Joint Committee On Human Rights Appendices to the Minutes of Evidence

3.  Letter from Genevra Richardson, Professor of Public Law, Queen Mary, University of London


  The proposed Remedial Order appears to be doing precisely what was required by the finding of incompatibility. It is my understanding that the government was intending to place the burden of proof on the "detaining authority" in its new Mental Health Bill in any event. Nevertheless, I know of no firm timetable for the introduction of that Bill and would therefore regard the Remedial Order as necessary to secure compliance in the meantime.

  It may also be relevant to note that section 72(4), concerning guardianship, is currently phrased with the same burden of proof as was found incompatible in relation to hospital detention. It may be assumed therefore that section 72(4) would be equally incompatible. While there may well be an argument that guardianship under section 7 does not engage ECHR rights in the same way as hospital detention, as far as I know there is no definitive ruling on this. There is certainly a good argument that the more restrictive forms of guardianship do engage such rights and no doubt a further challenge will be brought if the government does not act to reverse the burden of proof for guardianship as well.

  One other major issue raised by sections 72 and 73 concerns their relationship to the criteria for compulsory admission to hospital in sections 3 and 37 and, in particular, sections 3(2)(b) and 37(2)(a)(i). The so-called "treatability" requirement for compulsory hospital admission in the case of psychopathic disorder has attracted much criticism and debate in recent years. Its possible relevance to the decision to discharge from detention has also been subject to legal challenge, raising questions of Convention compliance, most recently in the context of Scottish legislation.

  Whatever the outcome of current litigation, the issue of "treatability", or its possible successor "health benefit", will re-emerge if the government introduces legislation following its White Paper Reforming the Mental Health Act (2000). These questions were considered by the Health Committee of the House of Commons in its Report Provision of NHS Mental Health Services (1999-2000 HC 373-1), paras 136-8. The Committee was concerned by some of the implications of the earlier Green Paper and it remains to be seen how those concerns will be dealt with in any new Bill.

3 October 2001

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