DMH 191 The Bar Council
MEMORANDUM OF THE LAW
REFORM COMMITTEE OF THE BAR COUNCIL
TO THE JOINT COMMITTEE
ON THE DRAFT MENTAL HEALTH BILL 2004
1. The Law Reform Committee of
the Bar Council welcomes legislation aimed at modernising mental
health law, but is concerned that the Bill appears to be unworkable
and to violate core human rights values in some significant respects.
This memorandum will focus on the aspects of the Bill that are,
in our view, most problematic, from a legal/human rights perspective,
although, in the light of the limitations placed on the length
of written submissions sought by the Committee and the complexity
of the Bill, the issues raised can in no way be considered to
be exhaustive.
2. The broad framework of compulsion
for assessment and treatment within resident and non resident
settings affects numerous rights. The starting point must be
the significant infringement of dignity and autonomy of a vulnerable
group by the use of compulsion, engaging related human rights
including liberty (article 5 of the European Convention on Human
Rights (ECHR)), the prohibition against inhuman or degrading treatment
(article 3), the right to private and family life (article 8)
and the prohibition on discrimination (article 14). These rights
are among those given binding effect by the Human Rights Act 1998.
Also of relevance are (non-binding) international human rights
provisions contained in the International Convention on Civil
and Political Rights (ICCPR), the International Convention on
Economic, Social a and Cultural Rights (ICESCR), the standards
in the UN Principles for the Protection of Persons with Mental
Illness and for the Improvement of Mental Health Care (the UN
Mental Illness Principles)[1]
and the Council of Europe's Convention for the Protection of Human
Rights and Dignity of the Human Being with regard to the Application
of Biology and Medicine: Convention on Human Rights and Biomedicine
(opened to signature at Oviedo on 4 April 1997) (the Bioethics
Convention)[2].
3. Of particular relevance is 'Recommendation
No. Rec(2004)10 of the Committee of Ministers of the Council of
Europe to member States concerning the protection of the human
rights and dignity of persons with mental disorder', adopted on
22 September 2004 under the terms of Article 15(b) of the Statute
of the Council of Europe[3].
Rec(2004)10 sets out a number of principles which, despite not
having binding effect and notwithstanding the United Kingdom Government's
decision (alone out of 45 member State) to reserve the right not
to comply with the Recommendation as a whole[4],
is likely to be particularly relevant in determining the ambit
of the rights protected by the European Convention on Human Rights
(and thus by the Human Rights Act 1998). The Convention is often
called a 'living instrument' and the European Court of Human Rights
(ECtHR) will interpret and apply its terms in accordance with
any 'evolving convergence of standards to be applied'[5].
Thus, even if the Bill as presently drafted does not conflict
with the Convention as it has been construed to date, in so far
as it fails to conform with Rec(2004)10 and other international
instruments setting minimum standards it may end up being declared
incompatible with Convention rights; that is quite apart from
the fact that, by contrast with the 1959 Mental Health Act, the
Bill signally fails to set the standards by which civilized nations
should treat this vulnerable and stigmatised group.
4. We have had an opportunity to
consider, among others, the written submissions made to the Joint
Committee by the Royal College of Psychiatrists, the Law Society,
the Mental Health Act Commission and the Institute of Mental Health
Act Practitioners. We have also read a transcript of the evidence
given to the Joint Committee by Professor Genevra Richardson.
We endorse the views, in particular, of Professor Richardson
and the very powerful submissions of the Royal College of Psychiatrists.
We do not need to develop in detail the concerns we have about
the Bill because of the careful manner in which these other respondents
have already addressed them.
5. We have therefore decided to
restrict our response to the single question posed by the Joint
Committee, namely: is the draft Mental Health Bill in full compliance
with the Human Rights Act? In answering that question we will
touch upon issues relevant to the other questions posed by the
Joint Committee, particularly Questions 1, 2, 3, 4 and 6.
6. We wish to highlight the following
areas of concern:
6.1. The criteria for the imposition
of detention and compulsory treatment are too vague, the threshold
for such imposition is too low and the safeguards against arbitrariness
too weak to comply with the provisions of Articles 5 and 8 of
the European Convention on Human Rights.
6.2. The absence of any reciprocal
right to treatment of a minimum standard and in appropriate conditions
and to suitable aftercare is incompatible with international human
rights standards and may violate Articles 5 and 8 ECHR.
6.3. Treatment may be imposed upon
competent, dissenting patients in circumstances that may violate
Articles 3 and/ or 8 and/ or 14 ECHR.
6.4. The absence of any power in
the Mental Health Tribunal to order a patient to be transferred
to another hospital or to be given leave of absence in the face
of objections from the patient's doctor or (in restricted cases)
the Home Secretary effectively neutralises its function where
transfer to lower conditions of security or leave of absence are
a necessary precondition to discharge, potentially in breach of
Articles 5(4) and 8.
6.5. Inadequate protection is given
to the residual rights of detained patients in relation to issues
such as seclusion, searching, visiting, access to personal possessions,
computers etc, potentially in breach of Articles 3 and 8.
Criteria for compulsion too vague, safeguards
too weak
7. The criteria for the imposition
of detention and compulsory treatment are too vague, the threshold
for such imposition is too low and the safeguards against arbitrariness
too weak to comply with the provisions of Articles 5 and 8 of
the European Convention on Human Rights.
8. For detention to be lawful for
the purposes of Article 5(1)(e) on the grounds of 'unsound mind'
the following relevant criteria must be established (the so-called
'Winterwerp criteria'), with the burden being on the State to
establish these criteria (Reid v United Kingdom):
8.1. The patient must be reliably
shown, upon objective medical expertise, to be suffering from
a true mental disorder (Winterwerp v Netherlands (1979)
2 EHRR 387, §39).
8.2. A person may not be detained
simply because his views or behaviour deviate from the norms prevailing
in a particular society (Winterwerp, ibid, §37).
8.3. The disorder must be of a
'kind or degree' warranting compulsory confinement (Winterwerp,
ibid, §39).
8.4. The detention will only be
'lawful' for the purposes of Article 5(1)(e) if effected in a
hospital, clinic or other appropriate institution authorised for
that purpose (Ashingdane v United Kingdom 1985) 7 EHRR
528, §44).
9. For a detention to be lawful,
however, it is not enough that these conditions are in fact
met in any given case. The detention must have some justification
in national law. Moreover, national law must itself meet
the standard of "lawfulness" set by the Convention.
In particular, the law must be sufficiently precise to allow
the citizen - if need be, with appropriate advice - to foresee,
to a degree that is reasonable in the circumstances, the consequences
which a given action might entail. Furthermore, the law must
provide adequate legal protections and "fair and proper procedures"
to guard against arbitrary or mistaken deprivations of liberty
(HL v United Kingdom, §114). It was this latter requirement
that was found to have been breached in the HL case.
10. Where compulsory powers are
imposed which do not give rise to a deprivation of liberty for
the purposes of Article 5, a similar obligation is imposed on
member States by Article 8, which safeguards the right to respect
for private and family life. The imposition of a non-resident
mental health order on a citizen will constitute an interference
with this right which will only be justified if it is in accordance
with national law that is sufficiently foreseeable and provides
adequate guarantees against abuse.
11. We are concerned that the Bill
as currently drafted does not meet the requirements of legality
imposed by Articles 5 and 8, for the following reasons:
11.1. The failure to provide a
set of guiding principles within the body of the Bill but instead
to place these in a (non-binding) Code of Practice denies the
Bill a strong (i.e. enforceable) and accessible framework. Contrast
Rec(2004)10, Chapter II, and UN MI Principles, Principle 1.
11.2. The 'first relevant condition'
includes a definition of "mental disorder" (Cl. 2(5)
and Cl. 9(2)) that is very broad, potentially including those
with addictions and learning disabilities. A broad definition
of mental disorder is justifiable only if suitable exclusions
and other strict threshold criteria are also in place; this was
the basis upon which the Richardson Committee proposed a broad
definition of mental disorder.
11.3. There is no exclusion from
the definition of 'mental disorder' of those whose disorder arises
solely by reason of dependence upon or use of drugs or alcohol,
sexual preference, or other lack of adaptation to the moral, social,
political or other values of society. We refer to Art. 2(2)
of Rec (2004)10 and Principle 4(2) and (3) of the UN Mental Illness
Principles.
11.4. The 'second relevant condition'
that 'that mental disorder is of such a nature or degree as to
warrant the provision of medical treatment to him' is too low
a threshold. It should be qualified thus: '…
under compulsory powers' (Cl. 9(3), 116(3)).
11.5. The 'third relevant condition'
that 'it is necessary … for the protection of other persons'
(Cl. 9(4)) is too low a threshold. It should be qualified thus:
'… from physical or psychological harm'. We note that Rec(2004)10
sets the threshold for compulsory detention that 'the person's
condition represents a significant risk of serious harm to his
or her health or to other persons'.
11.6. The 'fourth relevant condition'
that 'medical treatment cannot lawfully be provided to the patient
without him being subject to the provisions of this Part' (Cl.
9(5)) is plainly intended to prevent those who can be treated
'informally' from being subject to compulsory powers. This goes
some way to meeting the objection in §(iii) above. However:
11.6.1. Incapacitated patients
who do not oppose treatment (so-called 'Bournewood patients')
will 'lawfully' be treated for mental disorder under the Mental
Capacity Bill which does not provide for the specific protections
of the Bill (or even those in Part 5 of the Mental Health Bill
2002). This may be incompatible with Article 5(1) and 5(4) in
the light of HL v United Kingdom, ECHR, 5 October 2004.
11.6.2. This condition is excluded
in the case of those who are over 16 and 'at substantial risk
of causing serious harm to other persons'. The only situation
in which a person who poses such a threat might be 'lawfully'
treated other than under the provisions of the Bill is if s/he
has capacity to consent to treatment, and does so consent. It
is difficult to see why such an individual should not be allowed
to receive treatment as an informal patient in hospital, as is
the case under the current MHA 1983 (see s. 3(2)(c)), and no justification
for changing the law has been advanced by the Government. If
the patient subsequently withdraws consent to treatment s/he may
then be compulsorily detained.
11.7. The 'fifth condition' that
'medical treatment is available which is appropriate in the patient's
case' is too vague and will permit 'preventive detention' of patients
who are considered to be dangerous but have not committed any
offence. This provision replaces the so-called 'treatability'
criteria that applies to patients detained under the category
of 'psychopathic disorder' under the MHA 1983. It is noted that
the 'treatability' requirement was very widely construed by the
House of Lords in Reid v Secretary of State for Scotland
and the ECHR has since ruled that 'treatability' is not a necessary
pre-condition for a lawful detention under Article 5(1)(e) (Reid
v United Kingdom). However, those decisions were both taken
in the context of individuals who had been convicted of serious
offences. The Law Reform Committee of the Bar Council considers
that there should be a requirement that 'medical treatment' includes
some 'therapeutic benefit' for the patient, in line with Rec (2004)10,
Art. 17(1)(iii).
11.8. The Bill provides no additional
threshold criteria for clinicians or the Mental Health Tribunal
to determine whether compulsory treatment is to be imposed in
the community (as a 'non-resident patient') or under conditions
of detention (as a 'resident patient'). The 'relevant conditions'
in Clause 9 require only that the threshold for treatment under
compulsion be reached: but a lower threshold is necessarily required
for treatment under a non-resident treatment order than for detention.
At the assessment stage, if the examiners decide the relevant
conditions in Cl. 9 are fulfilled, detention is automatic:
see Cl. 16(5) (and bearing in mind the limited category of patients
who are to be eligible for assessment in the community under Cl.
15(2)). See also Cl. 17(3) (emergency patients). At the stage
at which the Mental Health Tribunal determines whether to authorise
an order for medical treatment (Cl. 46) or further assessment
(Cl. 49), no additional threshold criteria is required in deciding
whether the patient is to be a resident or non-resident patient
(Cl. 46(4), 49(4)))[6].
On the face of it that is incompatible with Article 5(1). A
contrast may be made, for example, with Cl. 147(6). There should
be an additional threshold criteria to the effect that the patient
must be treated/ assessed as a non-resident patient unless the
examiner/ Tribunal are satisfied that treatment can only be given
in hospital and it is necessary for the health or safety of the
patient or the protection of the public from harm that he receive
the treatment as a resident patient.
11.9. The same criticism may be
made in respect of the power of the clinical supervisor (Cl. 48(4),
51(6), 57(2), 121(3)) and, in the case of restricted patients,
the Secretary of State (Cl. 129(8)) to revoke a patient's non-resident
status so that he is recalled to hospital. The clinical supervisor
or Home Secretary should be required to consider whether the threshold
requirements for detention in Article 5(1)(e) (the 'Winterwerp
criteria') are established at that stage. Non-compliance in and
of itself does not mean that those criteria are established: see
Kay v United Kingdom.
11.10. The burden of proof upon
the detaining authority to establish the criteria for compulsion
before the Mental Health Tribunal appears to have been eroded:
see Cl. 36(3), 45(2), 56(3). It has been conclusively established
that Articles 5(1) and 5(4) require the burden to be on the detaining
authority (R (H) v Mental Health Review Tribunal; Reid
v United Kingdom). The wording should be 'If … the Tribunal
is not satisfied that all of the relevant conditions are
met …': see section 72(1) MHA 1983. There is no explanation
why the latter wording appears in Cl. 59(1)(b) but not in the
earlier provisions mentioned.
11.11. As regards safeguards, it
is striking that the Bill removes the role and considerable powers
of the nearest relative under the MHA 1983 and replaces it with
three statutory consultees (nominated person, carer, advocate)
who have no power whatsoever beyond applying on the patient's
behalf to the Tribunal.
11.12. The Bill removes any discretion
in the tribunal or clinical supervisor so that, once the criteria
are met, compulsion must follow. This is by contrast with
the position under the MHA 1983 (and the 1959 Act). Once two
medical recommendations have been made under section 3 MHA certifying
that the criteria for detention are made out, by section 13(1)
the approved social worker is under a duty to make the application
for treatment only 'where he is satisfied that such an application
ought to be made and is of the opinion … that it is necessary
or proper for the application to be made by him'. This discretion
is a vital safeguard for the patient's right to liberty, for example
in those cases where the patient has been recently discharged
by a Mental Health Tribunal in the face of opposition from his
clinical team: see the recent decision of the House of Lords in
R (Von Brandenburg) v East London & The City Mental Health
NHS Trust [2004] 2 AC 280, §11. Similarly, by section
72(1) the Mental Health Review Tribunal has a discretion to discharge
a patient even where it is satisfied that the detention criteria
are made out. The lack of any discretion in the Tribunal under
the Bill is striking and the Government has demonstrated no justification
for the change in the law.
12. The effect of the above features
of the Bill is cumulative: each makes it more likely that those
who do not require compulsion will be compelled to receive treatment;
and those that can be treated in the community will instead be
treated in hospital. Taken together we are satisfied that the
Bill, as currently drafted, does not comply with the requirements
of Article 5(1) and Article 8.
13. We would also wish to add our
voice to the concerns over the practicability of the proposals
for the new Mental Health Tribunal. The Committee has already
heard oral evidence to the effect that the Tribunal administration
is "moderately chaotic".[7]
Delays in tribunal hearings as a result of the over-burdened,
under-resourced system as it exists have been found to violate
the article 5(4) requirement of a "speedy review", entitling
some patients to compensation[8].
While we welcome the single "gateway" to compulsion,
if patients are to become "stuck" in the system under
non-resident orders, then it is highly likely that the new proposals
will extend the administration and resources of the tribunal office
even further with the result that hearings will be delayed.
14. Further, if as anticipated,
the sheer volume of hearings increases significantly, great care
will be required to ensure that the quality of hearings is not
compromised. For example, how detailed will care plans be if
clinical teams are struggling to complete them in time for hearings?
Will the Tribunal be adequately resourced in terms of its membership,
to ensure that care plans are properly tested before applications
for compulsion are approved? We note below at §31 that the
Tribunal's powers regarding care plans are insufficient to ensure
that they are adequate and appropriate. The lack of adequate
safeguards and powers in this regard means that Tribunals are
more likely to make decisions that are wrong. This has implications
not only for the rights of those patients who are wrongly subjected
to compulsion, but also for the protection of the public in those
(rare) cases where patients are wrongly released.
No right to appropriate treatment and
after-care
15. In three respects the Bill
fails to guarantee to patients a right to appropriate treatment
reciprocal[9]
upon the imposition of compulsory powers:
15.1. No enforceable right to treatment
for those detained in hospital or subject to compulsion in the
community.
15.2. No enforceable right to treatment
in the least restrictive environment consistent with the needs
of the patient and the need to protect the public. The lack of
any power in the Tribunal to direct that a patient be transferred
to a hospital which provides an appropriate environment for their
treatment lies at the heart of this problem (see §§33
and onwards, below).
15.3. No enforceable right to aftercare
for patients released from hospital. The duty under section 117
of the MHA 1983 has been repealed, to be replaced by much weaker
obligations in Cl. 53 ('free care services before discharge')
and Cl. 64 and 68.
16. Treating a person under compulsion
as a resident or non-resident patient with attached conditions
constitutes a significant interference with liberty (art. 5) and
private life (art. 8), even more so in conditions of high security.
Although Article 5(1)(e) is not in principle concerned with
suitable treatment (Winterwerp v Netherlands ibid, §51)
or conditions of detention (Ashingdane v United Kingdom
1985) 7 EHRR 528, §44), there must be a sufficient connection
between the ground of detention (unsound mind) and the place of
detention: thus, detention under Article 5(1)(e) is only lawful
if in a 'hospital, clinic, or other appropriate institution.
Moreover, where a patient is detained indefinitely because treatment
(or aftercare services) are not available, that is capable of
giving rise to a violation of Article 5(1) (Johnson v United
Kingdom).
17. Also of relevance are Articles
3 and 8 of the Convention which can, in appropriate circumstances,
impose positive obligations on the State to provide medical treatment
to those in its care (Keenan v United Kingdom).
18. We accept that, as the law
currently stands, it is not possible to claim definitively that
any of Article 5, 3 or 8 give rise to an enforceable right on
the part of a detained patient to treatment for his mental disorder,
except in the most extreme circumstances, or to treatment in the
least restrictive environment possible. However, there is a developing
consensus to the effect that compulsion should give rise to reciprocal
rights to appropriate treatment in the most appropriate environment.
18.1. Central government guidance
issued in September 1999[10]
provides, materially:
Each service user who is assessed as
requiring a period away from their home should have timely access
to an appropriate hospital bed or alternative bed or place which
is in the least restrictive environment consistent with the
need to protect them and the public
18.2. The UN Principles provide
for a right to appropriate treatment that enables care in the
least restrictive setting (Principle 9.1); Rec(2004)10 establishes
the same principle (Art. 8). Principle 1.1 provides for a right
to the best available mental health care; Rec(2004)10 puts the
obligation less strictly, requiring member states to 'take measures'
to provide a range of services of appropriate quality, to make
alternatives to involuntary placement as widely available as possible
(Art. 10).
18.3. The US Supreme Court has
held that unnecessary institutionalisation of those who can, with
adequate support, be cared for in the community constitutes unlawful
discrimination under the Americans with Disabilities Act 1990:
Olmstead v LC, 1999.
19. Thus, even though Convention
case law has not yet recognised a right to treatment other than
in extreme cases, it is arguable that as a "living instrument",
the Convention does now bear such an interpretation (or at least
will during the lifetime of this piece of legislation), particularly
in those cases where treatment is necessary to ensure that a person
is not detained longer than absolutely necessary. At the least,
this is a sound principle that should be contained in modern mental
health legislation.
20. As regards a right to free
after-care services (and free community care services for those
who are subject to compulsion as non-resident patients), the Bill
has removed the strong 'right' to such care currently provided
for by section 117 MHA and has not replaced it. Although Cl.
53 refers to 'free care services etc. before discharge', it only
applies to those who are subject to compulsion in the community.
Moreover, it does not give rise to a free-standing duty (and
correlative right) to such services; it merely disapplies the
charging provisions that apply to other community care duties,
in particular under Part 3 of the National Assistance Act 1948
(which includes services provided under the Chronically Sick and
Disabled Persons Act 1970). Those general community care powers
and duties do not provide the same protection as the specific
created by section 117, in particular (and by contrast
with section 117) they do not impose any duty upon health authorities,
trusts and Primary Care Trusts to provide medical treatment.
21. As regards community care services
provided to those who have been discharged, there is no duty to
provide such services to those for whom aftercare services are
necessary to smooth their path back into the community and thereafter
to remain there. The sole exception involves those patients
who, without such services, would continue to be liable to be
detained. In such cases the Tribunal may defer discharge for
a period of 8 weeks, triggering a duty on the hospital and local
social services authority to provide a Care Plan (within 8 weeks
of the Tribunal's decision to discharge) and to disapply the charging
provisions of other community care provisions for 6 weeks (Cl.
64(4) and 68). If the Tribunal is concerned that a patient may
deteriorate, but cannot say that it will happen within 8 weeks,
it has no power to defer and there is no duty on the relevant
authorities to provide any aftercare.
22. Section 117 has its faults
- in particular, it has been held to give rise to no more than
a duty to use 'best endeavours' to provide such services as are
necessary to enable a patient to be discharged (R (H) v Home
Secretary [2003]) - but it is one of the few community care
provisions in English law that have been found to give rise to
a specific duty (i.e. enforceable in judicial review proceedings)
on the part of Health Authorities, PCTs and local authorities
to meet assessed needs, free of charge. The justification for
treating detained mental patients in this way was obvious to the
House of Lords when it considered arguments by local authorities
that section 117 did not give rise to such a duty: see R v
Manchester CC ex p Stennett [2002], per Lord Steyn:
In the Court of Appeal Buxton LJ observed
… : "the statutory provision is not at all anomalous,
and not at all surprising. The persons referred to in section
117(1) are an identifiable and exceptionally vulnerable class.
To their inherent vulnerability they add the burden, and the
responsibility for the medical and social service authorities,
of having been compulsorily detained. It is entirely proper that
special provision should be made for them to receive after-care,
and it would be surprising, rather than the reverse, if they were
required to pay for what is essentially a health-related form
of care and treatment." I agree. … If the argument
of the authorities is accepted that there is a power to charge
these patients such a view of the law would not be testimony to
our society attaching a high value to the need to care for the
exceptionally vulnerable'
23. It is perplexing that the Government
have chosen to repeal section 117 and replace it with such weak
substitute. We would observe that the positive obligations upon
the United Kingdom under Article 8 (and possibly Article 5) may
include a duty to provide aftercare to those who, without it,
will either not be released or, if released, will relapse and
then be readmitted. The duties created by sections 64 and 68
fall short of that.
24. The process of deferred discharge
for civil patients raises further issues. Clause 63 provides
for a deferral order where no plan has been prepared by the managers
of a hospital and relevant local authority with a statement by
each of post discharge services to be available following discharge
and where all the relevant conditions will be satisfied within
eight weeks if the patient is discharged without post discharge
services. So for a person entitled to immediate discharge ie
in respect of whom the Winterwerp criteria are no longer
fulfilled, but who is likely to deteriorate rapidly without post
discharge services (the "revolving door patient"), a
deferral order must be made.
25. In all cases where there is
no post discharge plan available for a patient, the Tribunal must
perform the feat of projecting 8 weeks into the future to determine
whether or not, in the absence of a discharge plan, all the relevant
conditions are likely to be fulfilled once again. If the answer
is yes, a deferral order must be made. This is not likely to
be a precise exercise even in cases with a history of deterioration.
26. In the absence of a duty in
the relevant authorities to provide such services, or a power
in the Tribunal to compel such provision, a deferral order is
likely to be unworkable, with the consequence of further or prolonged
compulsion if deterioration takes place as predicted, or an unreasonable
delay in achieving discharge if it does not: article 5(1)(e) violation.[11]
The patient is not given the opportunity to benefit from his
or her "wellness".
27. In principle what is the difference
between a patient likely to deteriorate within 8 weeks and one
who is not? Are they both not entitled to post-discharge care?
This provision envisages that a patient entitled to discharge
and who is unlikely to deteriorate within a short period of discharge,
be discharged immediately regardless of the availability of a
post discharge plan.
28. This deferral order does not
appear to be directed at the problem encountered with the deferred
conditional discharge system under current legislation (applies
only to restricted patients). It is not stipulated that where
a Tribunal finds that the relevant conditions would be satisfied
in the absence of post-discharge services being made available,
that continued compulsion would be lawful; in other words that
entitlement to discharge is conditional or provisional upon post
discharge services, thereby making continued compulsion lawful,
if no such services are provided.[12]
29. There is no indication of what
should happen in the event that it takes longer than 8 weeks to
organise post-discharge services. The performance of post discharge
planning and the availability of suitable post-discharge services
are real issues currently affecting the conduct of tribunals.
Compulsory treatment
30. We echo the concerns of other
respondents as to the new framework for the regulation of compulsory
treatment. The proposals seem to have created the worst of both
worlds: they are over-bureaucratic in those cases where there
is little dispute as to what is the proper treatment for the patient,
and inadequate to protect patients where there is a real dispute.
We focus on the latter issue here.
31. We are in favour of the proposal
that the Mental Health Tribunal should now carry responsibility
not only for decisions as to detention but also as to the proper
treatment for patients subject to compulsion. However, our concerns
are these:
31.1. First, although the Tribunal
has been given this jurisdiction, it has been given no criteria
whatsoever to apply in determining whether treatment is justified
(see Clause 46). Given that compulsory treatment engages profound
issues under (primarily) Articles 3 and 8 and a body of case-law
has now developed as to the approach to be taken by a Court in
determining whether such treatment is lawful (in particular the
Court of Appeal decisions in R (Wilkinson) v Broadmoor SHA
and R (N) v Dr M) we find this oversight startling.
31.2. Second, the Tribunal has
no power to order the clinical supervisor to change the proposed
treatment plan; only such amendments as are 'agreed' with the
clinical supervisor may be made (Cl. 46(2)). The Tribunal thus
provides no guarantee of judicial oversight compatible with Article
6 of the Convention.
31.3. Third, although the Bill
creates a (new) right for competent patients to refuse ECT, it
gives no similar right to such patients to refuse medication,
even where such treatment is not necessary to protect the patient
from serious harm or to protect the public from harm. As has
been emphasised by other respondents, in particular the Royal
College of Psychiatrists and Prof. Richardson, the failure of
the Bill to treat detained patients in the same way as non-detained
patients by depriving them of the right of autonomy is discriminatory.
We also consider that it may violate Articles 3 and 8 of the
Convention. There is a developing international consensus to
the effect that detained patients should retain their right to
refuse treatment except where such treatment is necessary to protect
the patient from serious harm or to protect the public from harm:
see
31.3.1. Rec(2004)10 preamble,
Article 1, Article 3 (non-discrimination), Article 12(2), Article
18, Article 20, Article 25 (right of appeal), Article 28;
31.3.2. Articles 5-9 of the Council
of Europe's Convention for the Protection of Human Rights and
Dignity of the Human Being with regard to the Application of Biology
and Medicine: Convention on Human Rights and Biomedicine (opened
to signature at Oviedo on 4 April 1997) (the Bioethics Convention),
in particular Articles 5 & 7.
31.3.3. UN MI Principles, Principles
9 & 11.
31.3.4. Note the approach of the
US Supreme Court, which has held that the right of autonomy cannot
be overridden unless a countervailing state interest of sufficient
importance has been demonstrated by the State: Sell v United
States, June 16 2003
31.3.5. There are plenty of examples
of jurisdictions where a capacity based approach to treatment
have been established, and there is no evidence to suggest that
these have been unsuccessful. For example in Ontario the Health
Care Consent Act 1996 gives statutory authority to the principles
of consent and capacity, without differentiation between treatment
for mental disorder and treatment for any other disorder. The
Canadian Supreme Court recently upheld the right of a mentally
disordered individual to refuse treatment in Starson v Swayze,
2003. Chief Justice McClachlin said this:
75 The
right to refuse unwanted medical treatment is fundamental to a
person's dignity and autonomy. This right is equally important
in the context of treatment for mental illness: see Fleming v.
Reid (1991), 4 O.R. (3d) 74 (C.A.), per Robins J.A., at p. 88: Few
medical procedures can be more intrusive than the forcible injection
of powerful mind-altering drugs which are often accompanied by
severe and sometimes irreversible adverse side effects. Unwarranted
findings of incapacity severely infringe upon a person's right
to self-determination. Nevertheless, in some instances the well-being
of patients who lack the capacity to make medical decisions depends
upon state intervention: see E. (Mrs.) v. Eve, [1986] 2 S.C.R.
388, at p. 426. The Act aims to balance these competing interests
of liberty and welfare: see B. F. Hoffman, The Law of Consent
to Treatment in Ontario (2nd ed. 1997), at p. 3. Neither party
raised the constitutionality of the Act as an issue in this appeal.
76 … The
right knowingly to be foolish is not unimportant; the right to
voluntarily assume risks is to be respected. The State has no
business meddling with either. The dignity of the individual is
at stake.
32. We consider that this developing
international consensus will, in time, be reflected in the approach
taken by the European Court of Human Rights in determining the
ambit of the rights protected by Articles 3, 8 and/ or 14 of the
Convention, at which point the new Mental Health Act will be found
to be incompatible with those Convention rights.
Tribunal has no power of transfer or leave
of absence
33. We share the view of Prof.
Richardson and her Committee that the Tribunal should have power
not only to order a patient's discharge but also to order such
steps as are a necessary precondition to the patient being discharged,
in particular a power to order transfer between hospitals and
leave of absence. At present the new Tribunal has no such power;
in the case of restricted patients the Secretary of State takes
the decision (Cl. 127(2)-(4), Sch. 8, Part 3, para 17), and the
Tribunal is expressly prevented from taking such decisions (Cl.
147(4)).
34. The problem of patients stuck
in inappropriately high conditions of security is a familiar one,
identified in the Tilt Report[13]
in 2000 and since the subject of a concerted Government drive
to provide adequate medium and low secure facilities to enable
such patients to move through the system. While we welcome that
initiative we consider that these decisions are of such importance
to the individual's liberty that they should lie in the hands
of the Mental Health Tribunal. We concede that Article 5(4),
as currently interpreted, does not require the Tribunal to have
jurisdiction to take such essential decisions (Ashingdane v
United Kingdom). Nevertheless we are of the view that the
detention of a patient in inappropriate conditions of security
may violate their rights under Article 8 (see above). The Tribunal
is best placed to make decisions about the level of security a
patient requires having heard all the medical evidence with representations
from the patient, and it is both wasteful and unjust not to allow
the Tribunal to act upon that information.
Lack of adequate safeguards for residual
rights
35. We are concerned that many
of the residual rights that detained patients should enjoy (in
relation to, for example, to seclusion, personal searches, visits
and the like) are to be governed by the Code of Practice rather
than the Bill itself.
36. As regards the Code of Practice,
its provisions will not be binding (Cl 1(2), Parliament has no
power to reject or amend it (contrast Clause 1(11) with section
118(4) MHA) and many functions (in particular those of the Home
Secretary in relation to mentally disordered criminal defendants
and transferred prisoners) are excluded from its remit (Schedule
1).
37. We note that the Court of Appeal
recently ruled that, where decisions are taken affecting a patient's
rights under Article 8 (which includes searches, seclusion, restrictions
on visits etc) the Code of Practice must be followed unless there
is good reason not to do so: R (Munjaz) v Mersey Care NHS Trust.
This case is shortly to be considered by the House of Lords.
Concluding comments
38. We are very grateful for the
opportunity to express our views to the Committee and hope that
our response is helpful and constructive. We will be very happy
to assist in any other way that we can.
NOVEMBER 2004
1 Adopted
by United Nations General Assembly Resolution 46/119 of 17 December
1991. The 'Mental Illness principles' have been recognized as
'the most complete standards for the protection of the rights
of persons with mental disability at the international level …
[these] principles serve as a guide to States in the design or
reform of mental health systems and are of utmost utility in evaluating
the practice of existing systems': Case of Victor Rosario Congo,
Inter-American Commission on Human Rights, Report 29/99Case 11,427,
Ecuador, adopted in Sess. 1424, OEA/Ser/L.V/II). The principles
have been used by international oversight and enforcement bodies
as an authoritative interpretation of the requirements of the
ICESCR and the American Convention on Human Rights ('The Role
of International Human Rights in National Mental Health Legislation',
Department of Mental Health, WHO (2004), p.21). Back
2 Signed by 31
members of the Council of Europe, but not signed by the United
Kingdom Back
3 Art 15(b) provides:
'In appropriate cases, the conclusions of the Committee may take
the form of recommendations to the governments of members, and
the Committee may request the governments of members to inform
it of the action taken by them with regard to such recommendations.' Back
4 See Hansard
20/10/04, column 796W, Rosie Winterton for the Government said:
"The Government fully supports the majority of the Recommendation,
including the principle that involuntary placement of persons
with mental disorder should include a therapeutic purpose. We
had no wish to oppose its adoption. However, because we are in
the process of revising important aspects of legislation in England
and Wales on mental health and mental capacity, we were not in
a position to identify definitively whether there were specific
points in the Recommendation on which we might wish to reserve
our right not to comply. We therefore said that, at this stage,
the United Kingdom wished to reserve its right not to comply with
the provisions of the Recommendation generally." Back
5 Goodwin v United
Kingdom (2002) 36 EHRR 1, §74 Back
6 The same criticism
may be made of mental health orders imposed by the Crown Court:
see Cl. 119(1) Back
7 Professor Genevra
Richardson Back
8 R(KB) and others
Back
9 The Richardson
Committee recommended that the principle of 'reciprocity' be enshrined
in legislation, entitling those who are subject to compulsion
to the treatment that they need. Back
10 Mental Health
- National Service Frameworks, Department of Health, September
1999, page 41 Back
11 Johnson v
UK Back
12 (R (H) v
Home Secretary [2003] Back
13 The 'Report
of the Review of Security at the High Security Hospitals', February
2000 Back
| 
