiable in this way.
  92. More generally, we note that the draft Bill does not appear to require that the patient or the nominated person should be informed before a patient is transferred between hospitals (clause 51) or is examined or treated under Parts 2 to 4 of the draft Bill. We regret that this lack of information for the patient fails to respect the patient's dignity, on which human rights are based. Nor need the nominated person be informed when correspondence is withheld from the patient (although the patient and the sender would have to be notified within seven days: clause 172(3)), or when a patient's leave of absence is withdrawn (although the patient or the person for the time being in charge of the patient would have to be notified: clause 25(9)). We regret that the absence of a duty to notify the nominated person deprives the patient of a valuable safeguard for his or her human rights.
  93. Mental health advocates

  94. Secondly, clause 159 would require the appropriate Minister to arrange for help to be available to patients and nominated persons from mental health advocates. The help would have to include assistance in obtaining information about the treatment and the law relating to it, and in exercising rights under the legislation. The Minister would have to ensure that enough assistance would be available to meet all reasonable requirements. This new provision of assistance would be delivered by 'mental health advocates', and the qualifications needed by such advocates could be prescribed in regulations to be made by the Minister. The advocates would be entitled to meet the patient privately, and to require the clinical supervisor to produce for inspection any records relating to the patient.
  95. This is a welcome development. Even the most elaborate and comprehensive system for conferring and protecting rights is unlikely to be fully effective unless, as a last resort, the patient has access to practical means of exercising and, if necessary, enforcing the rights. We hope that the necessary resources will be put into the scheme to ensure that enough high-quality mental health advocates will be available in all parts of the country, and that patients and their nominated persons have means of getting access to them quickly on request.
  96. Monitoring of the mental health system

  97. The provisions of Part 7 of the draft Bill are very significant. As it presently stands, the draft Bill does not include provision for the continuation of the Mental Health Act Commission, which currently plays a key role in the protection of patients. It monitors the performance of the system as a whole, and inspects particular institutions and can visit individual patients. We consider that these arrangements are an important guarantee of the quality of the system and in particular of its effective compliance with human rights. We note, however, that the consultation document indicates that the proposed new health service inspectorate will incorporate a specialised division to deal with mental health, and that the Government has decided to give the new inspectorate visiting rights.[127] While we welcome this in principle, it can only be a matter for speculation whether this arrangement will provide as close regulation of the system as could be exercised by a specialised Commission.
  98. We believe it is vital that there is a body capable of taking an overall view of the mental health care system based both on the collection of statistics and reports and on visits to particular places and people, and that it should be able to make reports on its own account or publish codes of practice as necessary. More particularly, we believe it is vital not only that the impact of the new system on the human rights of patients is carefully monitored, but that there should be a body which has, as an explicit part of its mission, the task of promoting a culture of human rights in this part of the National Health Service. It is an area of the public service where questions about the balancing of the rights of individuals against their needs and those of the wider community will always be difficult, and where decisions will always be debatable. Both patients and practitioners in mental health need all the protection we can afford them.


17   Clause 1(1), (2) Back

18   Clause 1(3). The Code would also have to provide further guidance to cover certain functions, and it would be permitted to provide that in certain specified circumstances it would not apply: Clause 1(4), (5), (6) Back

19   Clauses 1(11) and 176(1), (3) Back

20   The Mental Health Act Commission (which would cease to operate under the proposals in the draft Bill) has issued a number of Codes of Practice, which could serve as a template for the one proposed in Clause 1 Back

21   Sch. 1, para. 1; Sch. 2, para. 1; and s. 176 Back

22   Sch. 1, para. 2(3) Back

23   Sch. 1, para. 3; Sch. 2, para. 3 Back

24   We note that the House of Lords Delegated Powers and Regulatory Reform Committee would consider the appropriateness of the delegation more generally if and when a Bill is introduced to the House Back

25   Clause 2(7) Back

26   Clause 2(6) Back

27   In R. v. Sullivan [1984] AC 156, the House of Lords held that a person who committed an offence while in the grip of an epileptic episode could only advance a defence on the basis of insanity, because the condition was a defect of reason due to disease of the mind within the meaning of the M'Naghten rules on criminal insanity Back

28   In similar vein to Sullivan on epilepsy, it has been held that a person with diabetes who commits a criminal act when his mental functioning is interfered with by a hyperglycaemic attack cannot argue that he lacked the mental capacity to form the intention required to commit the offence (the mens rea), but must plead not guilty by reason of insanity (defined for the purposes of criminal law as a defect of reason due to disease of the mind such that the defendant did not know the nature and quality of his acts, or did not know that what he was doing was wrong): see R. v. Hennessy [1989] 2 All ER 9, CA. On the other hand, a hypoglycaemic attack brought on by a diabetic patient injecting himself with too much insulin would apparently not be regarded as a mental disorder: R. v. Quick [1973] QB 910, CA Back

29   Clause 2(5) Back

30   Ev pp. 12-15, paras 18-19 Back

31   ibid., para. 19 Back

32   ibid., paras 20, 23 Back

33   (1985) 7 EHRR 528, Eur. Ct. HR Back

34   15 October 2001, DRA Nos. 9, 10 and 11 of 2000, Judicial Committee of the Privy Council, affirming the decision of the Inner House of the Court of Session in A. v. Scottish Ministers 2000 SLT 873 Back

35   (1979) 2 EHRR 387, Eur. Ct. HR Back

36   Aerts v. Belgium, Eur. Ct. HR, judgment of 30 July 1998, at 49 Back

37   Johnson v. United Kingdom, Eur. Ct. HR, RJD1997-VII, judgment of 24 October 1997, 27 EHRR 196 Back

38   R. v. Deputy Governor of Parkhill Prison, ex parte Hague [1992] 1 AC 58, HL (concerning prison conditions, but the same principles would probably have applied to detention in a psychiatric hospital) Back

39   Witold Litwa v. Poland, Eur. Ct. HR, App. No. 31365/96, judgment of 5 October 2000 Back

40   See, e.g., Aerts v. Belgium, above Back

41   Kud_a v. Poland, Eur. Ct. HR (Grand Chamber), App. No. 30210/96, judgment of 26 October 2000 Back

42   Clause 6(2) Back

43   Clause 6(3) Back

44   Clause 6(4) Back

45   Clause 6(5) Back

46   Ev p. 12, para. 21 Back

47   See, e.g., Mental Health Act Commission, Managing Dangerous People with Severe Personality Disorders: Response of the Mental Health Act Commission to the Proposals for Policy Development (2000), accessible at Back

48   Ev p. 12, para. 21 Back

49   See Clause 2(5)(b)-(d) Back

50   The Act was a response to the decision of the House of Lords in R. v. Secretary of State for Scotland 1999 SC (HL) 17, a case on detention of restricted patients under the Mental Health (Scotland) Act 1984 Back

51   15 October 2001, (DRA Nos. 9, 10 and 11 of 2000), affirming the decision of the Inner House of the Court of Session in A. v. Scottish Ministers 2000 SLT 873 Back

52   In re C. (Adult) (Refusal of Treatment) [1994] 1 WLR 290 Back

53   Herczegfalvy v. Austria, Eur. Ct. HR, judgment of 24 September 1992, 15 EHRR 432 Back

54   See, e.g., Winterwerp v. The Netherlands, above; Witold Litwa v. Poland, above Back

55   Clause 9(1) Back

56   Explanatory Notes, p. 9, para. 18 Back

57   Explanatory Notes, p. 9, para. 20 Back

58   Clauses 9(2), 8(5) Back

59   Clause 8(1)-(4). Rethink, formerly known as the National Schizophrenia Fellowship, suggested to us that this might inhibit consultation where patients are suffering from paranoia, which commonly leads them to blame carers for their loss of liberty and to refuse permission to share information with them: Evidence, reproduced in the Annex to this Report, below. While we appreciate the significance of this concern, it seems to us that the drafting of Clause 8(4) would allow decision-makers to take this factor into account when deciding whether it was appropriate to consult the carer in the light of the feelings and wishes of the patient Back

60   Clause 9(4), (5) Back

61   Clause 2(9) Back

62   Explanatory Notes, pp. 6-7, para 11 Back

63   Dr. James Jenkins, Ev p. 10 Back

64   Clauses 10(1), 11(1)-(3) Back

65   Clauses 10(2), 11(4) and (5) Back

66   Clause 10(3), (4) Back

67   Clause 12 Back

68   Clause 13 Back

69   Clause 14(1)-(3), Clause 16, and clause 159 Back

70   Clauses 14(4), 15 Back

71   Clause 17 Back

72   Clause 18(1)-(3) Back

73   Clause 18(4)-(7) Back

74   Clause 19 Back

75   Clause 20 Back

76   Clauses 21-24 Back

77   Clause 26 Back

78   Clauses 28, 29 Back

79   Clause 25 Back

80   Clause 29(3), (5) Back

81   Clause 29(6), (8) Back

82   R. (H.) v. Mental Health Review Tribunal, North and East London Region [2001] 3 W.L.R. 512, C.A. Back

83   Mental Health Act 1983 (Remedial) Order 2001, S.I. 2001, No. 3712. See Sixth Report of Session 2001-02, Mental Health Act 1983 (Remedial) Order 2001, HL Paper 57, HC 472 Back

84   Clause 30 Back

85   Clauses 31(2) and (7), 32(2) and (7) Back

86   Clauses 31(5), 32(5) Back

87   Clauses 36(1), 50 Back

88   Clause 37(2) Back

89   Clause 38(10)-(12) Back

90   Clause 40(10)-(12) Back

91   Clauses 39, 41 Back

92   We see the force of the view of the Mental Health Act Commission that the requirement for reasons should apply to the member of the Expert Panel who visits the patient under clause 48(3) (and also clauses 120 and 130(3)) and advises the MHT. On balance, however, we think that the requirement for the MHT to give its reasons would be sufficient to satisfy the requirement for reasons highlighted in judicial decisions Back

93   Clauses 53(3), 54(2) and (5) Back

94   Clause 78. The conditions are different from those under Clause 6: the third relevant condition under Clause 6 is not needed because the defendant will have been convicted of an offence making him or her liable to imprisonment; but there is an additional condition that arrangements should have been made to admit the person to a hospital as a resident patient within 28 days, or that provision should have been made for medical treatment as a non-resident patient Back

95   Clauses 84 (Crown Court) and 85 (magistrates' court) Back

96   Clause 86(2) and (4) Back

97   Clause 86(7)-(10) Back

98   Clause 104(4) Back

99   Clause 104(6) Back

100   Clause 104(2) Back

101   Benjamin and Wilson v. United Kingdom, Eur. Ct. H.R., App. No. 28212/95, judgment of 26 September 2002, The Times, 9 October 2002 Back

102   Aerts v. Belgium, above Back

103   Clause 113 Back

104   Clauses 112, 114 Back

105   Clauses 112, 115 Back

106   Clause 117 Back

107   Clauses 118-120 Back

108   MHA 1983, ss. 57, 58, 62 Back

109   Human Rights Act 1998, s. 6 Back

110   [1999] 1 AC 458, HL Back

111   Clause 121 Back

112   Clauses 123, 125 Back

113   Clause 123(2), (4) Back

114   Clause 127 Back

115   Clause 128 Back

116   Clauses 129, 132 Back

117   Clause 130, 132 Back

118   Clause 131 Back

119   Clauses 133-135 Back

120   Clause 136 Back

121   This follows from the definition of 'hospital' in Clause 139, combined with Clause 2(3) Back

122   Ev pp. 12-15, para. 26 Back

123   Human Rights Act 1998, s. 6 Back

124   Clauses 140, 142, 143 Back

125   Clause 157(1) Back

126   Clause 157(4)-(10) Back

127   Cm 5538-III, p. 9 Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 11 November 2002