Joint Committee On Human Rights - Twenty-Third Report

Joint Committee On Human Rights Twenty-Third Report

Appendices

Letter from the Chair to David Lammy MP, Parliamentary Under-Secretary of State, Department

The Joint Committee on Human Rights is considering how to report to each House on the Mental Capacity Bill. It has now carried out an initial examination of the Bill and is provisionally of the view that the Bill should be broadly welcomed from a human rights perspective as a much needed reform which enhances the legal protection for the fundamental rights of people who lack capacity. However, members would be grateful for your answers to a number of questions which arise concerning the adequacy of the various safeguards contained in or envisaged by the Bill. Our starting point is of course the statement made under s. 19(1)(a) of the Human Rights Act 1998, but, as you will be aware, the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act. The Committee has therefore also had regard to other relevant human rights standards in its consideration of the Bill.

The Committee is concerned about the following matters in particular—

1. Involuntary placement

2. Procedural safeguards for informally admitted patients: the so-called "Bournewood gap"

3. Withdrawing or withholding life-sustaining treatment

4. Research

1. INVOLUNTARY PLACEMENT

The European Court of Human Rights has held that no deprivation of liberty of a person considered to be of unsound mind may be deemed in conformity with Article 5(1)(e) ECHR without the opinion of a medical expert: any other approach falls short of the required protection against arbitrariness inherent in Article 5 of the Convention.[171] The only exception to this requirement of prior consultation with a medical expert is in emergencies,[172] in which case the medical opinion can be obtained "immediately after the arrest."

The Court has also held that in order to be "lawful" within the meaning of Article 5(1)(e) ECHR any deprivation of liberty must be necessary in the circumstances:

The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained.[173]

The Joint Committee on the Draft Mental Incapacity Bill identified the authorisation of the use of force against a person lacking capacity or the restriction of such a person's liberty of movement as a problematic feature of the draft Bill. It said "where force or restriction of the person's movement is permitted, the Bill contains no requirement for the risk of serious harm to be immediate, which would justify emergency action being taken." It noted the possibility of this giving rise to detention of incapacitated persons in contravention of the HRA.[174] It recommended that the relevant clause be redrafted to specify that detention can only be justified in a situation of urgency (including an emergency) and that the period of detention should be as short and least restrictive as possible.

The Government in its Response said "We are undertaking further work in relation to [clause 6] and the use of force and restriction of liberty. Bearing in mind ECHR rights, the Government agrees that detention should be as short and least restrictive as possible. We want to capture that requirement in the Bill whilst allowing the care of people with particular needs to continue without undue restriction".[175]

It appears to the Committee, on its initial consideration, that Clauses 5 and 6 of the Bill in its current form still give rise to the same concern, because they contemplate deprivation of liberty without any medical opinion being obtained, and without any provision confining such deprivation to emergency situations. Although clauses 5 and 6 contain important safeguards against the inappropriate use of restraint, the combined effect of the two clauses appears to be to authorise (in the sense of protect against liability for) the use of force or the threat of force to overcome an incapacitated person's resistance in certain circumstances, or restrict their liberty of movement, in order to avert a risk of harm. For example, the power in clause 5 could be used to secure the admission into hospital of a person lacking capacity who is resisting such admission, where the person using or threatening force reasonably believes that the person lacks capacity in relation to his treatment, that it is in his best interests for him to be admitted to hospital for treatment and that it is necessary to admit the person in order to prevent harm to himself.

Without express limitation on the face of the Bill, the Committee is concerned that these provisions are likely to lead to deprivations of liberty which are not compatible with Article 5(1) ECHR, because they do not satisfy the long established requirements that deprivations of liberty be based on objective medical expertise and are necessary in the sense of being the least restrictive alternative. The Bill as drafted therefore does not appear to contain sufficient safeguards against arbitrary deprivation of liberty.

Question 1: Why has the Government not adopted the recommendation of the Joint Committee that the use or threat of force or other restriction of liberty of movement be expressly confined to emergency situations?

Question 2: What are the Government's reasons for saying that the Bill is compatible with Article 5(1)(e) ECHR when its provisions enable deprivation of liberty without being based on objective medical expertise?

Clauses 5 and 6 of the Bill could therefore be relied on to authorise the use of force to make an informal admission to hospital of a person who lacks capacity to make decisions about their treatment and is resisting admission to hospital for treatment, and thereby deprive the person lacking capacity of the procedural safeguards which apply when they are compulsorily admitted under the Mental Health Act 1983, in breach of the requirements of Article 5 ECHR.

Clause 28 of the Bill, which deals with the relationship between the Mental Capacity Bill and the Mental Health Act 1983, does not address this problem. It provides that nothing in the Bill authorises anyone to give a patient medical treatment for mental disorder, or to consent to a patient being given such treatment, if at the time when it is proposed to treat the patient, his or her treatment is regulated by Part IV of the MHA 1983. Part IV of the MHA 1983 deals with consent to treatment, including when compulsory treatment can be given to a patient. The effect of clause 28 is therefore to ensure that the specific statutory safeguards which the MHA 1983 affords in relation to compulsory treatment must always be afforded to those patients to whom it applies. It does not, however, apply to compulsory admission to hospital which is regulated by Part II of the MHA 1983. There is no equivalent provision which requires that the specific statutory safeguards which the Act gives in relation to compulsory admission must always be afforded to those who could be compulsorily admitted.

Question 3: Does the Government intend to extend the scope of clause 28 to make clear that nothing in the Act authorises anyone to admit a person into hospital against his or her will where the conditions for compulsory admission or guardianship under Part II MHA 1983 are met?

Question 4: If not, what are the reasons for the Government's view that there is no incompatibility in this respect between the Bill as it stands and Article 5 ECHR?

2. COMPLIANT INCAPACITATED PATIENTS: THE "BOURNEWOOD GAP"

The judgment of the European Court of Human Rights in HL v UK[176] raises starkly the question whether the absence from the Mental Capacity Bill of any of the procedural safeguards required by Article 5 in respect of compliant incapacitated patients is compatible with the UK's Convention obligations. In light of the judgment of the European Court of Human Rights, the Government can no longer maintain that the current position is Convention compatible and proceed with the adoption of new legislation premised on that assumption. It is now established beyond doubt that the failure to extend various procedural safeguards to a group of vulnerable people who are acknowledged to be excluded from the benefit of the safeguards will give rise to future findings of incompatibility with Article 5 ECHR.

The Government has accepted that the present Bill "may not, by itself, deliver all the necessary safeguards".[177] The Committee notes that the additional procedural safeguards for such patients originally contained in Part 5 of the first draft Mental Health Bill are no longer contained in the latest version of the draft Mental Health Bill. It also notes that the Minister has promised to deliver the appropriate safeguards as soon as possible, but only following a wide consultation as to how to design procedural safeguards which are both effective and proportionate and deliverable in practice. The Committee is concerned at the risk of a prolonged postponement of a remedial measure following the judgment in HL v UK. It is obviously undesirable for the present Bill to proceed to enactment on its original assumption that there was no Bournewood gap to be filled.

Question 5: What possible solutions to the problem of the "Bournewood gap" are currently being considered by the Government?

Question 6: In view of the urgency of remedying the deficiencies identified by the European Court of Human Rights can the Government assure the Committee that the necessary remedial measures will be introduced into the current Bill to ensure Parliament's early attention to the problem?

3. WITHHOLDING OR WITHDRAWING LIFE-SUSTAINING TREATMENT

The Committee is satisfied that the inclusion in clauses 24 to 26 of the Bill of provision for the making of advance decisions to refuse treatment does not itself raise issues of compatibility with Article 2 ECHR, but it has some concerns about whether the safeguards provided are adequate to ensure that such advance decisions do not lead to wrong decisions being made about the existence, validity and applicability of an individual's advance decision to refuse treatment. It is concerned, first, about whether the Bill requires sufficient formality in the making of an advance directive and, second, about whether a person making an advance directive which extends to the refusal of life-sustaining treatment would be aware that artificial nutrition and hydration ("ANH") is classified as "treatment".

Question 7: What is the reason for not requiring that advance directives carry the additional safeguard of having to be made in writing?

Question 8: Is it the Government's intention that a specific advance refusal of ANH would be required in order to be effective as an advance directive?

Question 9: If not, will the guidance in the Code of Practice make clear to people making advance directives that ANH is regarded as treatment and that an advance directive refusing life-sustaining treatment may therefore be interpreted as extending to a refusal of ANH?

In the recent decision of the High Court in the case of Burke,[178] it was held that in order to comply with a patient's right to autonomy under Articles 3 and 8 of the ECHR, an advance directive positively requiring the provision of ANH when they subsequently lack capacity is determinative of the question whether such treatment should be provided. The provisions in the Bill only cover advance directives refusing treatment.

Question 10: In light of the Burke judgment, will the Government be amending clauses 24-26 of the Bill to enable advance directives to be made requiring ANH to be provided, and if not, why not?

The Committee is also concerned that the presumption in favour of life-sustaining treatment is not sufficiently strong in the Bill and that in particular its provisions may have the effect of permitting the withdrawal of ANH from people lacking capacity in circumstances which may breach that person's rights under Articles 2, 3 and 8 ECHR. In Burke, the High Court held that it was hard to envisage any circumstances in which a withdrawal of ANH from a sentient patient, whether competent or incompetent, would be compatible with the Convention. Withdrawal of ANH from a sentient patient lacking capacity would expose the patient to acute mental and physical suffering and therefore be in breach of Article 3, unless the patient's life, if thus prolonged, would from the patient's point of view be intolerable. The only circumstances in which the court could envisage that there would be no breach of Article 3 as a result of the withdrawal of ANH is where it is withdrawn in circumstances where it is serving absolutely no purpose other than the very short prolongation of the life of a dying patient who has slipped into his final coma and lacks all awareness of what is happening.

Under clause 11, for example, a lasting power of attorney in relation to personal welfare decisions includes authority to refuse consent to the carrying out or continuation of a treatment by a person providing health care for the patient concerned.[179] Although the same clause also provides that this does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment unless the instrument creating the power of attorney contains express provision to that effect,[180] this is not in the Committee's view sufficient to safeguard against the possibility of the donee of a power of attorney which expressly extends to life-sustaining treatment purporting to refuse consent to ANH on the ground that the power of attorney includes power to consent to or refuse life-sustaining treatment. The Committee is concerned that there is a danger that the donor of a lasting power of attorney who expressly authorises their attorney to make decisions in relation to life-sustaining treatment, will not appreciate that artificial nutrition and hydration count as "treatment" and that the instrument is therefore conferring authority in effect to refuse food and drink. The significance of this is that the health care professionals will be obliged to comply with such a refusal of consent by the attorney, even if they judge it to be contrary to the best interests of the patient.

Question 11: Will the Government now consider tightening the safeguards in the Bill in light of the Burke judgment?

Question 12: Will the Government amend the Bill to require that any authority to refuse consent to ANH in any instrument creating a power of attorney or any order appointing a deputy be expressly and specifically conferred?

4. RESEARCH ON PEOPLE LACKING CAPACITY

The provisions in the Bill concerning the carrying out of scientific research on people lacking capacity engage the individual's right to dignity and privacy, to be free of inhuman and degrading treatment, and to physical and moral integrity, as well as the State's positive obligations to take steps to protect particularly vulnerable people from harm or exploitation.

It is clear from the relevant international human rights standards, including the European Convention on Human Rights and Biomedicine on which these clauses are said to be based, that research on people lacking capacity is permissible, but only subject to very strict safeguards. The question therefore is the adequacy of the safeguards provided in the Bill. A comparison of those safeguards with the relevant international standards raises a number of questions.

Clause 31(3) of the Bill requires that there must be "reasonable grounds for believing" that the research would not be as effective if carried out only on persons who have capacity to consent. Article 17(1)(iii) of the Convention on Human Rights and Biomedicine, by comparison, stipulates as a condition for the carrying out of such research that "research of comparable effectiveness cannot be carried out on individuals capable of giving consent". It seems to the Committee, on initial consideration, that the introduction of the reference to there being reasonable grounds for believing that the research would be less effective if carried out only on persons with capacity is a significant dilution of the condition contained in the Human Rights and Biomedicine Convention, which states the requirement as a matter of fact rather than a matter of reasonable belief.[181]

Question 13: What is the reasoning behind this departure from the wording of the Convention?

Clause 31(4) of the Bill provides that the research must either have "potential benefit" to the person lacking capacity, without imposing a disproportionate burden, or be intended to provide knowledge of the causes or treatment of, or of the care of, persons affected by the same or a similar condition. Again this appears to the Committee to be a considerably weaker requirement than that contained in the Human Rights and Biomedicine Convention. Article 17 provides that research on persons lacking capacity may only be undertaken if the results of the research have the potential to produce "real and direct benefit" to the health of the person concerned,[182] or, exceptionally, where there is no such potential for direct benefit, where certain additional conditions are met. One of those additional conditions is that the research has the aim of contributing, through significant improvement in the scientific understanding of the individual's condition, to results capable of conferring benefit to the person concerned or others with the same condition.[183]

It is hard to avoid the conclusion that the nature of the benefit from the research required in clause 31(4) of the Bill has the effect of lowering the threshold of when research will be permissible compared to the standards contained in the Convention. The absence of a reference to the potential benefit being "real and direct" in clause 31(4)(a), the breadth of the test for whether the research is intended to add to the sum of general knowledge on the subject under clause 31(4)(b) and the absence of a structure in which it is only in exceptional cases that research may be conducted which does not have the potential to confer a direct benefit on the person concerned, all appear to amount to relaxations of the standards contained in the Convention.

Question 14: In light of the above, what are the reasons for not following the structure and language of Article 17 of the Convention in relation to the nature of the benefit required in order for research to be permissible in the absence of consent?

Clause 31(5) contains additional conditions that must be satisfied if the research in question does not have the potential to benefit the person lacking capacity but is intended to provide knowledge of the causes, treatment or care of the condition. The additional conditions are that there must be reasonable grounds for believing that the risk to the person lacking capacity from taking part in the research is likely to be negligible, and that anything done to the person will not interfere with their freedom of action or privacy in a significant way or be unduly invasive or restrictive. Article 17(2)(ii), by comparison, requires that the research must entail "only minimal risk and minimal burden for the individual."

The Committee is concerned that the provision in the Bill is a much weaker requirement than that contained in the Convention. The introduction again of a reference to "reasonable grounds for believing", the reference to "negligible" rather than "minimal", and the introduction of the qualification that the impact on the person's rights should not be "significant", all appear to reduce the threshold for the carrying out of research on people lacking capacity, and therefore make it more likely that such research will be carried out in circumstances which are not contemplated by the Human Rights and Biomedicine Convention.

Question 15: What is the reason for providing weaker additional conditions than the Convention?

By clause 31(1) of the Bill, the "appropriate body" may not approve a research project unless satisfied that a number of requirements are met in relation to the research carried out for the project. The "appropriate body" is defined by the Bill to mean "the person, committee or other body specified in regulations made by the Secretary of State as the appropriate body in relation to a project of the kind in question".[184] The Bill contains no further definition of the appropriate body or of the procedures by which it is to decide whether or not to approve a research project. The Explanatory Notes merely say that "the Secretary of State must specify an appropriate authority for approving research projects" and that this authority is "likely to be a research ethics committee".[185] The Minister, however, has made clear that it will not necessarily be a research ethics committee.[186] It might, for example, be a different type of body if the nature of the research project is different, such as a social care research project.

The Human Rights and Biomedicine Convention stipulates as one of the conditions that must be satisfied before research can be undertaken on a person that "the research project has been approved by the competent body after independent examination of its scientific merit, including assessment of the importance of the aim of the research, and multi-disciplinary review of its ethical responsibility".[187] Precisely how the appropriate authority will go about deciding whether to approve a research project on people lacking capacity is an important part of the scheme providing for research. Without such information it is impossible for the Committee to assess whether an important element of the procedural protections required by the Convention on Human Rights and Biomedicine is satisfied.

Question 16: Please provide more detail of how the "appropriate body" which will be specified in regulations will conduct its work of deciding whether or not to approve a particular research project.

REPRESENTATIONS

The Committee would also be grateful for a description of any representations you have received in connection with this Bill in relation to human rights issues, and to what specific points those representations were directed.

The Committee would be grateful for a response to its question as early as possible, and in any event no later than 15 December.

18 November 2004

36">Appendix 2: Housing Bill

2a. Letter from Rt Hon Keith Hill MP, Minister for Housing and Planning, Office of the Deputy

Prime Minister, to the Chair, re the Housing Bill: Clause 207 and the Eighth Report

1. This letter responds to the concerns raised in the Eighth Report of the Joint Committee on Human Rights (the Committee). After careful consideration of the issues raised in paragraph 4.24 of the report we have the following comments which I hope will satisfy the Committee's concerns.

2. At paragraph 4.24 of the Eighth Report, the Committee raised concerns about clause 207 of the Housing Bill (clause 185 at the time of the Report). This clause provides for the disclosure of information to registered social landlords (RSLs) for the purposes of section 1 of the Crime and Disorder Act 1998.

3. The Committee's concerns were that information may be passed to RSLs, without there being any obligation on them to deal with that information in conformity with Convention rights. The Committee recommended that the Bill should specify that, in relation to information received under section 115 of the Crime and Disorder Act 1998, RSLs should be considered to be performing a public function and therefore be subject to section 6 of the Human Rights Act 1998.

4. We have considered carefully the Committee's concerns and have discussed with Parliamentary Counsel how we might follow the Committee's recommendations without causing difficulties for RSLs or in future legislation. We have concluded that we are unable to make the amendments to clause 207 recommended by the Committee for the reasons set out below.

5. In the Department's view, the amendments recommended by the Committee are unnecessary as section 6 of the Human Rights Act will apply where information is received by an RSL under section 115 of the Crime and Disorder Act.

6. While the Government's position remains that RSLs are private bodies, the Court of Appeal has held that, for the purposes of the Human Rights Act, RSLs are hybrid bodies and consequently some of its functions are capable of being public in nature while some of its functions remain private.[188] Where a function is public in nature, section 6 applies and the body concerned must carry out those functions in a way that is compatible with convention rights. In our view the power to receive information under section 115 of the Crime and Disorder Act will be a function of a public nature as it is intrinsically linked to the power in section 1 of that Act to apply for an anti social behaviour order. It therefore must be exercised compatibly with Convention rights.

7. In addition to the amendment being unnecessary, we are concerned that, if we were to make the amendment recommended by the Committee, it might bring into question the applicability of section 6 of the Human Rights Act 1998 where a private body has public functions but section 6 is not expressly applied by primary legislation.

8. We trust that the Committee will find this explanation as to why we are not taking forward the Committee's recommendations in relation to clause 207 is satisfactory.

21 October 2004

2b. Letter from the Chair, to Rt Hon Keith Hill MP, Minister for Housing and Planning, Office of the Deputy Prime Minister, re Connors v UK

As part of the Joint Committee on Human Rights' ongoing review of decisions of the European Court of Human Rights finding the UK in breach of the European Convention on Human Rights (ECHR), I am writing to inquire about implementation of the decision of the Court in Connors v UK in May of this year.

In that case, the Court found that the summary eviction of a family from a local authority gypsy caravan site, without reasoned justification or sufficient procedural safeguards, breached the right to respect for private life and the home under Article 8 ECHR. The Court found no evidence that the specific circumstances of the gypsy community established a need for summary eviction procedures, without the procedural safeguards available to other local authority tenants. The summary eviction could not therefore be justified as responding to a pressing social need, or as proportionate to a legitimate aim, and was in breach of Article 8.

I would be grateful if you could provide the Committee with details of your department's response to this case. As you will be aware, the UK is under an obligation under Article 46 of the Convention to introduce general measures to prevent a future repetition of the violation in other cases. We understand that in correspondence with Lord Avebury, you have proposed referring the matter to the Law Commission. In our view rectification of the incompatibility identified by the Court could be achieved by a straightforward amendment to the definition of "protected site" under the Mobile Homes Act 1983. We also understand that an amendment to the Housing Bill to this effect has been drafted by the CRE and will be proposed by Lord Avebury. In light of this, and of the Court's recognition of the gravity of the interference with Article 8 rights involved in the case, it might be thought more appropriate to rectify the incompatibility by the more expeditious route of an amendment to the Housing Bill, or by way of remedial order under the Human Rights Act. If it is the case that the Government has decided not to proceed by one of these routes, we would appreciate your reasons for that decision.

12 October 2004

2c. Letter from Rt Hon Keith Hill MP, Minister for Housing and Planning, Office of the Deputy Prime Minister, to the Chair, re Connors v UK

Thank you for your letter of 12 October 2004 concerning the Government's response to the Connors v UK case in the European Court of Human Rights.

As you will know, Clauses are now contained in the Housing Bill which go some way to resolving the issues raised in this case. Clause 203 addresses a longstanding anomaly in relation to county council Gypsy and Traveller sites by including these sites within the definition of 'protected sites' under s1 of the Caravan Sites Act 1968. This will ensure that the security of tenure of those occupying county council caravan sites is the same as those occupying other local authority sites, i.e. that possession can only be obtained by a court order, and that 28 days minimum notice must be given before possession is sought.

Clause 205 goes further, and provides the courts with the power to suspend eviction orders against those occupying local authority sites. Section 4 of the Caravan Sites Act 1968 already gives discretion to a court to suspend eviction orders made in respect of most privately owned caravan sites, but until now, that discretion has not been available for eviction orders made in respect of local authority owned sites. Clause 205 addresses this issue: in cases where an eviction order would ordinarily result in outright eviction, courts will be able to suspend any order for a period of up to 12 months.

As examples, if possession is sought because of breaches of the occupation agreement, such as rent arrears, the eviction order could be suspended so long as the rent was paid in future, plus regular payments towards the arrears. In cases that deal with anti-social behaviour on sites, the eviction order could be suspended so long as the occupier's behaviour was acceptable.

You will also be aware that we are considering the tenure of local authority Gypsy and Traveller sites as part of our aim to mainstream site provision, one of the options being to look at the comparison with social housing. You will appreciate that this area of housing law is highly complex, and given the timescales involved it has not been possible to include appropriate measures in the Housing Bill. The Law Commission is undertaking a review of rented tenure and is due to report early next year. It is our intention to consider the security of tenure of Gypsy and Traveller sites in the context of that review.

1 November 2004

171 Varbanov v Bulgaria, App. No. 31365/96 (5 October 2000), at para 47 Back

172 "in urgent cases or where a person is arrested because of his violent behaviour." Back

173 Witold Litwa v Poland, above, at para. 78 Back

174 Joint Committee Report para. 132 Back

175 Government Response, R 43 Back

176 App no. 45508/99 (5 October 2004) Back

177 HC Deb., 28 October 2004, col. 251 Back

178 R (on the application of Burke) v The General Medical Council [2004] EWHC 1879 (Admin) (30 July 2004) Back

179 Clause 11(6)(c) Back

180 Clause 11(7)(a) Back

181 The Adults with Incapacity (Scotland) Act 2000 uses the unqualified formulation contained in Article 17(1)(iii) of the Convention. Back