Joint Committee On Human Rights Written Evidence

5.  Submission from the Mental Health Act Commission to the JCHR's inquiry into counter-terrorism policy and human rights

  The Mental Health Act Commission functions as a safeguard for patients detained under the Mental Health Act 1983, 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.

  In June 2004 we submitted evidence to the Joint Committee on Human Rights[2], in which we expressed our concerns over the treatment of detainees under the Anti-Terrorism Crime and Security Act (ATCSA) who had been transferred out of prison using Mental Health Act powers. We were particularly concerned over the apparent policy that such detainees should receive treatment in conditions of high security at Broadmoor Hospital, irrespective of whether such a placement was clinically appropriate. We highlighted the case of one detainee, Mahmoud Abu Rideh, who was admitted to Broadmoor Hospital at the Home Office's insistence despite considerable opinion (including that of the doctor who was to treat him in Broadmoor Hospital) that it was an inappropriate placement.

  In response to the Committee's call for further evidence, we would like to draw attention to the following points.


  In our 2004 evidence, we set out our concerns at Government's apparent assumption that anti-terrorism detainees requiring psychiatric inpatient treatment should be sent to Broadmoor Hospital, irrespective of clinical need. It was revealed in June 2005 that the European Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had visited one of the detainees, Mr Abu Rideh, in March 2004 and had informed the UK Government that it believed his placement at Broadmoor Hospital to be clinically inappropriate. The CPT noted apparent serious deterioration of Mr Abu Rideh's condition and feared permanent damage. Following its visit the CPT requested his transfer as a matter of urgency to a different type of treatment facility.[3] We knew nothing of this at the time that we were visiting Mr Abu Rideh at the hospital.

  The Government has categorically rejected the assertion of the CPT that the situation of ATCSA detainees, including that relating to the Mr Abu Rideh, "could be considered as amounting to inhuman or degrading treatment" implying a breach of Article 3. The UK Government maintains that throughout their detention individuals received "humane and decent treatment and the appropriate levels of medical and psychological care".[4] We do not doubt that, with some exceptions in the case of staff members who were disciplined following substantiated complaints made by Mr Abu Rideh, the clinical and nursing staff at the hospital did indeed do their best to provide humane and decent care. We do question whether the placement should be described as having been an "appropriate level" of care.

  In the published response to the CPT, the Government stated that the Home Secretary's decision that a High Security Hospital placement was appropriate for Mr Abu Rideh "was accepted by the MHRT . . . an independent judicial body, which has powers under the Mental Health Act 1983 to discharge restricted patients".[5] In our view this response is factually incorrect, for the following reasons:

    (i)  The response does not make clear that the risk assessment upon which the Home Secretary justified a High Security Hospital placement was focussed upon his suspicion that Mr Abu Rideh was a "terrorist" as broadly defined at s 21 of ATCSA[6], rather than upon his mental state and consequent need for particular levels of psychiatric care. In this sense, however, we concede Mr Abu Rideh was not treated differently to any other transferred prisoner, in that the security requirements for a patient's care need not be limited to clinical requirements alone, but must take account of wider security needs including those presented by the nature of the criminal charge or conviction against that patient.

    (ii)  However, Mr Abu Rideh was treated differently in comparison with other transferred prisoners (ie those detained under powers other than ATCSA) in that the allegations against him that would justify the level of security required for non-clinical aspects of his detention were neither revealed to the patient, his legal representative, nor the MHRT. Instead, the justification for high security care in Mr Abu Rideh's case was presented to the MHRT in the form of previous executive and judicial (SIAC) determinations over his certification as a suspected "terrorist" within the broad meaning established under s 21 of ATSCA. More importantly, given the role that the Government has claimed for the MHRT in its response to the CPT report, the Secretary of State made representation to the MHRT arguing that the MHRT had "neither jurisdiction, competence or expertise in relation to matters of national security and no remit to question the Secretary of State's belief over national security".[7] The question of the appropriate level of security was therefore argued by the Secretary of State to be "a matter for the Secretary of State and not the Tribunal" so that it was "plainly inappropriate for the Tribunal in any way to comment upon the level of security which is appropriate for Mr Abu Rideh's detention".[8] The solicitor acting for Mr Abu Rideh at his MHRT hearing, Ms Lucy Scott-Moncrieff, has written that she was told on the day of the MHRT hearing by counsel for the Home Office that if she attempted to argue that Mr Abu Rideh could safely be moved to a specialist nursing home which had been identified as potentially suitable for his care by his clinical team at Broadmoor Hospital, a Home Office witness would be called to give evidence that other allegations, including allegations of violent or potentially violent behaviour, "might" have been made in closed session of previous SIAC hearings.[9]

    (iii)  We understand that Mr Abu Rideh's lawyers had been given no indication that violent behaviour or intended violence was alleged in connection with SIAC hearings (including information given at the time of the SIAC hearings indicating in broad terms the essence of evidence presented in closed session). The insinuation of undisclosed allegations regarding violence or intended violence outside of the MHRT hearing by Home Office counsel raises the disturbing question of which of the Home Office's accounts of its allegations against Mr Abu Rideh was accurate (ie it would appear that either the summary of the SIAC closed-session evidence was incomplete, or the insinuation made outside the MHRT hearing was groundless). This apparent inconsistency would seem to seriously undermine the public credibility of the "closed" evidence justifying detention or detention at particular levels of security.

    (iv)  The Government response to the CPT report is disingenuous in implying that the MHRT's "powers under the Mental Health Act 1983 to discharge restricted patients" were exercisable in relation to Mr Abu Rideh. The Home Secretary, having told the Tribunal that it was not appropriate for it to consider making any recommendations regarding transfer to lesser security hospitals, further argued to the Tribunal hearing that the question of whether Mr Abu Rideh should be discharged from hospital had to be approached "by reference to the practical alternative": ie whether he should be returned to prison. The Tribunal duly accepted that "the reality is that the Tribunal's decision could only result in the patient being returned to prison . . . or remaining in Broadmoor or some other secure hospital".[10]

  We note that the CPT was "not convinced" by the reply of the UK Government that Broadmoor Hospital was the most appropriate setting for Mr Abu Rideh in view of his clinical needs and the risks he presents to the public.[11] The Committee concluded that the approach of the UK Government "which appears to give little weight to therapeutic considerations—and thus to the patient's well-being—is not, in the opinion of the Committee, acceptable".[12]


  The CPT recommended that UK authorities should take the necessary steps to ensure that Mr Abu Rideh, "whose mental state has seriously deteriorated whilst in detention, benefits without further delay from the whole range of treatment required by his condition".[13] All those detainees who were transferred to hospital under the Mental Health Act should have been entitled, under s 117 of that Act, to appropriate aftercare upon discharge from hospital.

  We are greatly disappointed at reports of poor provision and lack of support offered the men, exacerbated by the conditions of control orders attached to their release.[14] In Mr Abu Rideh's case, the lack of support was exacerbated by imprisonment for breaches of the restrictions placed upon him by his control order, despite attempts at suicide whilst in prison and the availability of an alternative hospital placement. The Home Office could have changed the terms of Mr Abu Rideh's control order to facilitate hospital rather than prison disposal following the court hearing in May 2005 but did not do so.[15]

  Although the timing and arrangements for the detainees' release under control orders was in the hands of the Home Office, we are not aware that it requested or facilitated the involvement of other agencies in assessing or providing support and aftercare to the detainees upon their release from hospital. In this way the fulfillment of a legal duty under the Mental Health Act 1983 appears to have been frustrated.


  We are extremely concerned that men whose previous imprisonment led to serious mental disorder and transfer under the terms of the Mental Health Act have now been reincarcerated under the terms of the 1971 Immigration Act on an indefinite basis, whilst awaiting deportation to countries once diplomatic assurances have been received that they will be neither killed nor tortured there.

  The solicitor for many of the 10 men detained on these grounds since August 2005 has informed the press that five are suffering from serious mental disorder, and at least half of the men are reported to have been those subject to control orders.[16] We understand that at least one such detainee has attempted suicide in prison whilst awaiting deportation. One detainee, who had been treated in Broadmoor Hospital prior to his release under the terms of a control order in March 2005, has now been re-admitted to the hospital from the prison where he had been held since August under Immigration Act powers and where his mental condition once again deteriorated to the point where he was in need of urgent transfer. We understand that the placement in Broadmoor Hospital is the result of a direction from the Home Office, and that the clinical team in Broadmoor Hospital remained of the opinion that a hospital of lesser security would provide a more appropriate clinical environment.

  The concerns that we raised with the Committee in June 2004 have therefore once again become relevant to the treatment of persons under detention in the United Kingdom's penal and psychiatric system. Apparent Government policy to transfer detainees requiring inpatient psychiatric treatment to Broadmoor Hospital (or another High Security Hospital) irrespective of clinical requirements or the potential for such placements to be further deleterious to their mental health, may be in contention with the prohibition of inhuman treatment or punishment under Article 3 of the European Convention on Human Rights (ECHR). The proportionality of executive directions to High Security Hospital facilities in the face of clinical opposition is all the more questionable where the State has, until recently, allowed those that it had labeled "terrorists" under the general definition of ATCSA to live in the community subject to control orders.

  We are of the view that the State is obligated with a heightened duty of care towards detainees who are released from detention under the Mental Health Act by virtue of s 117 of that Act. Where the use of mental health powers was in response to mental disorder caused or exacerbated by previous incarceration, the State may be failing in this legal duty (and in danger of failing in its duties to protect life under ECHR Article 2 insofar as its actions may increase risks of suicide amongst its detainees) in returning men to prison (or even to High Security Hospital care) where their mental health will be further imperiled. We are mindful that the detainees continue to face indefinite detention without charge and with neither the detainees nor their legal teams being informed of the evidence against them that was the basis of previous detention and now renders their presence in this country undesirable. We note the view of the British Psychological Society[17] that this is the "toxic element" causing serious mental health problems: our limited oversight of the processes of appeal undertaken by Mr Abu Rideh over the last year, which we have discussed under heading 1 above, suggests that it also may seriously compromise the detainees' ability to exercise their rights of liberty and security of person under ECHR Article 5 and right to a fair trial under Article 6. Insofar as dispersal of detainees to unknown destinations pending deportation arrangements may have severed connections between them and their families in this country and abroad, rights to family life under ECHR Article 8 may also be engaged.

12 October 2005

2   Joint Committee on Human Rights Review of Counter-terrorism Powers 18th Report of Session 2003-04, HL Paper 158, HC 713, Appendix 2. Back

3   Council of Europe (2005a) Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 14 to 19 March 2004. CPT/Inf (2005)10. Strasbourg, 9 June 2005. Para 7. Back

4   Council of Europe (2005b) Response of the United Kingdom Government to the report of the European Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to the United Kingdom from 14 to 19 March 2004. CPT/Inf (2005)11. Strasbourg, 9 June 2005. Para 15. Back

5   Council of Europe (2005b) para 26. Back

6   s 21 of ATCSA 2001. It would seem from the SIAC judgment of October 2003 that Mr Abu Rideh was detained under suspicion of "having links" with terrorist groups, and that the main focus of such suspicion was his fund raising activities related to his charitable work. Back

7   Outline submission of the Secretary of State for the Home Department for Mr Abu Rideh's MHRT hearing of the 9 January 2004. Back

8   ibidBack

9   London Review of Books "Suspicion of Terrorism; Lucy Scott-Moncrieff on Mahmoud Abu Rideh, detained without trial". 5 August 2004, p 22-24. The nursing home had been identified by the RMO in charge of Mr Abu Rideh's treatment to provide him with appropriate treatment and care, and also meet the security requirements of the Home Office through preventing unsupervised access to telephones and providing escorts whenever he went out. Within three months of opposing such arrangements, the Home Office released Mr Abu Rideh on bail arrangements with little psychiatric support and an electronic tag as a security measure. Back

10   Application of Mahmoud Abu Rideh, hearing 9 January 2004, Broadmoor Hospital. Reasons for the Tribunal's decision, para 12. Back

11   Council of Europe (2005a), para 11. Back

12   ibid. Back

13   ibidBack

14   See, for example, Michael White and Vikram Dodd "Teething troubles hit new terror act", The Guardian 14 March 2005; Audrey Gillan and Falsal al Yafai "Control orders exposed", The Guardian, 24 March 2005. Back

15   Audrey Gillan "Terror suspect returned to jail" The Guardian 5 May 2005. Back

16   James Sturke and Agencies "Ten detained over `threat to national security'" The Guardian, 11 August 2005. Back

17   Joint Committee on Human Rights Review of Counter-terrorism Powers Eighteenth Report of Session 2003-04, HL Paper 158, HC 713, Appendix 5, p 73. Back

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