Joint Committee On Human Rights Fifteenth Report


Appendices


Appendix 1a: Letter dated 1 April 2007 from Rt Hon. Rosie Winterton MP, Minister of State, Department of Health, re Mental Health Bill

1  Following the publication of your report on the Mental Health Bill on 4th February 2007, I thought it would be helpful if I provided further explanation of those areas in which the Committee had concerns. We believe that the proposals in the Mental Health Bill ("the Bill") are compatible with Convention Rights guaranteed by the Human Rights Act 1998, and as I have already said, we have taken great care in developing new mental health legislation to make it compliant with the European Convention on Human Rights ("the Convention"). We go through your concerns point by point and hope your Committee will find this further explanation of our approach helpful.

(1) Detention on Grounds of Unsoundness of Mind

1  In order for a non-emergency detention on grounds of unsoundness of mind to conform to the requirements of Article 5(1) (e) ECHR, there must be reliable evidence of a true mental disorder. We are concerned at the possibility that a person with Gender Identity Dysphoria or transvestic fetishism, which are recognised aspects of private life under Article 8, might be detained on grounds of mental disorder without any actual mental disorder such as depression or actual personality disorder. A person with Gender Identify Dysphoria or transvestic fetishism should not be detained unless there is evidence, other than the manifestation of such alternative sexuality or gender identity, that the person suffers from a mental disorder. (Paragraph 14)

2  The Government agrees with the Committee that in order for a non-emergency detention on grounds of unsoundness of mind to conform to the requirements of Article 5(1)(e) of the Convention, there must be reliable evidence of a true mental disorder. It agrees with the Committee's analysis at paragraph 9, in particular with the requirements in Winterwerp v the Netherlands[40] ("Winterwerp"), which must be met for the lawful detention of persons of unsound mind.

3  For the reasons outlined below, the Government considers that the changes to the definition of the mental disorder and the removal of the sexual deviancy exclusion do not affect compatibility with the requirements of Article 5(1)(e), as interpreted by Winterwerp, for lawful detention of persons of unsoundness of mind.

(i)  True mental disorder established by objective medical evidence

4  Mental disorder is defined in the Bill as "any disability or disorder of the mind". As the Committee notes at paragraph 8, the Government considers that this definition is consistent with Article 5(1)(e) which uses the term unsoundness of mind, and it refers to previous correspondence on this point.

5  The Committee states that it is "concerned at the possibility that a person with Gender Identify Dysphoria or transvestic fetishism, which are recognised aspects of private life under Article 8, might be detained on grounds of mental disorder without any actual mental disorder such as depression or actual personality disorder. A person with Gender Identity Dysphoria or transvestic fetishism should not be detained unless there is evidence, other than the manifestation of such alternative sexuality or gender identify, that the person suffers from a mental disorder" (paragraph 14).

6  The Government is unclear from the above passage whether the Committee is suggesting that gender dysphoria and transvestic fetishism, without the presence of another recognised mental disorder such as personality disorder, are not "true mental disorders". If this is the case, the Government questions the basis of this view.

7  Gender dysphoria and transvestic fetishism are very different conditions. The former is a disorder of gender identity, the latter is a matter of sexual preference (see further below). However, as the Committee notes, both appear in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). In addition, both are classified as mental disorders in the World Health Organisation's International Classification of Diseases (ICD-10) - although the ICD-10 refers to them as "transsexualism" and "fetishistic transvestism" respectively. Whilst the ICD-10 is not an authoritative text on what constitutes a mental disorder, its inclusion of these conditions suggests that there is, internationally, a body of clinicians who would regard them as mental disorders.

8  The Government's understanding, therefore, is that gender dysphoria and transvestic fetishism potentially constitute "a disability or disorder of the mind" in the terms of the Mental Health Act 1983 ("the 1983 Act") and a "true mental disorder" for the purposes of Article 5(1)(e) of the Convention, where they reach a sufficient level of clinical significance. The issue has not arisen as far as the Government is aware, and the Government does not think it is possible, in the absence of case-law, to take a definitive view. In the unlikely event that a case were to arise, it would no doubt depend on the particular circumstances. Whilst it is of course accepted that transsexuals have the right to personal development and physical and moral integrity under Article 8, the Court in the case of Goodwin v United Kingdom[41] held that transsexualism has wide international recognition as a medical condition for which treatment is provided in order to afford relief. The Government doubts that the fact that transsexuals have the right under Article 8 to have their gender re-assignment recognised is determinative of whether or not gender dysphoria or transvestic fetishism could constitute "unsoundness of mind".

9  As mentioned above, gender dysphoria is a disorder of gender identity, not sexuality. Accordingly, the Government's view is that it has never been excluded from the 1983 Act and the removal of the exclusion for sexual deviancy has not changed the legal position in this regard.

10  It is the Government's understanding that transvestic fetishism, by contrast, would be considered clinically to be an abnormality of sexual preference. The people concerned - almost always men - are not confused about their gender. They simply enjoy wearing the clothes of the opposite sex, and may gain sexual arousal from doing so. Accordingly, the Government thinks that a court might consider transvestic fetishism "sexual deviancy" for the purposes of the 1983 Act. In which case, the removal of that exclusion means that this condition would now, in theory, be within the scope of the 1983 Act.

(ii) Mental disorder warrants compulsory confinement or treatment

11  The mere presence of a mental disorder is never sufficient to justify action under the 1983 Act. The relevant criteria must always be met, such as the criteria for admission for treatment in section 3. The criteria ensure, amongst other things, that a person is detained only where it is appropriate that that person receives medical treatment in a hospital for that mental disorder.

12  More practically, the Government can see no reason why the Bill should make it any more likely that anyone will be detained on the basis either of gender dysphoria or transvestic fetishism.

13  As mentioned above, gender dysphoria has never been excluded from the 1983 Act and the removal of the exclusion has not changed the legal position. Yet there is no evidence of people being detained wrongly under the Act as it stands. Indeed, it is hard to imagine the circumstances in which someone suffering from gender dysphoria would meet the criteria for detention under the current or amended Act.

14  In relation to transvestic fetishism, again the Government can see no reason why the amendments in the Bill should lead to people who cross dress being detained. The fact that transvestic fetishism is classified as a mental disorder does not, of itself, mean that it requires treatment, let alone that it would call for treatment in hospital, or that there would be a justification for detaining someone in hospital for such treatment.

15  While very different from one another, gender dysphoria and transvestic fetishism are like very many other mental disorders which are in theory covered by the 1983 Act, but which in practice would not be expected to lead to people being detained. Other examples include mild depression and anxiety, phobia of flying and various forms of sexual dysfunction.

16  On the other hand, if a person did meet the criteria for detention as a result of gender identity or transvestic fetishism (or any other equally unlikely disorder) and needed to be detained for their own sake or to protect others then it is right that mental health legislation should enable appropriate action to be taken. But for that to happen there would have to be wholly exceptional - and very hard to envisage - circumstances.

(iii) Amendments in the House of Lords

17  The Committee may be aware that the House of Lords voted to include in the Bill a number of new exclusions from the definition of mental disorder, against the Government's opposition. The new exclusions (in clause 3) include "sexual orientation and sexual identity."

18  Those terms are not defined, but the Government understands the former to mean sexual attraction towards people of the same, or opposite sex, or both, and the latter to mean the terms (for example "heterosexual", "homosexual" or "bisexual") by which a person thinks of, or describes, their own sexual orientation (regardless of what that orientation is in objective terms). If that understanding is correct, then the amendment would not affect the position of either gender dysphoria or transvestic fetishism.

(iv) Summary

19  The Government does not share the Committee's view (if that is indeed its view) that gender dysphoria and transvestic fetishism could never be regarded as true mental disorders. Moreover, the mere presence of mental disorders is not enough to justify compulsory confinement; it must be shown that they are of a kind or degree that warrants compulsory confinement. This is provided for by the criteria for detention in the 1983 Act. Accordingly, the Government considers that the amendments do not affect compatibility with Article 5(1)(e) of the Convention.

2  Given the breadth of the new definition of mental disorder, we consider that the argument for principles of non-discrimination to be on the face of the Bill applies to non-discrimination on grounds of sexual orientation and sexual identity. We consider that this is an area where it is desirable to include principles such as non-discrimination and proportionality on the face of the legislation. (Paragraph 15)

20  The Government does not follow the Committee's reasoning in this paragraph. Sexual orientation and identity are not mental disorders. Accordingly, changes in the Bill in relation to the definition of mental disorder have no bearing on the question of whether there should or should not be principles about non-discrimination and proportionality on the face of the legislation.

21  The Committee may, however, wish to note that the Government has amended the Bill so that there is now a statutory requirement on the Secretary of State and Welsh Ministers to provide a statement of Principles in the respective Codes of Practice for England and for Wales. The fundamental issues that the statement must address are listed on the face of the Bill (in clause 10). These include:

a)  respect for patients' past and present wishes and feelings,

b)  minimising restrictions on liberty,

c)  involvement of patients in planning, developing and delivering care and treatment appropriate to them,

d)  avoidance of unlawful discrimination,

e)  effectiveness of treatment,

f)  views of carers and other interested parties,

g)  patient well-being and safety, and

h)  public safety.

3  We consider that the procedures for ensuring objective medical evidence of a true mental disorder for a lawful psychiatric detention appear broadly to comply with the case law on Article 5(1)(e) of the Convention. (Paragraph 16)

22  The Government welcomes the Committee's conclusion that the procedures in Part 2 of the Act, as they are to be amended by the Bill, for initiating detention are compatible with Article 5(1)(e) of the Convention.

(2) Conditions of Compulsion

4  In our view, in terms of the Convention, there would appear to be no obstacle to replacing 'treatability' with 'availability of appropriate treatment' as a condition of detention. (Paragraph 20)

23  The Government welcomes the Committee's conclusion that there is no obstacle to replacing the so-called treatability test in the criteria for detention for treatment under the Act with a test of whether appropriate treatment is available. Although the House of Lords voted to retain the treatability test - and apply it more widely - the Government continues to believe that it does more harm than good and should be replaced.

(3) Renewal of Detention

5  We do not agree with the Government's definition of objective medical expertise in relation to the establishment of a true mental disorder for renewal of detention. (Paragraph 26)

6  We find the Government's argument, that after mental admission the hospital managers cease to be the detaining authority and responsibility for the patient's case passes to the responsible clinician, unconvincing. (Paragraph 29)

7  Although in some circumstances it might be appropriate for a clinical psychologist to provide the tribunal with the objective medical expertise for renewal of detention, we share the Council on Tribunal's concern that it may be difficult for Responsible Clinicians who may be nurses, social workers or occupational therapists to do so, and that therefore the Mental Health Review Tribunal may be required to seek additional medical evidence to verify that the conditions of detention continue to be met. (Paragraph 29)

24  The Committee relies on the case of Varbanov v Bulgaria[42] in support of their view that objective medical expertise involved reports from psychiatrists who are doctors. The opinion of such a person was necessary for a person to be lawfully detained on grounds of unsoundness of mind. The Court in that case held that there would be a breach of Article 5 if a person were detained on the basis that they were of unsound mind without first obtaining the opinion of a medical expert. In that case the patient was detained without first consulting a medical expert even though it was the intention of the detention to obtain such a view. He was then admitted to a psychiatric hospital but there was no evidence that any opinion was sought in hospital as to whether he needed to be detained. The order for his detention for 21 days had already been made without the involvement of a medical expert.

25  The Government believes, as did the court in that case, that except in cases of real emergency it is necessary to obtain a medical opinion before detaining a person. However, the Government does not agree that the case requires the necessary medical expertise to be provided every time by a psychiatrist.

26  The Government does not believe there is any case law specifically on what is meant by objective medical expertise. It is clear that different member states have different systems for detention. For example in the Netherlands, the case of Schuurs v the Netherlands[43] made various complaints about the detention of the patient on the basis of a certificate by a general practitioner. These were about the fact that the GP did not properly examine her and that she was not allowed to make representations to the District Court that ordered her detention in hospital for 6 months. Her complaints did not however raise any objection to the examination being carried out by a GP rather than a psychiatrist. Yet, a GP may have no particular specialist experience in mental health. The competencies that will be required of responsible clinicians will mean that all responsible clinicians can identify the presence and severity of mental disorder and all will work in senior positions in mental health, so will therefore often have skills superior to those of a GP to enable them to determine if a person is of unsound mind.

27  It is the Government's view that, as the European Court of Human Rights has said on a number of occasions, the Convention is a "living instrument" which must be interpreted in the light of present day conditions. In modern day England and Wales, there have been changes in the way professional roles are considered. There is increasing multi-disciplinary working and allocation of functions on a competency basis - for example, members of professions other than doctors can now prescribe. Within a modern workforce, it is appropriate for Mental Health Act functions to be allocated to those who are competent to perform them, including allowing an approved clinician who has the competency to act as a responsible clinician, and who is the most appropriate professional to do so, to carry out this role.

28  In this light, it is our view that Winterwerp must be broadly interpreted. What is required is a person who is able to make a decision as to whether or not the person in question is of unsound mind. On detention, we have chosen to require that the application by the approved mental health professional ("AMHP") be based on the recommendations of two doctors, one of whom must be approved under section 12 of the 1983 Act as having special experience in the diagnosis or treatment of mental disorder. At this stage, we consider that the needs of the patient have not been assessed and doctors have the widest diagnostic skills. However, this is a matter of policy, not because we believe it is a legal requirement. Once the person has been assessed for admission, an approved clinician will be allocated as their responsible clinician. He will be selected because he is the most appropriate person to oversee the patient's case. He will not work in isolation but as part of a multi-disciplinary team. However, as the person in overall charge of the patient, it is right that the responsible clinician be the person to decide whether or not to renew the detention. The responsible clinician will have the skills to do so.

29  Before a person can be a patient's responsible clinician, they must be approved as an approved clinician. To be an approved clinician a person must be able to demonstrate to the satisfaction of an approving body (which will be a Strategic Health Authority in England) that they have the competencies to be set out in directions. The competencies will include the ability to identify the presence and severity of mental disorder. Only professionals who have had the clinical training that would enable them to demonstrate this competency can be approved. Professionals that cannot demonstrate this competency will not be approved. The professions identified in the draft Directions for England[44] (available on the DOH website) as those which can be approved, are the key professions within the multi-disciplinary team, but only those members who can demonstrate the competencies mentioned above may be approved.

30  It is important also to consider what is involved in the decision to renew detention. Detention may only be renewed if the conditions set out in subsection (4) of section 20 of the 1983 Act are met. The conditions are that the patient is suffering from mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital, and it is necessary for their health or safety or the protection of others to receive treatment, and such treatment cannot be provided without detention, and that appropriate medical treatment is available.

31  As I have pointed out above, only a person who can identify the presence and severity of mental disorder may become a responsible clinician. Because a patient's responsible clinician has overall responsibility for the patient's case and the most appropriate expertise for the patient's needs, they will also be best placed to assess a patient's risk to self or others, and whether or not the appropriate response to this risk is the patient's detention for treatment in hospital. The person with overall responsibility for the patient, the responsible clinician, is best placed to know whether appropriate medical treatment is available. Medical treatment includes psychological intervention and specialist mental health habilitation, rehabilitation and care. The responsible clinician will have access to a multi-disciplinary team of professionals involved in the patient's care whose views will inform their decision-making.

32  We do not consider that Winterwerp was trying to lay down the sort of medical qualifications available in a national system that should or should not count when deciding on the renewal of detention. That is for each national authority to decide. The professions whose members may be approved as approved clinicians will be set out in directions from the Secretary of State and the Welsh Ministers. The draft directions for England are on the Government of Health website. We have consulted widely on the content of these (including with the Royal College of Psychiatrists), but remain open to views.

33  The same arguments support our view that any responsible clinician can provide the Tribunal with objective medical expertise when renewing detention. It is, of course, open to the Tribunal to seek further medical evidence, and the Mental Health Review Tribunal Rules allow them to seek such further information or reports as they wish and to subpoena witnesses. There is no requirement under the present Rules for the responsible medical officer (RMO) to give evidence, although it is usual practice. The Tribunal will want to have evidence from the person (or persons) best placed to give it and this will in general be the responsible clinician. He will have the best overall knowledge of the patient and the expertise most appropriate to the patient's case.

34  The Committee were unconvinced by the Government's explanation about why responsibility for the renewal of detention lay with the responsible clinician. Our view is that it is the application for admission to hospital (made in accordance with the Mental Health Act) that is authority for the hospital managers to detain the patient (see section 6(2) of the Mental Health Act). Continued detention is only in accordance with Article 5(1) (e) and the conditions laid down in Winterwerp if the persistence of the patient's medical disorder is kept under review. The responsible clinician is the person charged with this exercise on an ongoing basis, but in addition, he is charged with formally providing a report that the detention be renewed at intervals, and sending a copy of that report to the hospital mangers. It is the furnishing of the report that gives authority for the continued detention of the patient. R v Warlingham Park Hospital Managers, ex p B,[45] referred to by the Committee, upheld the view that the lawfulness of continued detention depended on the furnishing of the report to the hospital managers, not any consideration of that report by the hospital managers.

(4) The Nearest relative

8  In our view , clauses 21 to 24 appear to meet the terms of the friendly settlement in JT v United Kingdom . (Paragraph 34)

9  If, as appears to be the case, the Government's intention is to confine the patient's right to seek displacement of a nearest relative to situations of abuse or strongly suspected abuse, the test of suitability is too vague and broad to achieve this. In our view the Bill should be amended to provide effective safeguards on the face of the Bill. It may be necessary to consider the fact that often it is a near or nearest relative who may have sought the detention of the patient into the mental health facility. This may lead to a breakdown of trust and place a strain on such a relationship, making it inappropriate for such a person to determine the future of the patient. (Paragraph 37)

35  It is foreseeable that 'otherwise not a suitable person to act as such' could cover a variety of cases and we want the courts to be able to judge each case on its own particular merits. We do not consider that it would be appropriate to attempt to set out in the legislation every possible scenario in which a person may be judged 'not a suitable person to act as such' in this context. This is ultimately a matter to be decided by the courts. However, we intend to make clear, during the passage of the Bill, some of the things we have in mind by the phrase 'otherwise not suitable to act as such.'

36  The Government has carefully considered this recommendation and considers that the test of suitability strikes the right balance. The judgment of the suitability of a nearest relative involves careful consideration of the relationship between the patient and the nearest relative. It is not a judgment about how the nearest relative exercises their rights. We have retained the provisions which enable the displacement of a nearest relative in those limited and specific situations where the manner in which a person has exercised their rights as nearest relative should constitute grounds for displacement. The new ground of unsuitability is not designed to cover the same circumstances. It is not intended to be a judgment about how a nearest relative is exercising their rights, nor is it intended to act as an additional "catch all" category for covering "other" ways in which the actions of the nearest relative can be used to displace him or her.

37  Whilst we do wish "unsuitable" to cover more than just cases of abuse or strongly suspected abuse, we do not wish to restrict the nearest relative's ability to fulfil that role by allowing a patient to displace a nearest relative simply because that person was the one who applied for the patient's detention, or equally did not object to an application made by an AMHP.

38  We do not see a conflict in introducing displacement on the grounds that the nearest relative is not suitable and our retaining the right of the nearest relative to apply for the detention of the patient. The nearest relative's role is one that requires him or her to act independently of the patient. We recognise that this can sometimes mean acting in ways that are contrary to the wishes of the patient. Suffering with mental disorder is often a distressing and difficult time for the patient, and it is no less so for those who love and care for the patient. In that environment, we recognise there is potential for disagreement between a patient who may not wish to go to hospital, and a nearest relative who reluctantly accepts that this is the best course of action. We do not intend that a person will be deemed "not suitable to act" as a patient's nearest relative simply because the patient, or the AMHP, disagrees with how the nearest relative exercises their rights, or because the patient is upset with the nearest relative over a trivial matter.

39  However, we understand that each relationship between nearest relative and patient will be different and that there will be cases where a deterioration of this relationship will render a nearest relative unsuitable to act as such. We wish the courts to be free to make judgments about suitability in this context, taking into account the merits and circumstances of each individual case. In discharging this role, the Human Rights Act 1998 requires that the court must act in a manner which is compatible with the patient's Convention rights.

40  Whilst abuse, suspected abuse, and the risk of abuse do constitute one element of what could make a nearest relative unsuitable, the Government do not intend to equate unsuitable with these factors only. In addition to what has been said in the House of Lords during the passage of the Bill to date, the Government intends that a person is not suitable to be the nearest relative where that person has no relationship with - and intends to have no further relationship with - the patient. In addition, it is intended that a person is not suitable to be the nearest relative where the risk posed to the patient is by virtue of a third party and the nearest relative exposes the patient to that risk.

41  It is intended that the court will draw on their knowledge of the nearest relative, the views of the professionals involved in the case and other relevant persons known to the patient. The opinions and views of the patient will also form part of the courts' deliberations, but at the same time, we do not wish the court to feel prevented from displacing a nearest relative it deems unsuitable, even where the patient would wish that person to remain as the nearest relative. We are aware that there are times when a victim will act to protect his or her abuser, either out of fear of, or through a form of identification with, the abuser.

42  Finally, we do not intend that it should be possible to displace a nearest relative because there is another person who appears to be "more suitable".

(5) Community Treatment Orders

10  We consider that, if there is to be a procedure whereby the hospital managers authorise CTOs, in order to be compatible with the requirement that the interferences with private life must be "in accordance with the law", this should be in the legislation not in the Code of Practice, which as the House of Lords has said, may be departed from with good reason. (Paragraph 51)

43  The Government note what the Committee has said in its report about the need for any procedure whereby hospital managers authorise a Community Treatment Order ("CTO") to be in the legislation and not the Code of Practice in order for it to be compatible with the requirement under Article 8 of the Convention that interferences with private life must be "in accordance with the law". The Government also notes the Committee's observation that the procedure for making a CTO is not consistent with other procedures in the Act whereby an application is required to be made to the hospital managers.

44  The Government shares the Committee's view that there should be transparency on the face of the legislation in the procedure for making a CTO. However, the Government considers that although the procedure for making a CTO does not require an application to be made to the hospital managers or to any competent authority, this does not, of itself, render that procedure incompatible with Article 8(2) of the Convention. The Government considers that the procedure for making a CTO must be looked at as a whole for the purpose of determining whether that procedure includes sufficient safeguards for the patient and is otherwise compliant with Article 8 of the Convention.

45  In paragraphs 25 to 32 of my letter to the Committee of 17th January, I set out in detail why the Government considers that the procedure for making a CTO, as currently contained in the proposed new sections 17A and 17B of the Act, complies with the requirements of Article 8(2) of the Convention. The Committee is referred, in particular, to paragraph 30 of that letter for the reasons why the Government considers that the additional involvement of the hospital managers in that procedure is unnecessary.

46  The Government would like to clarify that it is not the policy intention to establish a procedure whereby the hospital managers endorse the making of a CTO either in the legislation or in the Code of Practice. As explained in my letter of 17th January, the Government considers that the decision to make a CTO in respect of a patient is a clinical decision and is therefore one which the responsible clinician, subject to the agreement of an AMHP, is best placed to make as the person with direct responsibility for the patient's treatment.

47  The reason why the Code of Practice states that the hospital managers should be sent a copy of a CTO is one of practical necessity (i.e. so as to ensure that they are informed that a CTO has been made in respect of a patient who is detained in their hospital). This would, for example, allow the hospital managers to ensure that arrangements are in place for the patient's discharge from hospital. It is not intended that the hospital managers should also give the seal of approval to the making of the CTO.

48  The Government notes what the Committee has said in paragraph 51 of its report about the provision in the legislation for the renewal of a CTO under which a report must be furnished to the hospital managers before the CTO can be renewed. However, as stated above, this is a matter of practical necessity and does not amount to a requirement in the legislation for the hospital managers to endorse the renewal of a CTO. If the Government had intended that the hospital managers should formally authorise the making or renewal of a CTO then it is agreed that, for reasons of transparency, provision in this regard should be included the legislation and not in the Code of Practice. However, as stated above, this is not the case.

(6) Right to seek review of conditions in a Community Treatment Order

11  We do not consider that the need to obtain the AMHP's agreement as to the nature of the conditions to be imposed on a CTO represents a significant safeguard. (Paragraph 56)

12  In our opinion concerns expressed about the independence of the AMHP reinforce the need for some external safeguard that is more accessible than judicial review. (Paragraph 57)

13  We consider that the requirement that restrictions on conduct under a CTO be proportionate and that conditions may not be imposed which collectively amount to a deprivation of liberty should be enshrined in the statute, and that a patient should be entitled to seek review of the conditions before a Mental Health Review Tribunal. (Paragraph 58)

49  The Government notes the Committee's view that the legislation should specify that any restrictions on conduct are to be proportionate and that they should not collectively amount to a deprivation of liberty. The Government also notes the Committee's view that the need to obtain the agreement of an AMHP to the making of a CTO does not represent a significant safeguard for the patient and that there should be a more accessible means than judicial review for a patient to seek a review of the conditions imposed on a CTO.

50  As stated above, the Government considers that the procedure for making a CTO, including the ability to impose conditions which restrict behaviour, complies with the procedural obligation under Article 8 of the Convention. The Government also considers that this procedure must be looked at as a whole for the purpose of determining whether it includes sufficient safeguards for the patient and is otherwise compliant with Article 8 of the Convention. The reasons why the Government considers that the absence in the legislation of a right for a patient to seek a review of the conditions imposed on a CTO does not contravene a patient's rights under Articles 5 and 8 of the Convention were set out in my letter of 17th January (see in particular paragraph 35 of that letter).

51  For the reasons stated in the paragraphs below, the Government does not share the Committee's view that conditions are, in practice, likely to be imposed on a CTO that are so restrictive in nature as to collectively amount to a deprivation of liberty or that the involvement of an AMHP in agreeing the conditions of a CTO will not offer a significant safeguard for patients. In addition, it is unlikely that Supervised Community Treatment (SCT) will, in practice, be considered appropriate for a patient who is eligible if it is considered necessary to impose conditions on the patient's CTO that are so restrictive in nature as to amount to a deprivation of liberty because it is not possible to see how this would be of greater clinical benefit to the patient than continued detention and treatment in hospital.

52  The conditions imposed on a CTO are intended as a means of setting a framework for the patient's successful living in the community. They are clinically driven in that they will be based on an assessment of what is considered clinically necessary to ensure that the patient continues to receive the care and treatment that he or she needs when residing in the community while at the same time providing sufficient protection for the patient or others. It is clear that the proposed new section 17B(3) of the Act merely provides examples of the type of conditions that can be imposed on a CTO and that the legislation does not require the imposition of conditions which restrict a patient's behaviour or which would collectively amount to a deprivation of liberty. The Code of Practice will provide guidance on the need to keep conditions to a minimum necessary to ensure that patients receive the treatment they need and to protect them and others from harm. This is intended to ensure that the conditions imposed will be proportionate in the circumstances of each individual case and that they will not be applied so as to collectively amount to a deprivation of liberty. It also reinforces the clear duty already incumbent on the responsible clinician and the AMHP, by virtue of them being public authorities under section 6 of the Human Rights Act 1998, to act compatibly with the Convention. The Government therefore considers that it is not necessary to further spell out this duty in the primary legislation and that the Code of Practice is the right vehicle to provide the necessary detail to practitioners about how the conditions should be applied.

53  To the extent the conditions imposed on a CTO could be said, either individually or collectively, to amount to an infringement of a patient's civil rights to the point where Article 6 of the Convention is engaged, the Government considers that sufficient internal safeguards already exist under the statutory procedure currently proposed, as supplemented by the Code of Practice, which would safeguard against this by preventing such conditions from being imposed at the outset and by enabling an effective review of the continued necessity or appropriateness of the conditions imposed. The Code of Practice will also encourage the involvement of the patient and those responsible for caring for him in the community in setting the conditions. This should further reduce the likelihood of any conditions imposed being unacceptable to the patient or not reasonably practicable for him to comply with. Although the exact nature of the conditions imposed on a CTO will ultimately be a matter for clinical decision in the light of the patient's individual circumstances, the current power in the proposed new section 17B (4) and (5) for the responsible clinician to vary or suspend the conditions recognises that those conditions may need to be altered from time to time having regard to a patient's individual circumstances. There is nothing in the legislation that would prevent this power from being used at the request of the patient or a person acting on his behalf.

54  The Government therefore disagrees with the Committee's view that there should be a right for a patient to seek an external review of the conditions of a CTO because such an external mechanism for review would introduce a further layer of complexity into the management of patients subject to SCT. The Government also does not consider that the MHRT would be better placed than any other external body to make decisions in this area because of the clinical and individual nature of the conditions imposed. The Tribunal does not have a role in making decisions as to suitability of a patient for SCT, other than a power to recommend to the responsible clinician that he or she considers whether to make a CTO, so that a power to review the conditions imposed would appear inconsistent.

55  The Government also strongly disagrees with the Committee's views about the independence of an AMHP and considers that the involvement of an AMHP in the procedure for making a CTO, including the attachment of conditions, is a significant part of a sufficient package of patient safeguards that currently exists in the procedure for making a CTO. The Government's view is that the AMHP will bring an independent perspective, just as the approved social worker ("ASW") currently does in the making of key decisions under the Act. As with ASWs, an AMHP will be required to make an independent professional decision.

56  The standards to be set for those eligible to be AMHPs, including competencies and training, will ensure that individuals undertaking this role will be capable of taking an independent view and will not be unduly influenced by colleagues who may be their seniors. Local authorities will continue to have the role of approving AMHPs and must be satisfied that individuals have appropriate competence in dealing with people suffering from mental disorder, including the ability to take an independent view. An AMHP will always be acting on behalf of a local authority when undertaking their AMHP functions.

57  Training for AMHPs will ensure that standards are maintained. That training will be significant. In England, it will involve at least 600 hours including teaching and practice, which is required prior to approval as an AMHP, and the competency requirements for approval, will ensure that AMHPs from all professional backgrounds are able to take a social care perspective when considering matters relating to SCT. The Government will be working with the British Association of Social Workers and other organisations representing professionals on the implementation of the AMHP role.

58  It is also relevant to point out, as before, that the AMHP is a public authority under section 6 of the Human Rights Act 1998, and as such has a duty to safeguard the patient's rights under the Convention. He would be open to challenge if he agreed to the making of a CTO, or the imposition of conditions, in circumstances where he does not consider this to be in the best interests of the patient.

(7) The test for treatment without consent under section 58 of the 1983 Act

14.  In our view, it is clear from the subsequent provisions of the Draft Code of Practice that reliance on the appropriateness test in the legislation, without more, will not be sufficient to ensure Convention compliance. (Paragraph 60)

15.  We find the Government's reasoning, that the provisions relating to the administration of treatment are capable of operating compatibly with Articles 3 and 8 ECHR, hard to accept. We consider that the principal legitimate aim for which medical treatment may be imposed under Article 8(2) is health, even if incidental purposes may be the prevention of crime or the protection of the rights and freedoms of others. We therefore think that treatment must be necessary to protect health (clinically necessary), and a proportionate response. It must also be in accordance with the law, in the sense of being predictable in its effects to those subject to interference with their rights. For this reason in our view the full appropriateness test should be in the legislation rather than in a Code of Practice, which may well only be accessible to professionals. (Paragraph 65)

59  The Government does not accept the Committee's conclusion that the full appropriateness test should be in the legislation rather than the Code of Practice.

60  The Government agrees that treatment under the 1983 Act must be for a health care purpose. The Government itself tabled an amendment at Report stage in the House of Lords which would have made explicit what is anyway implicit in the legislation - namely that the purpose of medical treatment under the Act is to alleviate, or prevent the worsening of, mental disorder, its symptoms or effects.

61  That is true of medical treatment for mental disorder throughout the 1983 Act. The Committee, however, was concerned specifically with the test which a second opinion appointed doctor (a SOAD) should apply when deciding whether to authorise treatment section 58 (medication and - for the time being, electro-convulsive therapy - for mental disorder.)

62  The Committee suggests that "the full test" for giving treatment without consent should be included in the legislation. Yet as I explained to the Committee in my letter of 17 January 2007, the Government does not believe that the Convention contains a single test for when such treatment is permissible.

63  The test of "medical necessity" (or "therapeutic necessity") has been developed by the European Court of Human Rights in the context of Article 3 of the Convention. By no means all treatment given without consent will come close to the threshold of severity in Article 3 of what might constitute inhumane or degrading treatment. Where medical treatment does not approach that threshold, then it is nonetheless likely to engage Article 8 of the Convention, and therefore falls to be justified under that Article (which, of course, includes consideration of the proportionality of the intervention).[46].

64  There is no authoritative case-law that the Government is aware of to suggest that the test for Article 8 is the same as the "medical necessity" test applied in the context of Article 3. Accordingly, it is not clear to the Government the basis on which the Committee concludes that the "full test" is that treatment "must be necessary to protect health ("clinically necessary") and a proportionate response".

65  The Government's view is that a requirement for a SOAD to decide whether treatment is "appropriate, taking into account the nature and degree of the patient's mental disorder and the other circumstances of [the patient's] case" would inevitably require the SOAD to consider the very issues which determine whether treatment is a medical necessity (where there is a question of it being contrary to Article 3) or whether it is justified under Article 8(2). That would be true, even if SOADs were not in any event required to act compatibly with Convention rights by section 6 of the Human Rights Act 1998.

66  The Committee's recommendation appears, furthermore, to be based on an assumption that the Government has "chosen to address Convention compliance in the Code [of Practice] rather than in the legislation" (paragraph 63). The Government does not share this view.

67  As the Committee notes, the draft illustrative Code of Practice "reminds clinicians of their obligations under Articles 3 and Article 8" (paragraph 61). The Government agrees with the Committee that the Code is a reminder - a description - of what the law is. The Government also agrees that guidance given in the Code may be departed from where there are cogent reasons to do so. But that does not mean that practitioners can depart from the law, simply because it happens to be described in the Code.

68  The Government does not share the Committee's view that the Code of Practice "may well only be accessible to professionals". The Code is a published document which may be freely purchased. It is reproduced (along with the Act itself) in the standard text-book on the Act. It is also available on-line at no cost. It is certainly at least as accessible to the general public as the Act itself - in practice, it may well be more accessible. In addition, all hospitals in which patients are detained hold copies of the Code, and should make it available to patients on request.

69  Finally, the Committee may have noted that the House of Lords voted to retain the current wording of section 58, namely that the SOAD must certify that "treatment should be given" having regard to "the likelihood that the treatment will alleviate or prevent deterioration of, the patient's condition.

70  Were the Committee's conclusion about the "full test" required in section 58 correct, this current test would also be inadequate. For essentially the same reasons as set out above, the Government does not believe that is so. But it continues to believe that a test based on what is "appropriate" would be better than the current test.

16  Three months is a long time to be in receipt of compulsory psychiatric treatment without the opportunity for review and supervision of the responsible clinician's decision to impose that treatment, and we consider it is doubtful whether the Government's obligation under Article 8 to provide effective supervision and review of treatment without consent is discharged by such a long waiting time. (Paragraph 66)

71  We have considered very carefully the Committee's views. However, we remain of the view that the 1983 Act has the right balance in this respect between clinical freedom and safeguards for patients. There is additionally no empirical evidence that the 3 month period is too long.

72  There is no obligation under the Convention which requires a second opinion when considering the administration of medical treatment. We have similarly not identified any obligation under Article 8 to provide further safeguards beyond those in the Act already. Furthermore, it is only people who have been detained, or who are liable to be detained, for treatment, in accordance with the criteria and procedures in the Act, who may be treated without consent.

73  We would ask the Committee to also note that a patient and their nearest relative can themselves seek the opinion of another doctor, and the treating doctor can also seek advice from colleagues. While the Mental Health Act Commission ("MHAC") does not arrange for these second opinions, they can be arranged through the NHS.

74  The Government is aware that the MHAC has expressed concern that the 3 month period is too long when a patient is receiving doses outside of the product guidelines for that medication or in combinations that constitute high doses. However, the Government considers that the use of high does and combinations of medications is a clinical issue that is best dealt with in clinical and professional guidance.

75  There is already a power in the existing 1983 Act (at section 58 (2)) for the existing 3 month period to be reduced by Order made by the Secretary of State. The legislation therefore already provides a mechanism by which this period can be altered should future evidence and practice support such change.

(8) Forcible feeding

17  We consider that the positive obligation under Article 8 as elaborated in Storck v Germany requires effective supervision and review of discussions to treat against an individual's will, and that the direction of the responsible clinician, even if that person is a medical practitioner, is not sufficient to provide such supervision and review. In relation to invasive treatments such as medicines for mental disorder and Electro Convulsive Therapy Parliament has seen fit to provide such supervision and review in the Mental Health Act 1983 by way of a statutory second opinion. Forcible feeding is equally, if not more, invasive of physical integrity. We therefore consider that it should be subject to the same safeguards, provided for in this Bill. (Paragraph 79)

76  The Government does not believe that a statutory second opinion is a requirement of the Convention, either for the treatments to which it currently applies or for forcible feeding. However, as I said to the Committee when giving evidence on 5 February 2007, the Government is prepared to consider whether existing powers in the 1983 Act should be used to include forcible feeding within the scope of the second opinion procedures.

(9) HL v United Kingdom and the Bournewood proposals

18  We consider that if it is known that a person will be taken from their home to a place where they will be prevented from leaving, and complete and effective control will be exercised over their movements, that person is deprived of liberty from the point of removal from their home. This is recognised in relation to detention under the Mental Health Act 1983, where a duly competed application is authority to take and convey the patient to hospital. The fact that the person is not resisting at the time does not, in our opinion, obviate the necessity for legal authority to detain from the point of deprivation of liberty. To require an order from the Court of Protection to take and convey would seem an unduly cumbersome procedure. We consider that a duly completed Bournewood authorisation should provide authority to take and convey the patient, as an incapacitated person who is initially not resisting, may subsequently become resistant to admission and legal authority to convey them to the place of residence will be needed. (Paragraph 89)

77  Our concern is to ensure that there are robust safeguards in place to protect the rights of people who lack capacity to consent to the arrangements made for their care when those arrangements amount to a deprivation of liberty within the meaning of Article 5 of the Convention. For the reasons set out below, we do not think extending the scope of a Mental Capacity Act deprivation of liberty authorisation to cover conveying will add to those safeguards.

78  We consider that the conveyance of a person who lacks capacity to consent from their home, or another location, to a hospital or care home would not usually amount to a deprivation of liberty. In many cases there would be no intention to deprive the person of liberty at the time the conveyance took place, for example admission to hospital by ambulance in an emergency. Even where there was an expectation that the person would be deprived of liberty within the care home or hospital, we think it unlikely that the journey itself would be of a nature or sufficient duration to constitute a deprivation of liberty. We believe, therefore, that in most cases a person could be lawfully conveyed under the wider provisions of the Mental Capacity Act if it is considered to be in their best interests to be in the hospital or care home.

79  The best interests principle would apply to the conveying in the same way that it applies to any other acts done under the Mental Capacity Act. This would involve the consideration of best interests in deciding whether to convey someone, regardless of whether or not the conveyance took place before or after the deprivation of liberty assessment process had been undertaken.

80  A deprivation of liberty is more likely to arise in respect of acts subsequent to the conveying, for example by keeping the person in the hospital or care home in a totally restrictive manner. But the deprivation of liberty authorisation process already carries with it adequate safeguards around the assessment of, and rights to challenge, any such deprivation of liberty. The key issue is whether the person should be deprived of liberty in the care home or hospital and the safeguards that are being put in place to protect the person's human rights in this respect. We will reflect in the Code of Practice[47] the importance of considering the impact of any transportation as part of assessing best interests. In practice, many people who will become subject to the proposed Mental Capacity Act deprivation of liberty safeguards will already be accommodated in hospitals or care homes at the time that a change in their care regime brings them within the scope of the safeguards, so the conveying issue will not arise.

81  We do accept, however, that, in a very few cases, there may be exceptional circumstances, for example where it is necessary to do more than persuade or restrain the person for the purpose of conveyance, or perhaps if the journey was exceptionally long, where transportation may amount to a deprivation of liberty and it may be necessary to seek an order from the Court of Protection where additional consideration of the particular circumstances of the case would be an extra protection for the individual (or consider use of the 1983 Act). We do not therefore consider that it is desirable to extend authorisations to cover these rare cases, because we do not think it would strengthen the protections for the person concerned.

19  The proposals to amend the Mental Capacity Act are detailed and complex and we question whether they will be readily understood by proprietors of residential care homes, even with the benefit of professional advice. (Paragraph 90)

82  We recognise that there are challenges for the care home sector in implementing the deprivation of liberty safeguards and we are working with the care home representative organisations on how best to support their members. We also accept that it is essential to provide training and easy to use information and guidance on the deprivation of liberty safeguards. We are working on an implementation strategy to achieve this that will start from the premise of asking NHS and social care staff, service users and families what they would find useful.

83  The Government will be investing in a wide communications strategy to ensure that providers of care and treatment are aware of the new safeguards. This will include the provision of Code of Practice guidance, a first draft of which is available on the Government of Health website. It is intended that this Code of Practice guidance will be the subject of a formal consultation process once the deprivation of liberty provisions pass through the Parliamentary process.

84  We expect care homes to become increasingly familiar with, and confident in understanding and applying, the Mental Capacity Act provisions as they come into force. In that context, they will routinely be considering whether residents have the capacity to consent to elements of their care plan. We accept that identifying whether someone who lacks capacity is being deprived of liberty raises a new responsibility that may seem daunting when it is unfamiliar. However, care home managers are already required to consider how to promote choice, independence and involvement of residents and their friends and family in decision making and in practice their role is not likely to be burdensome because in the vast majority of cases it will be perfectly clear that the person is not deprived of liberty.

85  We remain confident that proprietors of residential care homes will be fully conversant with their responsibilities in respect of the deprivation of liberty safeguards in advance of implementation of the safeguards.

20  In our opinion, to charge someone for accommodation in which they are deprived of their liberty potentially engages civil rights and obligations, and therefore the right of access to a court to determine those rights under Article 6 of the Convention. There is a potential discrimination for the purposes of Articles 5 and 6 and Article 14, in that a person deprived of their liberty in their own best interests in a hospital will not be charged for the detention whereas a person deprived of their liberty in their own best interests in a care home will. (Paragraph 91)

86  As the Committee is aware, Article 6 of the Convention guarantees the right to a fair and public hearing to determine a person's civil rights and obligations. The Committee has raised concerns about the application of the means testing procedure for charges to care home residents who are detained. The Committee goes on to express concern over the right of access to a court for those people who may be liable to charges for accommodation in which they are detained.

87  It has been a longstanding national policy, applying to all, that healthcare is provided free and personal care is means tested. There are clear national rules on how the means testing system operates. Depending on ability to pay, some care home residents will have their personal care costs fully funded, some will have their care costs part funded and some will pay the full costs themselves. Nothing in the deprivation of liberty provisions calls into question these fundamental principles. The charging system is set nationally by the National Assistance (Assessment of Resources) Regulations 1992 with additional guidance on its operation in the Charging for Residential Accommodation Guide, both of which are amended annually to take account of inflation and any other changes deemed necessary. Complaints about the level of charges levied by a local authority are subject to the usual social services complaints procedures, and any decisions made on charges would be open to judicial review.

88  The national policy includes the provision of free care to care home residents whose primary need is for healthcare with a clear NHS continuing care appeal mechanism, including access to a Court, for cases where there is any dispute about the boundaries between health and personal care costs. Eligibility criteria for NHS funded continuing care are set locally by each Strategic Health Authority (SHAs) in England, and each Local Health Board in Wales, all based on the principle of whether the primary need is for healthcare. Assessment of an individual case against the eligibility criteria is carried out by the Primary Care Trust in England and the Local Health Board in Wales.

89  If a person or their family, or the local authority, wish to appeal against the way in which their case has been assessed against the criteria the first complaints tier is local dispute resolution. The second tier (formal resolution) is to apply to the SHA Independent Review Panel in England, and the Local Health Board Independent Review Panel in Wales. If the complaint is still unresolved, the complainant can follow the NHS Complaint Procedure in both England and Wales.

90  The provision of additional safeguards to protect the human rights of people who are not able to consent to arrangements made for their care is not a reason to alter the mechanisms that apply to commissioning and funding health and social care for all.

91  The Committee has drawn comparison between a person being deprived of their liberty in their own best interests in a hospital, who will not be charged for their care costs, and a person deprived of their liberty in their own best interests in a care home, who may be. However the circumstances are different, a person is in hospital because their primary need is for healthcare and it is necessary for them to be a hospital patient to receive that care. If a person is in a care home and is contributing financially that will be because their primary need is for personal care and not healthcare.

92  It should be highlighted that people receiving the deprivation of liberty safeguards will largely be those with severe learning disabilities and older people with severe dementia or similar problems. In most cases, the residential accommodation provided would be the person's main residence, and the need for the accommodation would have been assessed separately from the decision on deprivation of liberty. Any financial contribution they may make towards the cost of their care is determined by the national policy on means testing as detailed above. We believe that to provide free personal care for all people deprived of liberty in care homes would in fact create new, unacceptable, inequities and potential discrimination between those care home residents who are deprived of liberty and those who are not.

93  People living in care homes can have a say in which home they reside in, even if a local authority is fully funding their care costs[48]. In the case of a person who is paying for their care, if they or their family wish to choose a different care home and one is available, then they could do so. If the person or their family dispute the deprivation of liberty authorisation because they do not consider that the person should be in a care home at all, they can make an application to the Court of Protection to challenge the authorisation.

(10) Omissions from the Bill

(a) Article 8 and the need for treatment safeguards for Bournewood patients

21  In our view consideration should be given to providing effective supervision and review of decisions to give treatment without consent for mental disorder, where that involves psychotropic medication or other significant interferences with physical integrity, such as Electro Convulsive Therapy. (Paragraph 97)

22  We remain of the view that effective supervision and review requires more than the common law or the Mental Capacity Act currently provide. (Paragraph 101)

23  We consider that where patients are to be given treatment such as sedative medication, Electro Convulsive Therapy or are subject to restraint or seclusion there is a need for some supervision and review, whether that be by a second opinion system or by a visiting inspectoral body such as the Mental Health Act Commission. (Paragraph 101)

94  A Mental Capacity Act deprivation of liberty authorisation only authorises deprivation of liberty. It does not authorise any course of treatment. The provision of treatment to a person being deprived of their liberty must be in accordance with the arrangements and safeguards contained in the Mental Capacity Act as it currently stands. We consider that these arrangements and safeguards comply with the requirements of Article 8 of the Convention. The provisions of Section 4 (Best interests), Section 5 (Acts in connection with care or treatment) and Section 6 (Section 5 acts: limitations) of the Mental Capacity Act are particularly relevant in this context.

95  Treatment decisions in respect of a person who is deprived of their liberty would therefore be governed by the provisions of the Mental Capacity Act in the same way as for any other person who did not have the capacity to consent. The fact that a person is deprived of liberty does not make them any better or worse placed to understand the treatment, or make decisions about it and so it does not alter their need for treatment safeguards.

96  We are confident that the provisions of the Mental Capacity Act relating to treatment decisions pursue the legitimate aim of protecting the health and well-being of individuals lacking capacity in a proportionate manner. The requirements governing decision-making when a person is not able to consent are robust, practical and were the subject of extensive scrutiny in Parliament during the passage of the Mental Capacity Act. They require that:

●  Decisions must be taken on the basis of the person's best interests.

●  The person must be helped to participate as fully as possible in the decision-making process.

●  Their past and present wishes, feelings, beliefs and values, must be considered.

●  A specified list of people, including family, friends and carers, must be consulted and their views taken into account in determining what is in the person's best interests.

●  Where serious medical treatment is proposed, an Independent Mental Capacity Advocate (IMCA) must be instructed to support and represent the person if there is no one to consult among friends, family and carers.

●  An IMCA, or any of the others who need to be consulted, has the right to request a second opinion.

●  Treatment decisions may be determined by a valid and applicable advance directive, or by the consent of an attorney if within the authority given to them by the person, or by a deputy if within the authority granted by the Court of Protection.

97  Standards of care provided in hospitals and care homes, whether statutory or independent sector providers are already subject to a monitoring and inspection regime.

98  We consider that these safeguards protect the person's Article 8 rights. They would apply to the examples raised by the Committee of electro convulsive therapy and sedation. If a person is subject to a deprivation of liberty authorisation these safeguards apply in the same way, as do advance decisions. There is an additional safeguard in those cases in which the reason for deprivation of liberty is to enable treatment to take place, in that the benefits of receiving treatment would be considered as part of the independent best interests assessment, which would be subject to the deprivation of liberty review and challenge safeguards. This would be in addition to the other provisions relevant to treatment in the Mental Capacity Act, as outlined above.

99  It is important also to note that the Mental Capacity Act deprivation of liberty safeguards cannot be used to keep people in hospital for treatment for mental disorder if they object and the Mental Health Act could be used instead, except in a case where a donee of Lasting Power of Attorney, or a deputy appointed by the court, consents on the person's behalf to the admission or treatment. The eligibility requirement within the deprivation of liberty assessment process is specifically aimed at identifying whether detention under the Mental Health Act would be more appropriate and, where it is, a Mental Capacity Act deprivation of liberty authorisation could not be given. It is highly likely, for example, that a person who was in hospital for treatment for a mental disorder and who needed to be restrained or secluded would be regarded as objecting and detained under the Mental Health Act rather than being deprived of liberty under the Mental Capacity Act.

(b) Seclusion

24  We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill to ensure that seclusion is only used when strictly necessary and that individuals subject to it should have access to review at intervals to ensure that it is brought to an end when no longer necessary. (Paragraph 110)

100  The Government has considered the recommendation of the Committee and confirms that it will continue with its policy of managing the issue of seclusion through guidance in the Code of Practice, issued under section 118 of the 1983 Act. Officials in the Welsh Assembly Government have indicated that a similar approach will be taken in the Code of Practice for Wales. As detailed in my letter of 17 January 2007 to the Committee, the Government is of the view that the use of primary or secondary legislation as a means of regulating the practice of seclusion does not provide the appropriate flexibility required to best manage patient safety. The Committee will be aware that the Code of Practice makes clear that the sole aim of the use of seclusion is to contain severely disturbed behaviour which is likely to cause harm to others.

101  The Government notes that this approach is consistent with the decision of the House of Lords in R (Munjaz) v Mersey Care NHS and others[49] ("Munjaz"). The outcome of that case clearly demonstrates that an overly prescriptive approach to the regulation of seclusion is not appropriate.

102  That case also makes it clear that whilst the use of guidance enables a degree of flexibility, in order for departures from the Code of Practice to be lawful there must be demonstrably justifiable cogent reasons for such departures, which the Courts will not shy from scrutinising. The Committee will be interested to note that the Government brought its own amendment to the Bill (see clause 10 (the fundamental principles)) in the House of Lords to codify the status of the Code of Practice in primary legislation, thus ensuring that the high standards of adherence to the guidance expected, as set out in the Munjaz judgement, are observed.

103  The Committee will also be interested to note that the draft illustrative Code of Practice and the existing Code of Practice, contain clear guidance to ensure seclusion is only used where necessary for the sole purpose for which it may be used and that review of any patient in seclusion occurs at regular intervals.


40   (1979) 2 EHRR 387. Back

41   [2002] 2 FCR 577; (2002) 35 EHRR 18 at para. 81. Also see paras 90 and 91. Back

42   Judgment of 5 October 2000. Back

43   41 D. & R 186. Back

44   The Draft Mental Health Act 1983 Approved Clinician Directions. Back

45   (1994) 22 BMLR 1. Back

46   As mentioned at para. 49 of my response to the Committee of 17 January 2007, "In the Government's view, the relevant test in relation to Article 8(2) of the Convention is therefore to be found in the plain words of the Article and the conventional three-fold test of whether the treatment is: (i) in accordance with the law…(ii) for a legitimate aim; and (iii) necessary in a democratic society.  Back

47   The Code of Practice to the Mental Capacity Act 2005 covers both England and Wales, and as such the relevant part of this Code on the Bournewood proposals will also cover both England and Wales. Back

48   National Assistance Act 1948 (Choice of Accommodation) Directions 1992 for England and the National Assistance Act 1948 (Choice of Accommodation) Directions 1993 in Wales. Back

49   [2005] UKHL 58. Back


 
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