2. Submission from the Mental Health Act
Commission
Since the passing into law of the Anti-Terrorism,
Crime and Security Act 2001 (ATCSA), two persons detained under
that Act who have been found to be suffering from mental disorder
have been transferred from prison to high secure psychiatric facilities
using powers of the Mental Health Act 1983. The care and treatment
of these patients subject to powers of the Mental Health Act 1983
falls within the overview of the Mental Health Act Commission.
We have met with the patients in private and discussed their concerns
and complaints, referring complaints to the hospital management
for resolution through NHS procedures where appropriate.
The case of one transferred detainee, Mr Abu Rideh,
has received considerable national publicity. The Commission is
concerned at the appropriateness of Mr Rideh's placement within
the high security services of Broadmoor Hospital and recognises
that this concern is shared by a number of other parties including
the patient, his family, civil liberties organisations such as
Amnesty International, and a number of the hospital's clinical
and managerial team. The Commission does not dispute that hospital-based
treatment for mental disorder may be appropriate in Mr Rideh's
case, but it seems highly possible that the clinical requirements
for such treatment would be better served in conditions of lesser
security. It is of great concern to us that continued detention
in a high security hospital may be detrimental to Mr Rideh's mental
state.[164]
The Secretary of State for the Home Department determined
that Mr Rideh should be transferred to Broadmoor Hospital in 2002.
In exercising his powers relating to the transfer under the Mental
Health Act 1983 of sentenced or unsentenced prisoners, and in
determining appropriate levels of security in hospital accommodation
for such transferred prisoners, the Home Secretary is entitled
to consider issues unrelated to a patient's mental disorder or
clinical needs—such as whether a patient requires high security
provision for reasons unrelated to his illness.[165]
The Home Office has recently stated to the media that 'Broadmoor
is an appropriate setting for Mr Abu Rideh, taking into account
his clinical needs and the risk that he presents to the public'
and that Mr Rideh 'is detained in a high security hospital because
he is a risk to national security'.[166]
The Commission has written to the Home Office seeking
reassurance as to the necessity of detention at this level of
security on non-clinical grounds. We asked whether it was Home
Office policy to insist on high security hospital accommodation
for any hospital transfer under the 1983 Act of a person certified
under Part 4 of ATCSA, or whether each case is considered individually.
We have received a response that each case is assessed on the
basis of individual needs, and that the initial assessment of
the Home Secretary is ensured regular review through the mechanisms
of the Special Immigration Appeals Commission (SIAC) and Mental
Health Review Tribunal (MHRT). Our concerns are not wholly assuaged
by this, however.
Any mentally disordered prisoner who meets the basic
criteria for transfer to hospital under the 1983 Act could be
transferred to high secure provision for reasons, such as public
safety or national security, that are unconnected with his or
her mental disorder. But prisoners detained under the ATCSA appear
to be unusually disadvantaged in terms of the transparency of
such transfer decisions. Primarily, of course, this may be a reflection
of the conditions for detention under ATCSA itself, which have
been the subject of sustained criticism from civil liberties groups,[167]
but we also question whether existing review mechanisms can ensure
that the justification for particular placements can be thoroughly
addressed.
One criticism of ATCSA, presented by Amnesty International
as a memorandum to the UK Government in September 2002, contended
that 'ATCSA detainees are not afforded the opportunity to challenge,
in the context of fair proceedings, any decisions pursuant to
the ATCSA which negatively affects their status or rights as recognised
refugees or asylum-seekers in the UK.[168]
We are concerned as to whether a similar criticism is viable in
relation to decisions over the transfer of mentally disordered
ATCSA detainees to hospital under the Mental Health Act 1983.
It seems questionable whether the review mechanisms of the MHRT
and SIAC can provide an opportunity for a fair challenge of decisions
over the appropriate level of security provision. In part, this
is simply because the patient and his legal adviser will not be
party to all of the evidence available to the judicial body, at
least in the case of SIAC hearings. In the case of the MHRT, the
judicial body itself cannot be a party to all the evidence that
has been presented as justification of the patient's certification
under Part 4 of ATCSA, and has no business in considering whether
such certification is valid. We presume that SIAC hearings regarding
transferred prisoners do not adopt the evidential and procedural
focus on clinical appropriateness of the MHRT. In theory, the
two judicial bodies have discrete roles, with SIAC reviewing certification
under ATCSA and the MHRT reviewing detention under the Mental
Health Act 1983, but in reality it is not a simple matter to disentangle
one legal mechanism, or the justification for its use, from the
other, particularly when the justification for placement in high
secure provision is argued on non-clinical grounds.
The Commission has not been a party to either SIAC
or MHRT hearings in the case of Mr Rideh, and our request to the
MHRT for information on the Tribunal's ruling has been declined.
However, from the limited information available to the Commission
at this time, we understand that the last SIAC hearing upheld
the certification of Mr Rideh under Part 4 of ATCSA whilst recommending
consideration of lesser secure psychiatric provision, whereas
the more recent MHRT hearing confirmed that he met the criteria
for detention in hospital under the powers of section 48, but
made no recommendation regarding security levels. The apparent
divergence of judicial bodies' recommendations, and the curious
fact that the body reviewing ATCAS has commented upon appropriate
hospital environments whereas the body responsible for reviewing
detention under the 1983 Mental Health Act appears not to have
done so, raises with us questions about the scope and focus of
these reviews. The Commission is clearly not entitled to examine
the working of SIAC, and does not extend its monitoring to the
functions of the MHRT.[169]
Consequently it has neither resources nor access to investigate
this question fully. Furthermore, we understand that the MHRT
decision is now the subject of judicial review proceedings in
which permission has been granted and a hearing date is awaited.
The Mental Health Act Commission functions as a safeguard
for patients detained under the 1983 Act, through its monitoring
of the use of powers and discharge of duties of that Act, and
in its visiting of such patients in their hospital environments.
The fact that large areas of the justification for the detention
of transferred ATCSA patients remain closed to our scrutiny provides
us with considerable disquiet, particularly as it seems possible
that the structures of formal review for such detention may also
have similar limitations imposed by levels of proof, availability
of evidence and transparency of process. We hope that in drawing
our disquiet to the attention of the Joint Committee on Human
Rights we have been of help in its inquiry.
18 June 2004
164 Mr Rideh was granted refugee status (now rescinded
under ATCSA) in 1997.He has been diagnosed with post-traumatic
stress disorder relating to detention and alleged torture overseas.
It has been alleged that detention in conditions of high security
and isolation at Belmarsh Prison have contributed to his mental
deterioration by inducing flashbacks (Amnesty International (2002)
Rights Denied: the UK's Response to 11 September 2001, September
2002, AI Index EUR 45/016/2002, page 15). Back
165
Section 48 of the Mental Health Act 1983 allows the transfer of
unsentenced prisoners to hospital at the Secretary of State's
discretion, where the prisoner is suffering from mental illness
or mental impairment of a nature or degree which makes it appropriate
for him to be detained in a hospital for medical treatment and
is in urgent need of such treatment. This threshold is considerably
lower than that for detention in hospital under the civil powers
of the 1983 Act, which also requires that treatment must be necessary
for the health and safety of the patient or for the protection
of others and that such treatment cannot be given unless the person
is so detained. Back
166
Quoted in Audrey Gillan 'Give me an injection and I will be dead',
The Guardian 5/5/04 Back
167
In particular, we have in mind the criticisms of ATCSA Part 4
certification as a form of detention without charge or trial,
without legal representation of choice and without disclosure
of evidence to the accused. Back
168
Amnesty International (2002) Amnesty International's Memorandum
to the UK Government on Part 4 of the Anti-Terrorism, Crime and
Security Act 2001.AI Index EUR 45/017/2002, page 2. Back
169
Some legal commentators argue that the 1983 Act does, in fact,
place the Commission under a legal obligation to review the operation
of the MHRTs as they relate to detained patients by virtue of
the lack of specific exclusion (i.e. Jones, R (2003) Mental Health
Act Manual, Eighth Edition, p461).At the request of the Secretary
of State, and because of the supervision of the Council of Tribunals
and the mechanisms of legal appeal against the judicial decisions
of the MHRT, the Commission has throughout its existence confined
its observations on MHRTs to the general. The Commission has suggested
to the Secretary of State that this arrangement may be less tenable
under proposed reform of the Mental Health Act (MHAC (2003) Placed
Amongst Strangers; Tenth Biennial Report 2001-03, p283). Back
|
