Joint Committee On Human Rights Twenty-Fifth Report

V. Conclusions

  1. We have pleasure in reporting that the draft Mental Health Bill would make many major improvements to the safeguards for the human rights of patients in the mental health care system, whether they are being treated as compulsory or voluntary patients. We acknowledge the positive and constructive approach of the Minister to human rights issues in her letter to us, and are confident that it will be reflected in the way that the planned legislation is drafted for introduction to Parliament.
  2. We have drawn attention to a number of other matters which still cause us some concern on human rights grounds, including the following—

—  the uncertain legal status of the proposed Code of Practice makes it doubtful whether it would sufficiently safeguard the autonomy, dignity and physical and moral integrity of patients in decision-making processes (paragraphs 21-22);

—  the proposed definition of 'mental disorder' appears to us to be over-inclusive, potentially covering a number of conditions which would not normally be characterised as mental disorders and allowing health professionals to act as guardians of morality as well as health (paragraphs 29-30);

—  there is a need to bear in mind that ECHR Articles 3 and 5 impose certain obligations relating to the resources and treatment provided for a compulsorily detained patient (paragraph 35), particularly in relation to the therapeutic environment when a mentally disordered person is detained in a prison psychiatric wing (paragraph 67);

—  because the wide definition in the draft Bill of 'mental disorder', coupled with the wide definition of 'medical treatment' and the absence of a 'treatability' requirement, would make possible preventative detention of people with severe personality disorders which cannot be therapeutically treated, it is important to be able to access and assess the risk factors to be used when deciding whether someone is in need of detention for the protection of others (paragraphs 42-47);

—  the right of patients to give directions about their future treatment, during periods when they are capable of doing so, should be respected where doing so would not present a threat of death or serious harm to the patient or anyone else (paragraph 49);

—  the Bill when introduced should set out the test to be used for determining whether the appropriate Minister should arrange for a patient to be assessed for compulsory treatment (paragraph 51);

—  the provisions of draft clauses 29 and 37 should be amended to make it clear that the burden is on a person advocating compulsory assessment to establish that the criteria for it are met (paragraphs 59 and 61);

—  it would be desirable to include a proportionality requirement on the face of the legislation relating to ancillary powers (paragraph 64);

—  to ensure compatibility with ECHR Article 8, the safeguards relating to the administration of hazardous treatment should make it clear on the face of the Bill that such treatment should not be given without consent to prevent the patient becoming violent unless there is a significant risk of harm and no less hazardous means of restraint are available (paragraph 72);

—  the new safeguards for voluntary patients who are not capable of consenting (Part 5 of the Bill) should be extended to children and to patients in residential homes (paragraphs 80-81);

—  patients with capacity to do so should have a fuller role in selecting their nominated persons, so as to ensure compatibility with ECHR Article 8 (paragraph 84);

—  the proposed requirements for notification of patients and nominated persons should be extended to cover information about examination and treatment, transfer between hospitals, withholding correspondence and withdrawal of leave of absence (paragraph 85);

—  there might be insufficient protection afforded to mental health patients if there is to be no independent specialist Commission to oversee the operation of the mental healthcare system (paragraphs 88-89).


We trust that the Department will explain how it has responded to our concerns when it introduces the Bill itself in due course. We shall, of course, examine the Bill in the light of these concerns.


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