Joint Committee On Human Rights Appendices to the Minutes of Evidence

6.  Letter to Chairman from Jacqui Smith MP, Minister of State, Department of Health


  Your letter of 1 September 2001 addressed to Alan Milburn raised a number of questions about the decision to lay the above order. I am responding on his behalf.

  I shall address each of the points raised by the Committee in turn.

Question 1: Did you consider seeking leave to appeal to the House of Lords against the Court of Appeal's interpretation of the 1983 Act, and, if so, what persuaded you that it would be preferable to accept the Court of Appeal's restrictive interpretation.

  We gave very careful consideration to the question of appeal but decided not to pursue that course on the basis of advice that there would be no realistic prospect of success. We understand that there was no discernible error of law in the judgement of the Court of Appeal and an application for leave to appeal to the House of Lords had been refused by the Court of Appeal. In addition the judgement was not out of line with the direction of Government policy intentions for new mental health legislation as set out in the White Paper Reforming the Mental Health Act 1983.

Question 2: Do you have any information about the number of patients who might be in this position, with grounds for applications to the European Court of Human Rights in respect of their continued detention, until such time as the law is brought into line with ECHR Article 5 and their cases are considered or reconsidered by a Tribunal?

  The Committee's comment in the pre-amble to this question indicates that at least one patient (I assume H) has been detained contrary to his Convention rights. I am not persuaded that this is what the judgement says.

  The Tribunal's written decision is ambiguous as to whether there is a positive finding of mental disorder in the case of H (see paragraph 6 of the judgment—". . . this patient is (a) still exhibiting symptoms of his illness, namely the hearing of voices . . ."). This specific issue was not addressed in the Court of Appeal's judgment which focused on the abstract question of whether the test was compatible, not whether H had been treated compatibly. It remains unclear whether a positive finding of mental disorder warranting detention was actually made, and hence unclear whether H's detention was at any time contrary to Article 5.

  Paragraphs 33 and 34 of the judgement cast further doubt as to whether H was ever detained contrary to Article 5. A clear analogy is drawn between the circumstances of the case of H and the case of M and reference is made to the difficult question of schizophrenia in relation to Tribunal discharge. Here, the Court of Appeal suggests that schizophrenia, even when in remission, enables the Tribunal to make the positive findings necessary to satisfy Article 5 (albeit it is unclear whether they did so in this case). The Court of Appeal then go on to say in paragraph 34 that "it is only rarely that the provisions of ss 72 and 73 constrain an MHRT to refuse an order of discharge where the continued detention of the patient infringes Article 5".

  The Committee may wish to note that when H's case came back before the Tribunal in August this year, the Tribunal made a positive finding of a mental disorder of a nature and degree warranting detention in hospital. As a result, H is subject to continuing detention.

  Turning now to the Committee's question, we are not aware of any patients whose Convention rights are being breached as a result of the incompatible provisions.

  My Department issued Guidance to Tribunal Chairmen on 5 April 2001. It provides:

    Where a Tribunal (having sought further information) remains unable to make a positive finding that all the criteria for continued detention are made out but nonetheless orders that the patient be detained, it should state in its reasons that a positive finding was not possible and that the statutory test was applied.

  Hence, patients whose continued detention is contrary to article 5 should be easily detectable. To date, no such cases have been brought to the Department's attention by patient representatives (over 95 per cent of patients have legal representation before the Tribunal) or the Tribunal. We understand that the Regional Chairmen of the Tribunal are not aware of any such cases.

  We would not expect there to be any unrestricted patients detained contrary to Article 5 given the Tribunal's absolute discretion to order a discharge in any such case.

  The same discretion does not extend to restricted patients. That said, it remains the Court of Appeal's view that it will "rarely" be the case that detention will be contrary to Article 5 where the Tribunal refuses a discharge.

Question 3: What led you to decide against using the "urgent cases" procedure for making a remedial order under the Human Rights Act 1998, Schedule 2, paragraph 2(b) and (4) which would have allowed the amendment of the law to take effect at once, instead of delaying the opportunity for the patients to seek their discharge until a date which is unlikely to be earlier than March 2002?

  Choosing between the urgent and non-urgent procedures was not clear-cut.

  The decision required balancing the potential interference with patient's Convention rights against the need for Parliamentary scrutiny of a proposal to change primary legislation.

  The non-urgent procedure allows for a period of consultation after which the draft order can be amended. With the urgent procedure, there is no opportunity for the House or its Committees to ask for changes until after the order has been made. There is then no obligation on the Government to make any change. The non-urgent procedure allies itself more closely with the Parliamentary procedure used to scrutinise Bills. It provides a higher level of Parliamentary scrutiny.

  The non-urgent procedure was adopted in the light of the fact that the Court of Appeal thought the Tribunal would rarely be constrained to refuse discharge in Violation of Article 5, and we had no evidence that any patient was currently affected.

Question 4:  Please will you inform the Committee of any steps which you propose to take to make available sufficient compensation to avoid a situation in which the United Kingdom is in breach of its obligations in international law under those Articles of the ECHR?

  We do not envisage a statutory compensation scheme. This is not least because the number of people who are actually affected, if any, is expected to be very low. In light of the very small number of possible violations, we consider that a readiness to address complaints on a case by case basis would be a more flexible and efficient response, and one less open to vexatious applications.

  Where a patient is able to demonstrate that were it not for the double negative part of the test he would have been discharged, the Government will pay compensation. It seems likely that any intended application to Strasbourg will be notified to my Department prior to issue and the question of compensation can be looked at then. Under the guidance issued by my Department in April any problems should be picked up long before then. I would anticipate that the level of any compensation awards would be in line with Strasbourg levels and not domestic ones.

  We recognise that a legally enforceable right to a remedy for breach of a Convention right is preferable, as a long-term solution, to an ad hoc response of the kind described. Indeed, I understand that it is the model provided by the Human Rights Act for breaches that are unlawful as a matter of domestic law. However, we believe that an ex gratia response is appropriate here, in the short term, where the detention is not unlawful domestically. Our international obligations not to detain people in breach of Article 5 are being anticipated and met by the Remedial Order itself.

15 October 2001

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