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.
1. THE USE
OF BROADMOOR
HOSPITAL TO
RECEIVE DETAINEES
TRANSFERRED FROM
THE PRISON
SYSTEM: THE
GOVERNMENT'S
RESPONSE TO
THE EUROPEAN
COMMITTEE ON
THE PREVENTION
OF TORTURE
AND INHUMAN
OR DEGRADING
TREATMENT OR
PUNISHMENT
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]
2. THE INADEQUACIES
OF AFTERCARE
PROVISION FOR
THOSE DETAINEES
RELEASED FROM
BROADMOOR HOSPITAL
IN MARCH
2005
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.
3. THE REINCARCERATION
OF DETAINEES
PREVIOUSLY TRANSFERRED
FROM THE
PRISON SYSTEM
ON HEALTH
GROUNDS
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
ibid. Back
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
ibid. Back
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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