Joint Committee On Human Rights Fourth Report

2  Human rights compatibility issues

(1) Detention on Grounds of Unsoundness of Mind

6. 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. Article 5(1) provides that no-one shall be deprived of his liberty unless the deprivation is carried out in accordance with a procedure prescribed by law and is necessary in a democratic society on one of a number of grounds. One of those grounds, set out in Article 5(1)(e) is deprivation of liberty on grounds of unsoundness of mind. The case law of the European Court of Human Rights specifies that any of the exceptions to the right to liberty in Article 5(1) must be construed narrowly.[9] The case law of the European Court of Human Rights has imposed various limits on the power to detain on grounds of mental disorder, most notably those set out in Winterwerp v the Netherlands.[10] A true mental disorder requires more than mere deviancy from society's norms. The Winterwerp requirements for a lawful psychiatric detention must be met:

"The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."[11]

7. Detention under the Mental Health Act 1983, as it would be amended by the Mental Health Bill, requires that the person must be suffering from 'any disorder or disability of mind.' The Convention requires that there be a 'true mental disorder' established by objective medical evidence. The new broad definition of any disorder or disability of mind has been criticised by JUSTICE as being 'too broad and sweeping'.[12] Psychiatrists might view a true mental disorder as being one which appears in either the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM-IV-R) or the International Classification of Diseases of the World Health Organization (ICD-10). The problem is that these classificatory systems contain a wide range of conditions including disorders of sexual preference, and dependence on alcohol or drugs, which have not previously come within the scope of national mental health legislation, although dependence on alcohol or drugs may be a ground of detention under Article 5(1)(e).

8. The Government considers that the definition of "mental disorder" is consistent with Article 5(1)(e) which uses the term unsoundness of mind. In Winterwerp v The Netherlands[13] the Court declined to give a definitive definition of 'unsoundness of mind' as it was a term whose meaning is constantly evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society's attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming wide-spread.

9. One ground of criticism advanced by JUSTICE relates to the lack of clarity in the scope of the exclusions from the definition of mental disorder. The exclusion in clause 1(3) of the Bill states that dependence on alcohol or drugs is not considered to be a disorder or disability of mind. This is then explained in the Draft Code of Practice as not excluding other mental disorders relating to the use of alcohol or drugs, and the example is given of acute uncomplicated intoxication (drunkenness). The Code therefore creates the possibility that Mental Health Act powers may be used in relation to drunk people, but at the same time states that such a condition would 'only rarely justify the use of powers under the Act.'[14]

10. Currently a person may not be treated as suffering from a mental disorder by reason only of sexual deviancy. This, in the Government's view presents 'an arbitrary obstacle to the use of the Mental Health Act 1983 where it is clinically justified.'[15] The Government's intention is to ensure that paedophiles can be subject to indeterminate detention under the Mental Health Act 1983, without the need for any other accompanying mental disorder. Persons who pose a risk of sexual offences would be open to detention on grounds of personality disorder, but the Government is concerned that the sexual deviancy exclusion might give clinicians discretion not to detain such persons, and wishes to remove that possibility.

11. JUSTICE has expressed concern at the removal of the exclusion in relation to sexual deviancy and the possible bringing of transsexualism, masochism and fetishism within the scope of compulsory powers. JUSTICE considers it entirely inappropriate that all sexual preferences and behaviours classified as psychiatric disorders should be brought within the scope of the legislation, and suggests that the exclusion for sexual deviancy be retained, but that a specific exception be made for paedophilia.[16] The Department has clarified that it wishes to include the paraphilias (abnormalities of sexual preference) which appear in standard classifications of mental disorders, 'where they reach a level of clinical significance.' The level of clinical significance necessary to cross the paraphilia threshold is described in the DSM-IV-R of the American Psychiatric Association as being reached when the behaviours or fantasies lead to a clinically significant level of distress or impairment (e.g. are obligatory, result in sexual dysfunction, require participation of non-consenting individuals, lead to legal complications, or interfere with social relationships). The DSM-IV-R states that the paraphilia of fetishism is not diagnosed where the fetishes are limited to articles of female clothing used in cross dressing, as in transvestic fetishism. Transsexualism has been held to be an aspect of private life which must be respected under Article 8.

12. In light of the above, we asked the Government why it had chosen to remove the exclusion in relation to sexual deviancy rather than retain it with an exception for paedophilia, and to provide us with a more detailed explanation of the Government's intention to treat paedophilia as a mental disorder.

13. The Government's explanation is that if a situation arises where 'the relevant professionals (and if appropriate the relevant court) believes it appropriate that action should be taken because a patient suffers from such a disorder it is the needs of the patient and risk which determine whether action is taken under the Act.'[17] The Minister was at pains to emphasise in the Government response that the Department does not consider transsexualism to fall within the current sexual deviancy exception, and it will therefore not be affected by the changes proposed in the Bill to remove this exclusion. Gender identity disorder is included in the DSM-IV-R as a mental disorder.

14. As we have stated, 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 Identity 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.

15. At the Committee stage in the House of Lords Baroness Neuberger quoted from the evidence of the Disability Rights Commission, who said:

In relation to non-discrimination principles we believe it is not merely desirable but necessary to restate and reinforce key principles which feature in other legislation. The existing public sector duties to promote disability and race equality need practical reinforcement in a legislative framework in which people may be deprived of their liberty and where prejudiced and discriminatory judgments can so easily come into play.[18]

Given the breadth of the new definition of mental disorder, we consider that the same argument about the need for principles 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.

16. The Winterwerp criteria for a lawful psychiatric detention require objective medical evidence of a true mental disorder. This is provided for by the reports from a psychiatrist and another doctor (section 12), which are presented to the competent authority which is the managers of the relevant hospital (section 6). The mental disorder must be of a nature or degree making treatment in hospital appropriate, and it must be the case that treatment cannot be provided without detention (sections 2 and 3), treatment must be necessary for the patient's health or safety or for the protection of other persons. We consider that these procedures appear broadly to comply with the case law on Article 5(1)(e) of the Convention.

(2) Conditions of Compulsion: Replacing 'Treatability' with Availability of Appropriate Treatment.

17. The Government proposes replacing the current 'treatability' condition of detention (medical treatment in hospital is likely to alleviate or prevent deterioration in the patient's condition) with a new condition of compulsion that appropriate treatment must be available for the patient. The Government has said that its intention is (inter alia):

To remove ground for argument about the efficacy or likely efficacy of a treatment which can be used to prevent detention of people who present a risk to themselves or others.[19]

18. A further goal is to ensure that the fact that a patient with personality disorder is refusing to co-operate with psychological treatment would not be a ground for release because the fact that he is refusing treatment means it is not likely to alleviate or prevent deterioration in his condition.

19. As the Government points out,[20] the criteria set out in Winterwerp do not include a requirement that the patient be treated, and so the Government does not consider that Convention rights are affected. In Winterwerp the Court held that a mental patient's right to treatment appropriate to his condition cannot as such be derived from Article 5(1)(e). The Strasbourg Court has held subsequently that detention on grounds of unsoundness of mind must take place in a hospital, clinic, or similar institution.[21] Beyond that the Court has declined to impose requirements as to treatment under Article 5(1)(e). In Hutchison Reid v United Kingdom (2003) the Court held that Article 5(1)(e) imposed no requirement that detention in a mental hospital was conditional on the illness or condition being of a nature or degree amenable to medical treatment.[22] The Court held (paragraph 51) that confinement under Article 5(1)(e) may be necessary not only where a person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons.

20. We are mindful of the strongly held views of psychiatrists during the Committee stage in the House of Lords, that if the so-called 'treatability' test is to be abolished, it should be replaced with the test that treatment is available which is likely to be of therapeutic benefit to the patient. This is to avoid a perceived risk of psychiatrists becoming mere custodians rather than therapists, and psychiatric detention becoming perceived as preventive detention. Counsel's opinion obtained by MIND at para 13.3.2 noted that the decision in Reid v United Kingdom pre-dated Council of Europe Recommendation No (2004)10 of the Committee of Ministers to Member States concerning the human rights and dignity of persons with mental disorder. Article 17(1)(iii) of the Recommendation requires that detention has a 'therapeutic purpose' which is broadly defined (Article 2(3)) as 'including prevention, diagnosis, control cure or treatment.' Although the Recommendation may represent an international consensus, the UK Government has reserved the right not to comply with the recommendation as a whole. 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.

(3) Renewal of Detention: the requirement of a true mental disorder established by objective medical expertise

21. Initial detention under the Act as amended will still be based on objective medical expertise, in the form of reports from registered medical practitioners. However, renewal of detention will be carried out by the responsible clinician, who need not be a doctor, furnishing a report to the managers of the hospital that the conditions justifying detention continue to be met. If initial detention must be based on objective medical expertise to be compatible with Article 5 ECHR, there is an argument, following Winterwerp, that the same should apply to its prolongation. The Bill proposes that the person in charge of a detained patient's treatment should no longer be the responsible medical officer (RMO), who must be a doctor, but would in future be the responsible clinician (RC) who need not be medically qualified.

22. The desired effect is described in paragraph 52 of the Explanatory Notes:

"The RC may be any [approved clinician] who has been approved for that purpose. Approval need not be restricted to medical practitioners, and may be extended to practitioners from other professions, such as nursing, psychology, occupational therapy and social work."

23. The Government takes the view that 'the responsible clinician does not necessarily need to be a registered medical practitioner in order to satisfy the requirements of the Convention.'[23] Acknowledging that Winterwerp requires that deprivation of liberty must be based on "objective medical expertise", the Government argues that

"[T]his means relevant medical expertise, and not necessarily that of a registered medical practitioner. For example, a psychologist would have relevant skills in this context and be able to recognise that a person was suffering from a mental disorder and the knowledge to go to someone else with the appropriate expertise when needed."[24]

24. We asked the Government to explain further its view that medical expertise need not necessarily involve a doctor. In particular, we asked whether it was envisaged that nurses, social workers or occupational therapists should furnish the objective medical expertise necessary to renew detention, and whether the Government considered that a process of detention and renewal that need not be based on a medical report from a doctor complied with the requirements for a lawful detention on grounds of unsoundness of mind as set out in Winterwerp v the Netherlands.

25. The Department takes the view that 'the phrase 'medical expertise' as referred to by Winterwerp was used in the wider sense and the Court was not seeking to lay down which sort of qualifications available in a national system would be acceptable and which would not.' [25] The Government has clarified that 'it is envisaged that psychologists, nurses, social workers or occupational therapists approved as approved clinicians and therefore able to act as the responsible clinician will be able to furnish the objective medical expertise necessary to renew detention. The Government relies on the fact that responsible clinicians 'will have to meet minimum criteria which will include a requirement that the person seeking approval is able to identify the presence of mental disorder and the severity of the disorder.'[26]

26. We do not agree with the Government's definition of objective medical expertise. In Varbanov v Bulgaria[27] the Strasbourg Court gave every indication in the following paragraphs that objective medical expertise involved reports from psychiatrists who are doctors. The Court made it clear that the opinion of a medical expert who is a psychiatrist is necessary for a lawful detention on grounds of unsoundness of mind. This requirement would have been met had the doctors present at the admission furnished an opinion that the applicant needed to be detained for psychiatric examination. This indicates that the opinion justifying detention should come from a medically qualified expert who is a who has recognised skills in psychiatric diagnosis and treatment.

47. The Court considers that no deprivation of liberty of a person considered to be of unsound mind may be deemed in conformity with Article 5 § 1 (e) of the Convention if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the required protection against arbitrariness, inherent in Article 5 of the Convention.

The particular form and procedure in this respect may vary depending on the circumstances. It may be acceptable, in urgent cases or where a person is arrested because of his violent behaviour, that such an opinion be obtained immediately after the arrest. In all other cases a prior consultation is necessary. Where no other possibility exists, for instance due to a refusal of the person concerned to appear for an examination, at least an assessment by a medical expert on the basis of the file must be sought, failing which it cannot be maintained that the person has reliably been shown to be of unsound mind (see X v. the United Kingdom judgment of 5 November 1981, Series A no. 46).

48. In the present case the applicant was detained pursuant to a prosecutor's order which had been issued without consulting a medical expert. It is true that the purpose of the applicant's detention was precisely to obtain a medical opinion, in order to assess the need for instituting judicial proceedings with a view to his psychiatric internment.

The Court is of the opinion, however, that a prior appraisal by a psychiatrist, at least on the basis of the available documentary evidence, was possible and indispensable. There was no claim that the case involved an emergency. The applicant did not have a history of mental illness and had apparently presented a medical opinion to the effect that he was mentally healthy. In these circumstances, the Court cannot accept that in the absence of an assessment by a psychiatrist the views of a prosecutor and a police officer on the applicant's mental health, which were moreover based on evidence dating from 1993 and 1994, sufficed to justify an order for his arrest, let alone his detention for twenty-five days in August and September 1995.

It is also true that when he was arrested the applicant was taken to a psychiatric clinic where he was seen by doctors.

However, there is no indication that an opinion as to whether or not the applicant needed to be detained for an examination was sought from the doctors who admitted him to the psychiatric hospital on 31 August 1995. The applicant's detention for an initial period of twenty days, later prolonged, had already been decided by a prosecutor on 27 January 1995, without the involvement of a medical expert.[28]

27. JUSTICE have raised a further issue in relation to renewal of detention which deserves consideration. In R v Warlingham Park Hospital Managers, ex p B[29] the Court of Appeal held that the lawfulness of continued detention depends on the furnishing of a report by the responsible medical officer (RMO) to the hospital managers. The Court of Appeal held that it was not necessary for the managers to consider the report before detention could be renewed. It was enough to renew the authority to detain that the RMO's report had been despatched to them. In Winterwerp v the Netherlands the European Court of Human Rights held that the notion underlying the phrase 'in accordance with a procedure prescribed by law' in Article 5 ECHR is 'one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary.'[30] The appropriate authority which detains non offender patients is the hospital managers.[31] JUSTICE urge that section 20 be amended so that it is made clear that any report provided by the (now) responsible clinician must be considered by the hospital managers in order to renew the authority for detention.

28. In light of this concern, we asked the Government whether it considered it necessary to provide for consideration by the hospital managers of renewal reports in order to comply with Article 5(1)(e), and if not, why not.

29. The Government responded that the Convention does not require the formal renewal of a patient's detention but merely for the 'patient's case to be kept under review', and it is the responsible clinician who performs this review function. The Department also considers that the responsible clinician is the appropriate authority for the renewal of the patient's detention. The Government's argument is that after initial admission the hospital managers cease to be the detaining authority and responsibility for the patient's case passes to the responsible clinician.[32] We find this argument unconvincing. Currently the hospital managers are responsible for scrutinising the documents authorising initial detention and have the power to rectify certain defects if they become apparent within the first 14 days. It is not apparent to us how and by what process the responsible clinician becomes the competent authority for Convention purposes. Given that the right to liberty in Article 5 ECHR is engaged it is of considerable concern that the report which renews detention need not come from a medical practitioner, and is subject to no scrutiny by any higher authority, other than the Mental Health Review Tribunal (MHRT). It is of concern that the responsible clinician who represents the detaining authority before the MHRT may not be medically qualified. In their evidence to us the Council on Tribunals note that the Tribunal generally relies on the evidence of the patient's Responsible Medical Officer to confirm that the conditions justifying detention continue to be met.[33] Although in some circumstances it might be appropriate for a clinical psychologist to provide the tribunal with the objective medical expertise, 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 MHRT may be required to seek additional medical evidence to verify that the conditions of detention continue to be met.

(4) The Nearest Relative

30. In JT v United Kingdom,[34] the UK was held to be in breach of the right to respect for privacy under Article 8 ECHR, because the patient had no right to displace her nearest relative in the county court. Her complaint was that her nearest relative was her mother, who was living with a man who JT alleged had abused her in the past. Each time JT applied for discharge from detention to a Mental Health Review Tribunal, the tribunal rules required that her mother as nearest relative, be informed. JT objected to her mother being given information about her life. The Mental Health Act 1983 allows for the nearest relative to be displaced, but as noted above there is currently no provision for the patient to nominate or replace his/her nearest relative.

31. In JT v. United Kingdom the European Commission of Human Rights concluded that this deficiency contravened the right to respect for private and family life under Article 8.[35] The Commission stated that the absence of any possibility to apply to the County Court to change the applicant's nearest relative rendered the interference with her rights under Article 8(1) disproportionate to the aims pursued. The judgment of the European Court noted that a friendly settlement was reached between JT and the UK Government, whereby the Government undertook to introduce reform proposals to (1) enable a patient to make an application to the court to have his nearest relative replaced where the patient objected on reasonable grounds to a particular individual acting in that capacity, and (2) prevent certain persons from acting as the nearest relative of the patient.

32. Clauses 21to 24 of the Bill amend the provisions of sections 26-29 of the Mental Health Act 1983 concerning nearest relatives. The provisions make it possible for the patient to seek displacement of the person who, according to the statutory formula in section 26, is the nearest relative. Such applications may be made on the grounds that the person is unsuitable to act as the nearest relative. The patient will be able to nominate any person of their choice to act as their nearest relative (new s. 29(2)(za)). Once an unsuitable person has been displaced and an acting nearest relative is appointed by the court, that appointment can be made indefinite so that an "unsuitable" person will not resume the role of nearest relative following the discharge from compulsion of the patient, hence meeting the goal required by the friendly settlement of preventing an unsuitable person from acting as nearest relative again in the future if there is a break in the patient's detention.

33. Given that the unsuitability ground applies not just to applications by the patient, but also by others (e.g. hospital authorities or local authorities), concerns have been expressed by JUSTICE that the unsuitability ground might be used to displace a 'difficult' nearest relative, who might not meet the ground of having unreasonably objected to detention or unreasonably exercised the power of discharge:

"However, we are concerned that the breadth of the ground may allow for inappropriate considerations being used to justify removal of a nearest relative. We note that nearest relatives frequently have a tense relationship with those detaining and treating patients, and we have serious concerns that applications may be made to remove a nearest relative on the basis of suitability, when, in essence, the detaining/treating authority is making the application on the basis that they are 'difficult customers'. In the circumstances, we would urge strongly that clause 21(5) be amended so as to provide sufficient protection to nearest relatives falling into this category. One way in which this could be done would be to outline considerations that must be taken into account when determining whether a nearest relative is a suitable person to act as such."[36]

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

35. However, since the removal of a nearest relative will usually involve an interference with the patient's right to respect for their private and family life in Article 8 ECHR, we agree with JUSTICE that the breadth of clause 21(5) raises a human rights issue. We therefore asked the Government whether it planned to introduce safeguards to protect the right of a nearest relative to be 'difficult' in the sense of opposing compulsion, short of unreasonably opposing admission for treatment or unreasonably exercising the power of discharge, which are already grounds for displacement.

36. The Department in its response has confirmed that it does not want to restrict the nearest relative role by allowing for displacement for acting independently in this way. The response continues by saying that the judgment of unsuitability is not a question of 'how well he exercises his powers' but 'relates to the suitability of him having this type of relationship with the patient.'[37] The Department then declares its intention that 'not a suitable person to act as such' should cover cases in which it would be detrimental to the welfare of the patient to have such a relationship with the patient, and undertake to detail during the passage of the Bill the cases it has in mind. Lord Hunt of King's Heath offered some amplification of the Government's approach during the Committee Stage in the Lords when he said:

We do not believe that a person is unsuitable to be the patient's nearest relative simply because the patient may be upset with the nearest relative over a trivial matter. We know that suffering with mental disorder is often a distressing and difficult time for the patient and that it is no less so for those who love and care for the patient. In that environment there can be potential for disagreement between a patient who may not wish to go to hospital, for example, and the nearest relative who reluctantly accepts that that is the best course of action. Such a disagreement should not in itself be grounds for removing important powers from the nearest relative.

We have in mind situations where a nearest relative's occupation of that role and its powers under the Act pose a real and present danger to the health or well-being of the patient. Where a nearest relative has abused the patient, for instance, he should not be allowed to exercise the rights of the nearest relative. It is not important how recently the abuse took place. If the patient or others who know or are close to the patient have a genuine fear that the abuse may be repeated—or even that a relationship with a formerly abusive nearest relative may cause the patient distress—we intend that such a person should be considered unsuitable to act as the nearest relative of the patient. These applications will be heard, as they now are, in the county court. The court will not be asked to sit in judgment of any of the past actions or deeds of the nearest relative. Their role will be to determine whether the nearest relative is otherwise unsuitable to act as such.

The opinions and views of the patient will be very important and we fully expect that they will form part of the court's deliberations. However, we do not wish the court to feel constrained if the patient would wish that person to remain as their nearest relative. I would instance cases where the victim of an abuser actually acts to protect the abuser, either out of fear of the abuser or through a form of identification with him. We do not wish the court to feel constrained in such circumstances in displacing a nearest relative it finds unsuitable.[38]

37. The Government's approach to suitability suggests that the concept is both too broad and too narrow. It is too narrow to enable a patient to displace a nearest relative with whom they emphatically do not get along, unless there is some undercurrent of abuse. Yet if left undefined it is also potentially too broad in enabling a nearest relative who is in conflict with mental health professionals to be removed on the initiative of those professionals. The case of R(E) v Bristol City Council[39] provides that, in order to ensure compatibility with Article 8, the Approved Social Worker's duty to consult the nearest relative about compulsory admission if appropriate and practicable does not apply if the patient objects to that person being consulted as the nearest relative. Under the Bill this will remain good law, and the patient can choose who will not be consulted as their nearest relative, but the only way of displacing a nearest relative, and replacing them with someone acceptable to the patient, will be if they are 'unsuitable.' The Government appears to equate unsuitable with abusive, whether or not that abuse is proven. Lord Patel of Bradford observed during the Committee stage that the Draft Code says that 'a nearest relative cannot be unsuitable on the basis that another person is deemed to be more suitable' and that this 'sits uneasily with the intent to address the unwarranted interference with patients' private lives.' If, as appears to be the case, the Government's intention is to confine the patient's right to seek displacement 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 strain on such a relationship, making it inappropriate for such a person to determine the future of the patient.

(5) Procedure for making Community Treatment Orders

38. Currently there are three methods of imposing compulsory powers on patients in the community under the Mental Health Act 1983: (1) extended leave under section 17; (2) guardianship under section 7; (3) after-care under supervision under sections 25A-J, a procedure introduced by the Mental Health (Patients in the Community) Act 1995. Neither guardianship nor after-care under supervision are much used, and it would appear that section 17 leave is the most frequently used vehicle for imposing control over patients in the community.

39. Section 17 leave is granted by the Responsible Medical Officer (RMO). If the Bill becomes law, this power will pass to the responsible clinician. There has been considerable case law on section 17. A patient may be granted leave subject to such conditions as the RMO thinks necessary in the interests of the patient or for the protection of other persons. This power has been used to provide the equivalent of a community treatment power by the RMO granting leave subject to a condition that the patient takes his or her medication. The patient remains liable to be detained, in the sense that unless the patient is discharged from section, he or she may be recalled to hospital by the RMO if necessary for the patient's health or safety or for the protection of others. Current case law holds that the patient's liability to detention may be renewed repeatedly while they continue to live in the community, so long as the patient needs some of their treatment in hospital, not necessarily as an in-patient.[40]

40. The proposal in the Bill is that section 17 leave will remain, but in a reduced role, and that after care under supervision will be replaced by community treatment orders ("CTOs"). Clause 25 introduces new sections 17A-17G which set out how CTOs are to be made, and how they will work.

41. Although section 17 leave will remain, before granting section 17 leave for seven days or more, the responsible clinician must first consider whether the patient should be dealt with under section 17A instead. Only patients who have been detained in hospital under section 3 (admission for treatment for up to six months), or who are detained under one of the provisions for detaining offender patients under Part 3 without restrictions on discharge, are eligible for a CTO (s 17A(1),(2)). Although the Government clearly sees CTOs as preferable to section 17 leave, clinicians may well continue to use section 17 leave as an alternative to the new CTO.

42. It may be noted in passing that in terms of the nomenclature adopted by the 1959 and 1983 Act the term community treatment order is a misnomer, since under the scheme of the Act, orders are made by courts. None of the civil powers to detain operate by orders, but by applications to the hospital managers. A CTO is defined in s 17A(1) as an order in writing by the responsible clinician discharging a detained patient from hospital subject to his being liable to recall in accordance with section 17E. There appears to be no requirement for an application to the hospital managers. The order is made by the RC. The RC must be of the opinion that the relevant criteria are met, and must also obtain the written opinion of an Approved Mental Health Professional (AMHP) that the relevant criteria are met, and that an order is appropriate.

43. In L v Sweden,[41] the European Commission on Human Rights held that a decision provisionally to release someone who had been detained in a psychiatric hospital constitutes an interference with his right to respect for private life. However, the Commission went on to declare the application manifestly ill-founded, holding that the measure was justified in the interests of the person's health under Article 8(2) which provides that 'There shall be no interference with this right except such as is in accordance with the law and is necessary in a democratic society for ... the protection of health' and the applicant could not be said to have an 'arguable claim' of a violation of Article 8.[42] If granting a CTO is necessary on grounds of health or to protect the rights and freedoms of others, there would be no interference provided it is necessary in a democratic society and is done in accordance with law.

44. The relevant criteria are—

a)  the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;

b)  it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;

c)  subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;

d)  it is necessary for his health or safety or for the protection of other persons that he should be liable to be recalled to hospital for medical treatment; and

e)  appropriate medical treatment is available for him.

45. A CTO must specify conditions to which the patient is to be subject while the order remains in force (s 17B(1)), but conditions may only be specified in the order with the agreement of the AMHP.

46. The conditions which may be specified include ((s 17B(3))—

a)  a condition that the patient reside at a particular place;

b)  a condition that the patient make himself available at particular times and places for the purposes of medical treatment;

c)  a condition that the patient receive medical treatment in accordance with the responsible clinician's directions;

d)  a condition that the patient make himself available for examination;

e)  a condition that the patient abstain from particular conduct .

47. The Draft Code of Practice states at 12A.23:

"This last condition may be appropriate, where, for example, the patient needs to avoid usage of illegal drugs because it is known that if he does not do so, the likelihood of relapse will be greater. It should not be used unless the conduct in question is directly relevant to the patient's medical condition.

The above is not an exhaustive list of conditions which may be applied - there may be others depending on the patient's individual circumstances."

48. Concerns were expressed about the potential breadth of these conditions at the Committee stage in the House of Lords, that 'CTOs may be widened, using the Code of Practice in any way clinicians see fit.' [43]

49. On the face of the law, the possibility exists that a CTO may be imposed on a patient with restrictive conditions as to behaviour potentially interfering with rights under Article 8, on the authority of a Responsible Clinician (who need not be a doctor) and an Approved Mental Health Professional. This authority lasts six months before renewal is required. In light of this, we asked the Government whether it considered that the procedure envisaged, without need for the managers of the hospital to consider and endorse the application, was sufficient to comply with the requirement in Article 8(2) of being in accordance with law.

50. There does not appear to be a procedure in the statute whereby an application is required to be made to the managers of the hospital, or any competent authority. The draft Code of Practice envisages a procedure as follows, but there is nothing in the statute to require it:

12A.20 On completion, the CTO should be signed by the responsible clinician and the AMHP and sent to the Hospital Managers. The CTO will be effective from the date on which the patient is discharged from detention.

51. A CTO patient is not discharged from detention: authority to detain is suspended for the duration of the CTO. There is provision for renewal of a CTO after six months (s 20A), whereby the responsible clinician must examine the patient and provide a written report to the managers before the CTO can be renewed. 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 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.[44]

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

52. The effect of the CTO provisions is to allow for up to 72 hours' detention following recall on the authority of the responsible clinician. The RC may release the patient at any time within 72 hours of recall, and as long as the CTO has not been revoked, the patient will retain his or her community patient status. Currently the possibility exists that a CTO patient might repeatedly be subject to a number of short-term detentions for up to 72 hours for the purpose of enforcing medication, and unless the CTO is revoked, it appears that there will be little by way of effective redress, other than an appeal against the order to a Mental Health Review Tribunal (MHRT), which can only review the need for an order and cannot review the conditions of an order.

53. JUSTICE have expressed concern that

"[T]he MHRT has no power to review the conditions imposed on a CTO. Instead, the power of the MHRT is limited to discharging a patient from a CTO. We are deeply concerned that the imposition of conditions could in some cases amount to a deprivation of a patient's liberty (if for example there were conditions that a patient had to reside in a certain institution, and was subject to an extensive curfew or supervision). In such cases the patent inability of the MHRT to review the conditions would amount to a breach of the patient's Article 5 ECHR rights."[45]

54. It may also be the case that a patient does not dispute the need for a CTO but they do object to a condition which might amount to an interference with a Convention right under Article 5 or Article 8. In such a case it might be argued that there is a breach of Article 13, in that there is no effective remedy. We therefore asked the Government whether it was its intention that there should be no right to seek review of the conditions of a CTO, and, if so, what had persuaded the Government that this approach is compatible with Articles 5 and 8 ECHR.

55. The Government response is that the need to obtain the agreement of the AMHP as to the making of the CTO and as to the nature of the conditions to be imposed is intended to provide protection against arbitrariness. The Government relies on the fact that both these persons will be public authorities and therefore required to act compatibly with Convention rights as a justification for providing no further safeguards.[46] As to the potential breadth of the conditions, the Department's view is that it will be appropriate only to attach conditions that are considered clinically necessary to ensure that the patient continues to receive the treatment he needs, or which relate to his own safety or the protection of others. The Department has stated that the Codes of Practice will provide guidance to the effect that conditions attached to a CTO will be kept to a minimum consistent with ensuring that the patient gets the treatment he needs and to protect the patient and others from harm.

56. We do not consider that the need to obtain the Approved Mental Health Professional's agreement represents a significant safeguard. Under the 1983 Act Approved Social Workers appointed by local authorities made the application, and doctors employed by the NHS made medical recommendations, and the creative tension between these two independent professionals provided the safeguard for the patient. The position will be different following the introduction of AMHPs to replace ASWs. During the Committee stage in the House of Lords considerable concerns were expressed as to the independence of AMHPs in the decision-making process, particularly as they may be employed in the same team as the responsible clinician.[47] The Government is relying on the training for RCs and AMHPs to emphasise the need for independence.

57. In our opinion, these concerns about the independence of the AMHP reinforce the need for some external safeguard that is more accessible than judicial review. The 2004 Draft Bill provided for the approval of conditions and treatment plans by the Mental Health Tribunal Under this Bill the only safeguard will be a Second Opinion Doctor. As to the potential breadth of the conditions, a requirement in the Code that they be kept to the minimum necessary to prevent risk to self or to others would not prevent the imposition of a curfew or similar restrictions which cumulatively might amount to a deprivation of liberty. Although the Statute and the Code allow for a broad range of conditions as to behaviour to be imposed, the Department views the Committee's concern as misplaced because it 'does not consider that it would be appropriate for the RC and the AMHP to impose conditions on a CTO which are so restrictive in nature that they would effectively amount to a deprivation of liberty.'[48] The Government seems to rely on the fact that people subject to CTOs have been deprived of their liberty already by detention under section 3 or equivalent, and therefore little by way of further regulation is needed. The potential breadth of conditions may well mean that a civil right could be infringed and Article 6 engaged, or at the very least that the procedural obligation under Article 8 might be engaged.

58. The lack of safeguards contrasts with other areas where Article 8 is engaged, such as the Regulation of Investigatory Powers Act 2000, and this could also be argued in respect of control orders under the Prevention of Terrorism Act 2005. We consider that the requirement that restrictions on conduct 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.

(7) The test for treatment without consent under section 58 of the 1983 Act - that it is appropriate for the treatment to be given

59. Section 58 of the 1983 Act authorises treatment using medicines or ECT subject to supervision by a system of second opinion doctors appointed by the Mental Health Act Commission. The test to be employed by second opinion doctors in authorising treatment without consent under section 58 is currently that 'the treatment ought to be given having regard to the likelihood that it will alleviate or prevent deterioration in the patient's condition.' This will be replaced by a new test - that it is appropriate for the treatment to be given. The policy intention appears to be that there will not be much difference in practice between the two tests in relation to treatment without consent. The definition of medical treatment for mental disorder under the 1983 Act has been held to include not merely treatment directed at the core disorder, but also treatment of the 'symptoms and sequelae' of the disorder.[49] Paragraph 2A4 of the Draft Code of Practice offers the following definition of appropriateness:

"Medical treatment can only be considered appropriate if it is intended to address the mental disorder(s) from which the patient is suffering and which (alone or in combination) form the basis of the decision to detain (or continue to detain) the patient. "Intended to address" means that the purpose of the medical treatment is to alleviate, prevent deterioration in or otherwise manage the disorder itself, its symptoms or manifestations or the behaviours arising from it."

60. The key question is whether the appropriateness test is sufficient to meet the requirements of Articles 3 and 8 of the Convention. The Draft Code recognises the importance of these rights and offers the opinion that 'Scrupulous adherence to the requirements of the legislation and good clinical practice should ensure that there is no incompatibility.'[50] But, in our view, it is clear from the subsequent provisions of the Code that reliance on the appropriateness test in the legislation, without more, will not be sufficient to ensure Convention compliance.

61. The Draft Code of Practice reminds clinicians of their obligations under Article 3 and Article 8 in the following terms:

  • " compulsory administration of treatment which would otherwise require consent is invariably a breach of Article 8 of the Convention (right to respect for physical integrity as an aspect of private life). Such a breach can be justified where it is in accordance with law, and it is proportionate to a legitimate aim (in this case, the reduction of the risk posed by a person's mental disorder and the improvement of their health.)
  • compulsory treatment is capable of being inhuman treatment (or in extreme cases even torture) contrary to Article 3, if its effect on the person concerned reaches a sufficient level of severity. However, it will not be a breach if it is convincingly shown to be a medical necessity.[51]"

62. The Draft Code then draws on the case law on section 58, and in particular R (on the application of N) v Dr M and others[52], to list the factors to be considered in determining whether treatment without consent is a clinical necessity and therefore lawful:

"In determining whether treatment is a medical necessity, the questions a court will ask itself include:

a)  how certain is it that the person suffers from a treatable mental disorder;

b)  how serious a disorder it is;

c)  how serious a risk is presented to others;

d)  how likely is it that, if the patient does suffer from such a disorder, the proposed treatment will alleviate the condition;

e)  how much alleviation there is likely to be;

f)  how likely it is that the treatment will have adverse consequences for the patient; and how severe may they be.

These are no more than the questions which a clinician would naturally consider before prescribing or administrating treatment."

63. The inference naturally to be drawn from all of these supporting documents is that the appropriateness test in relation to treatment without consent must address the issues of medical necessity and the likelihood that the treatment will alleviate or prevent deterioration. It cannot however, be said, as the Code does, that this will be achieved by scrupulous adherence to the requirements of the legislation. The Draft Code applies the Convention tests, which are not found in the legislation itself. There are drawbacks in this approach of leaving the issue of Convention compliance to be addressed in the Code, which may be departed from with good reason, rather than in the primary legislation. The language of the Code seems more accurately to reflect Convention case law, than that of the statute. In the light of these factors, we asked the Government why it had chosen to address Convention compliance in the Code rather than in the legislation, and whether consideration would be given to making the "medical necessity" requirements of Articles 3 and 8 explicit on the face of the Bill.

64. The Government response is that medical necessity is only an issue under Article 3, which will only be engaged if the effects of the treatment reach a minimum level of severity that is unlikely to be reached. The Government considers 'that the European Court of Human Rights has not developed an equivalent of 'medical necessity' in relation to Article 8. In the Department's view the relevant test under Article 8(2) is therefore whether the treatment is (i) in accordance with the law; (ii) for a legitimate aim; and (iii) necessary in a democratic society.' Therefore the Government considers that the provisions relating to the administration of treatment are capable of operating compatibly with Articles 3 and 8, independently of the Code.[53]

65. We find the Government's reasoning 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 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 test should be in the legislation rather than in a Code of Practice, which may well only be accessible to professionals.

66. Although an immediate second opinion is required for any administration of Electro Convulsive Therapy (ECT), in relation to medicines for mental disorder, the patient does not become entitled to a second opinion until three months have elapsed from the first time when medicine was administered during that period of detention. The justification for this different treatment was that ECT is seen as a more controversial treatment, and at the time it was felt a three month 'stabilizing period' was necessary to assess the effectiveness of treatment. There is now a recognition that the effects of some psychiatric drugs may be as unacceptable to patients as ECT, and that the likely efficacy of a particular antipsychotic medication may be assessed within one month rather than three.[54] The Mental Health Act Commission Eleventh Biennial Report expresses the view that the 1983 Act provides insufficient protection to patients' Article 8 rights in relation to drug treatment without consent, and an amendment was tabled at Committee Stage in the House of Lords seeking to reduce the three month period to one month.[55] 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.

(8) Forcible Feeding

67. Forcible feeding as a treatment for mental disorder can be given without consent to a detained patient under section 63 of the Mental Health Act 1983 without the need for a statutory second opinion.[56] Given that forcible feeding is potentially a breach of Article 3 and Article 8,[57] and if imposed involves a significant and potentially traumatic invasion of physical integrity, it may be questioned why it is not subject to regulation by the same system of second opinions which applies to Electro Convulsive Therapy under section 58 of the 1983 Act. We therefore asked the Government whether it considered that it was necessary to provide more effective supervision and review of decisions to forcibly feed a patient than is currently provided by section 63 of the 1983 Act.

68. The Government considers that 'While section 58 provides an additional safeguard of a SOAD (Second Opinion Approved Doctor) in relation to certain treatments, there is no requirement in the Convention for a second opinion. With respect to the Committee, the key question is whether the provisions of the Act which provide for the forcible feeding of patients without consent, with or without a second opinion, are compatible with the Convention. The Department considers that they are.'[58]

69. We consider that the positive obligation under Article 8 as elaborated in Storck v Germany[59] requires effective supervision and review of decisions 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.

(9) HL v United Kingdom and the Bournewood Proposals

70. Following the case of In re F[60] in 1989 the English courts have developed the common law jurisdiction to grant declarations that certain actions in respect of incapacitated adults would be lawful as being necessary in the best interests of the person concerned. The common law doctrine of necessity confers a power, and in certain circumstances a duty on doctors to provide treatment which is necessary in a mentally incapacitated patient's best interests. This was extended by the House of Lords in R v Bournewood Community and Mental Health NHS Trust, ex parte L (Secretary of State for Health and others intervening)[61] to confer a power on a doctor to restrain and detain a mentally incapacitated adult if it was necessary in his or her best interests. Bournewood was decided just before the Human Rights Act came into force. An application was made on L's behalf to the Strasbourg Court which held in HL v United Kingdom that, where a compliant incapacitated patient is to be deprived of his liberty, this must be done in accordance with a procedure prescribed by law.

71. HL has autism and profound intellectual disability. He lacked capacity to consent or dissent to being in hospital. He had lived with his carers, the Es, for three years. One day he became agitated and disturbed at a day centre, was given valium, and was taken to the learning disability hospital run by the Bournewood Trust and kept there. His doctor instructed staff that he was to be stopped from leaving if he tried to do so. Although he never did attempt to leave the hospital, his carers, the Es, were prevented from visiting, in case he might want to go home with them. He showed symptoms of abandonment, withdrawing, becoming sad, and losing weight. He was also on higher doses of sedative medication in hospital than were ever necessary in the community. His psychiatrist admitted him under the common law doctrine of necessity, rather than using the powers of detention under the Mental Health Act 1983.

72. The carers challenged the common law detention on the grounds that the procedure prescribed by law, namely using Mental Health Act powers of detention, had not been followed. The House of Lords in Bournewood ruled by a 3-2 majority that HL had not been detained for the purposes of the law of false imprisonment. They also ruled unanimously that there was a power at common law to restrain and detain a mentally incapacitated person in their best interests.

73. The European Court of Human Rights in HL v United Kingdom held that, whatever the position under English law, the removal of HL to the hospital, and his retention there without access to his carers, amounted to a deprivation of liberty under the Convention, and had to be carried out in accordance with a procedure prescribed by law, as required by Article 5(1)(e) of the Convention, Moreover, he was entitled to the opportunity, by himself, or through a proxy, to challenge the lawfulness of that detention under Article 5(4).

74. The Strasbourg Court refused to treat compliant incapacitated patients as on a par with capable patients who were consenting, reaffirming the importance of the right to liberty (para 90):

"The right to liberty in a democratic society is too important for a person to lose the benefit of Convention protection simply because he has given himself up to detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action."

75. The Court emphatically rejected the argument that a compliant incapacitated patient should be treated on the same basis as a capable consenting patient.

76. The ruling in HL v United Kingdom came at a very late stage in the Parliamentary passage of the Mental Capacity Bill. The Mental Capacity Act 2005 currently provides that the power to restrain a person under section 6 does not extend to 'deprivations of liberty.' In order to comply with the ruling in HL v United Kingdom a procedure prescribed by law must be followed when a person is deprived of his or her liberty. A distinction must be made between deprivations of liberty, governed by Article 5, and restrictions on liberty governed by Article 2 of the Fourth Protocol which states that 'Everyone lawfully within the territory shall, within that territory, have the right to liberty of movement and freedom to choose his own residence.' The United Kingdom is not a signatory to Article 2 of the Fourth Protocol. This is a distinction which can be difficult to make in practice.[62]

77. The Strasbourg case law operates on the Guzzardi principle that the starting point in assessing whether there has been a deprivation of liberty is 'the concrete situation' in which the individual is placed and 'account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.'[63] The Court went on to state that 'The difference between deprivation of liberty and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance.' The Court acknowledged in Guzzardi that 'the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion', nevertheless, the court 'cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.'[64]

78. In HL v United Kingdom the Court reiterated the Guzzardi principles, and identified as the key factor 'whether those with care of the patient exercise complete and effective control over his care and movements.' This includes strict control over: assessment, treatment, contacts, including with carers, movement, and residence. A person can still be deprived of his liberty without ever having tried to leave, it is enough that there is an intention to prevent them from leaving should they attempt to do so. Similarly, it is 'not determinative' whether the ward is locked or lockable. It is the intention to prevent the patient leaving which counts. Applying these tests the Court held that (para 91) 'the concrete situation was that the applicant was under continuous supervision and control and was not free to leave.' HL was therefore deprived of his liberty.

79. The Government argument in HL v United Kingdom had relied strongly on the Strasbourg Court's judgment in HM v Switzerland, where it was held that the placing of an elderly applicant in a foster home, to ensure necessary medical care as well as satisfactory living conditions and hygiene, did not amount to a deprivation of liberty. However, in HL the Court held that each case has to be decided on its own particular "range of factors" and, while there were similarities between HL and HM, there are also distinguishing features. In particular, it was not established that HM was legally incapable of expressing a view on her position, she had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay. She was therefore consenting. This combined with a regime entirely different to that applied to the present applicant (the foster home was an open institution which allowed freedom of movement and encouraged contacts with the outside world) allowed the court to conclude that the facts of HM were not of a "degree" or "intensity" sufficiently serious to justify the conclusion that she was detained.

80. Clause 38 of the Bill inserts new sections 4A, 4B and 16A into the Mental Capacity Act 2006. This makes it lawful to deprive a person of their liberty only if a standard or urgent authorisation (under the new Schedules A1 and 1A to the 2005 Act) is in force or the Court of Protection has ordered a deprivation of liberty in deciding a personal welfare matter. Standard or urgent authorisations may be sought after the person has already been deprived of his or her liberty.

81. In HL v United Kingdom the Court made important statements about what is required by a procedure prescribed by law. The Court found striking 'the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted', and noted the significant contrast between the lack of regulation of admissions of compliant incapable patients and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act (Para [120])

82. A number of key ingredients of a procedure prescribed by law were missing in the court's opinion. These were:

a)  The lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions.

b)  There is no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission.

c)  There was no specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention.

d)  There was no provision for the appointment of a representative of a patient who could make certain objections and applications on his or her behalf, a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities (para [120]).

83. The proposed system in the Bill to remedy these defects relies upon the managing authority of the institution depriving the person of their liberty to apply for authorisation.[65] An authorisation may be applied for if the patient is about to be accommodated in circumstances amounting to a deprivation of liberty, or is already being so accommodated. It is not envisaged that there will necessarily be an admission process, but a process of seeking authority to deprive of liberty after admission without consent. In HL v United Kingdom the Court held that the very purpose of procedural safeguards is to protect individuals against any "misjudgments and professional lapses" (Para [121]) There is a possibility that there may be professional misjudgements or lapses in assessing whether someone is deprived of their liberty. There is a right for the person's representative to seek review by the supervisory authority and the representative of the person deprived of their liberty may apply to the Court of Protection to have the authority terminated.[66] Permission is not required for an application to the Court to review a Bournewood authorisation.[67] Article 5(4) requires that access to such review be speedy, and that legal representation be available.[68]

84. JUSTICE has argued that is necessary for 'deprivation of liberty' to be defined in the statute (not the Code of Practice, which may be departed from with good reason[69]) to ensure the following:

i.  the provisions apply to the individuals for whom they are intended (there are dangers to individuals and the public with both over-inclusion and over-exclusion);

ii.  there is certainty in the law, particularly since it is concerned with interference with fundamental rights;

iii.  unnecessary time and costs in the Courts are not expended on arguments about what does and does not amount to a deprivation of liberty within the meaning of the Bill;

iv.  decisions that vitally affect the well-being of incapable persons are not delayed by reason of uncertainty and argument about whether arrangements amount to a deprivation of liberty.[70]

We asked the Government whether it had considered seeking to define deprivation of liberty in the statute, and if so, why it had decided against it. The Government replied that it considered defining deprivation of liberty in the statute, but felt that this was not possible.[71] The Government felt that since the distinction between a restriction on liberty and a deprivation of liberty was a matter of degree rather than substance, it would not be appropriate to define it in the statute. The Government directed us to the draft Illustrative guidance on Bournewood, which notes that the following factors are identified as 'contributing to deprivation of liberty:

  • Restraint was used, including sedation, to admit a person who is resisting;
  • Professionals exercised complete and effective control over care and movement for a significant period;
  • Professionals exercised control over assessments, treatment, contacts and residence;
  • The person would be prevented from leaving if they made a meaningful attempt to do so;
  • A request by carers for the person to be discharged to their care was refused;
  • The person was unable to maintain social contacts because of restrictions placed on access to other people;
  • The person lost autonomy because they were under continuous supervision and control.[72]

86. We consider that deprivation of liberty is a less flexible and elusive concept than might be thought from the draft illustrative guidance. Since we posed this question to the Government, Munby J has delivered judgment in JE and DE v Surrey County Council and EW, holding that the crucial issue in determining whether there is a deprivation of liberty is not so much whether the person's freedom within the institutional setting is curtailed, but rather whether or not the person is free to leave.[73] In this case DE, although lacking decision-making capacity, was clearly expressing his wish to be allowed to live with his wife, even though his wife could not cope without support from social services. In HL v United Kingdom although HL was not expressing a desire to leave, his carers wanted him to come home to live with them. Neither was free to leave. Both were deprived of their liberty. It is not necessary for all the elements identified in the list of factors contributing to a deprivation of liberty to be present. There will be a deprivation of liberty if it is known that a person is to be prevented from leaving the place where they are being taken to reside.

87. We asked the Government whether it was satisfied that the proposed arrangements fully meet the requirements of a procedure prescribed by law as those requirements were explained by the European Court of Human Rights in HL v UK.

88. The Government is satisfied that the arrangements fully meet the requirements as explained in HL v United Kingdom, and that the usual way in which the provisions should be applied is by ensuring that an authorisation is in place before a person is detained. The Government also acknowledges that the Bournewood amendments do not give any additional powers to convey a person to a hospital or care home. The Department does not consider that such powers are needed 'because it is unlikely that such transportation alone would amount to a deprivation of liberty under Article 5. In the rare case where it was only possible to transport a patient to hospital by detaining them then legal authority would be needed such as an order from the Court of Protection.'[74]

89. 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.

90. In HL v United Kingdom the Court held (at para 114) that 'an important ingredient of lawfulness is that all law must be sufficiently precise to allow the citizen - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail.' 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.

91. The Government has indicated in response to amendments tabled at Committee stage in the House of Lords that the principle of means testing will apply to persons deprived of their liberty in residential care homes, who will therefore be liable to charges for the accommodation in which they are detained.[75] 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.

(10) Omissions from the Bill

92. In our scrutiny of the Bill we have considered whether there are any significant omissions, which would have promoted or enhanced human rights. There would appear to be two main omissions.


93. Since the ruling in HL v United Kingdom, the European Court of Human Rights has delivered a further important ruling in Storck v Germany[76] which contains important statements not only about the right to protection against arbitrary detention under Article 5 and but also concerning the right to physical integrity as an aspect of respect for private life under Article 8. The applicant had been admitted at age 15 to a children and young person's unit and spent seven months there in 1974-5. From July 1977 to April 1979 she was placed in a locked ward at a private psychiatric clinic, without any judicial order, as required by German law. She was brought back in March 1979 by police after she escaped. The private clinic was not entitled under German law to receive detained patients.

94. The Court held that there was a positive obligation for the state to take measures to protect the right to liberty under Article 5 and the right to personal integrity under Article 8 against infringements by private persons, and that both Article 5 and Article 8 had been infringed. The Court stated that 'Insofar as the applicant argued that she had been medically treated against her will while detained, the court reiterates that even a minor interference with the physical integrity of an individual must be regarded as an interference with the right of respect for private life if it is carried out against the individual's will.'[77]

95. This statement suggests that the crucial factor in identifying a breach of Article 8 is the fact that the intervention is carried out against the individual's will, in other words that there is some resistance. However, in HL v United Kingdom the Strasbourg Court refused, for the purposes of Article 5, to treat compliant incapacitated patients as on a par with capable patients who were consenting. Reaffirming the importance of the right to liberty, the Court said:

"The right to liberty in a democratic society is too important for a person to lose the benefit of Convention protection simply because they have given themselves up to detention, especially when they are not capable of consenting to, or disagreeing with, the proposed action."[78]

96. The Court emphatically rejected the argument that a compliant incapacitated patient should be treated on the same basis as a capable consenting patient in relation to deprivations of liberty under Article 5. There are strong grounds for believing that the same principle applies to interferences with physical integrity. The right is too important to be lost simply because a person has given themselves up to the intervention, especially if they lack capacity to consent.

97. In our view consideration should therefore 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.

98. It is important also to bear in mind the statement of the scope of the positive obligation under Article 8, as outlined in para 150 of the Judgment in Storck:

150. The Court … considers that on account of its obligation to secure to its citizens the right to physical and moral integrity, the state remained under a duty to exercise supervision and control over private psychiatric institutions. (emphasis added) [The court noted that in the sphere of interferences with a person's physical integrity, German law provided for strong penal sanctions and for liability in tort and went on to say that]. Just as in cases of deprivation of liberty, the Court finds that such retrospective measures alone are not sufficient to provide appropriate protection of the physical integrity of individuals in such a vulnerable position as the applicant. The above findings as to the lack of effective state control over private psychiatric institutions at the relevant time are equally applicable as far as the protection of individuals against infringements of their personal integrity is concerned. The Court therefore concludes that the respondent state failed to comply with its positive obligation to protect the applicant against interferences with her private life as guaranteed by Article 8(1).

99. In the light of this, we asked whether the Government considered that the positive obligation under Article 8 to provide effective supervision and review of interferences with physical integrity was discharged by the Bournewood amendments.

100. The Government's response is that any patients who are deprived of their liberty under a Bournewood authorisation can be treated in accordance with the provisions of the Mental Capacity Act 2005 and the common law.[79]

101. The Mental Capacity Act 2005 and the common law provide a retrospective defence for a person who gives treatment which they reasonably believe to be in a patient's best interests, provided they have taken reasonable steps to assess the person's capacity and reasonably believe the person to lack capacity. As the European Court noted in Storck 'such retrospective measures alone are not sufficient to provide appropriate protection of the physical integrity of individuals.' We therefore remain of the view that effective supervision and review requires more than the common law or the Mental Capacity Act currently provide. The Healthcare Commission's recent investigation into Merton and Sutton learning disability services found many unchecked abuses of the right of physical integrity of service users, including the case of a man who had no speech, sight or hearing who was tied to his bed or wheelchair for up to 16 hours a day.[80] Lord Patel of Bradford tabled an amendment seeking to extend the powers of the Mental Health Act Commission to visit patients subject to a Bournewood authorisation to review the way in which they are being treated.[81] 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.


102. Seclusion is defined in the Code of Practice on the Mental Health Act 1983 as 'the supervised confinement of a patient in a room, which may be locked to protect others from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others.' The Code further prescribes a number of principles that seclusion should only be used as a last resort and for the shortest period possible, a reflection of principles of both common law (necessity) and of the European Convention case law (proportionality).[82] Seclusion is regulated by the Code of Practice, not by law, and the House of Lords held in R (Munjaz) v Mersey Care NHS Trust and others that hospitals are free to depart from the Code if they have a good reason for doing so.[83]

103. In its 2004 report on Deaths in Custody[84] the previous Joint Committee on Human Rights supported the recommendation of the Mental Health Act Commission and called for regulation of seclusion and other forms of restraint. The Mental Health Act Commission has renewed its call for legal regulation in its Eleventh Biennial Report 'not least because of the widespread failure of services to meet the Code's requirements.'[85] In Munjaz, the Court of Appeal considered that seclusion was a potential breach of Article 8, and therefore would require justification in terms of Article 8(2) as being necessary for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[86] The House of Lords held that, assuming Article 8 to be engaged, it was not necessary for seclusion to be regulated by legal rules rather than the 'soft law' Code in order to comply with the requirement in Article 8(2) that 'interferences be in accordance with law.' The Mental Health Act Commission remains of the view that legal regulation is necessary: 'Given that seclusion has potential to infringe Articles 3 and 8 of the ECHR it is essential to meet obligations of Government and Service providers that its implementation is premised upon consistent and predictable standards and that all hospitals employ the same approach.'[87]

104. The Eleventh Biennial Report of the Mental Health Act Commission suggests that the Government may have been prepared to consider legal regulation when the Commission state that 'The Government has informed us that it intends to pursue the statutory regulation of seclusion through the mechanism of the new Mental Health Bill concerned with medical treatment.'[88] The Commission considered that seclusion should not be considered a form of treatment, but should be legally regulated as a management technique. The Strasbourg Court has held in Raninen v Finland that conditions during detention may produce effects on physical or moral integrity which might not reach a level of severity to breach Article 3, but might nevertheless infringe Article 8.[89]

105. Lord Bingham delivered the leading speech in R v Ashworth Hospital ex parte Munjaz. He considered that whilst it was obvious that seclusion improperly implemented could infringe Article 8, seclusion properly implemented and for the shortest period necessary would not. Even if Article 8 were engaged, properly implemented seclusion for the shortest periods necessary would find justification in Article 8(2). Lord Bingham went on to say that the purpose of the requirement in Article 8(2) that interferences with the right to respect for privacy be in accordance with law is 'intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied.' Although compliance with Article 8 could have been achieved by statutory provisions or regulations, 'that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder, a matter on which Mr Gordon places special emphasis, it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable.'[90]

106. Lord Bingham stated that the 'in accordance with law' requirement was directed at substance not form, but it should be remembered that the argument in the House of Lords in Munjaz was directed against the compatibility of Ashworth's policy with the ECHR. Colonel Munjaz did not allege that his Convention rights had been infringed on the occasions he had been secluded. It seems safe to proceed on the assumption adopted by both the European Court in Raninen and the Court of Appeal in Munjaz, but only somewhat reluctantly accepted by Lord Bingham in the House of Lords in Munjaz that Article 8 is potentially engaged in relation to seclusion. Therefore any authorisation of seclusion must be in accordance with law and necessary to meet one of the aims in Article 8(2). The Court of Appeal in Munjaz tried to narrow the grounds on which departure from the Code could be allowed, in the belief that to allow such departures on anything but the most exceptional of grounds would risk infringing the 'in accordance with law requirement' in Article 8. The House of Lords was prepared to sanction departure from the Code for good reason, and accepted that the fact that a hospital was a high security hospital with difficult patients was a good reason.

107. It can be argued that a Code which can be departed from and where the Courts will retrospectively decide whether the departure has been for good reason does not provide the requisite degree of predictability of consequences for those subject to seclusion to comply with Article 8(2). This argument has been rejected by the House of Lords, however. It is less certain whether the Strasbourg Court would follow suit. In Storck v Germany the Strasbourg Court held even a minimum interference with physical integrity would breach Article 8 if carried out against the individual's will[91] and that states were required to provide effective supervision and review of interferences with physical and moral integrity. Retrospective challenge by tort action or criminal proceedings was not enough to meet this requirement.[92] One way of seeking to ensure that seclusion is in accordance with law is to provide a system of regulation by statute, or statutory instrument where the circumstances in which seclusion may be authorised are clearly defined, and the procedures to be followed for its implementation and continuation are clearly set out. [93]

108. We asked the Government whether it had changed its mind about regulating seclusion by law rather than via the Code, and, if a decision had been taken to remain with regulation by Code, what the reasons were for this.

109. The Government's position is that it intends to use the Code of Practice to regulate this important area of human rights practice, and that seclusion will be monitored by the Health and Adult Social Care Commission which will replace the Mental Health Act Commission. The new commission will have a duty to receive information about the use of Mental Health Act powers including the power to seclude.[94]

110. 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.

9   Litwa v Poland (2001) 33 EHRR 53. Back

10   Winterwerp v the Netherlands (1979) 2 EHRR 387Back

11   Ibid., para 39.  Back

12   JUSTICE Mental Health Bill Briefing for House of Lords Second Reading November 2006, para 6. Back

13   (1979) 2 EHRR 387Back

14   Draft Code of Practice, Para 1B.7. Back

15   Appendix 3, para 3.  Back

16   Justice Mental Health Bill Briefing for House of Lords Second Reading November 2006, paras 11-16. Back

17   Appendix 3, para 4. Back

18   HL Deb 8 January 2007, col 44.  Back

19   Appendix 1. Back

20   Ibid. Back

21   Aerts v BelgiumBack

22   See also Koniarska v. the United Kingdom, no. 33670/96, decision of 12 October 2000, unreported. Back

23   Appendix 1. Back

24   Ibid. Back

25   Appendix 3. Back

26   Ibid., para 10. Back

27   Judgment of 5 October 2000. Back

28   Ibid., paras 47 and 48. Back

29   (1994) 22 BMLR 1. Back

30   (1979) 2 EHRR 387 at para 45. Back

31   For a full discussion of this issue see Fennell, P. Medical Law [1995] All England Law Reports Annual Review 354-396 at 383-4. See also Koendjbiharie v The Netherlands (1990) 13 EHRR 820 and Keus v The Netherlands (1990) 13 EHRR 701.  Back

32   Appendix 3, paras 18-22. Back

33   Appendix 5. Back

34   (2000) 30 E.H.R.R CD 77. Back

35   The case was decided before the abolition of the Commission under Protocol 11 to the ECHR. Back

36   JUSTICE Mental Health Bill Briefing for House of Lords Second Reading November 2006, paras 36-38. JUSTICE consider that this is all the more important if the former nearest relative displaced under new s.29(3)(e) MHA 1983 is to have their right of access to the county court to have the order discharged under s.30 MHA 1983 restricted: the effect of new s.30(1A), introduced by clause 22(3) of this Bill. They would also be unable to make an application to the MHRT under s.66 MHA 1983: see clause 23.  Back

37   Appendix 3. Back

38   HL Deb 17 Jan 2007: Column 672. Back

39   Admin Ct 2005 All ER D 57 Jan 13 2005Back

40   R (DR) v Mersey Care NHS Trust [2002] EWHC 1810 (Admin). Back

41   Application 10801/84, Decisions and Reports of the European Commission of Human Rights, Vol 45 pp 181-189 (Decision of 20 January 1986 on admissibility). Report of the Commission (adopted on 3 October 1988). Back

42   Ibid., para 93. Back

43   HL Deb, 17 January 2007 cols 707-8.  Back

44   R (Munjaz) v Mersey Care NHS Trust and others [2005] UKHL 58. Back

45   JUSTICE Mental Health Bill Briefing for House of Lords Second Reading November 2006, para. 46. Back

46   Appendix 3, para 31. Back

47   HL Deb 17 January 2007, Col 748. Back

48   Appendix 3, para 38. Back

49   B v Croydon District Health Authority [1995] 1 All ER 683. Back

50   Draft Code of Practice, para 15.2e.  Back

51   Ibid. Back

52   [2002] EWCA 1789, [2003] 1 WLR 562. Back

53   Appendix 3, paras 50-51. Back

54   National Institute of Clinical Excellence, Guidance on the use of newer (atypical) antipsychotic drugs for the treatment of schizophrenia Technology Appraisal Guidance 43, June 2002. Back

55   HL Deb 15 January 2007, cols 490-495.  Back

56   Re KB [1997] 2 FLR 180. Back

57   Nevmerzhitsky v Ukraine Judgment of 5 April 2005. Back

58   Appendix 3, para 67. Back

59   Judgment of 16 June 2005. Back

60   [1990] 2 AC 1. Back

61   [1998] 3 All E.R. 289. Back

62   R (Gillan) v Metropolitan Police Commissioner [2004] EWCA Civ 1067, para [38], where It was held that a short detainment pursuant to a stop and search power will normally fall outside Article 5. Back

63   Guzzardi v Italy, Judgment of 6 November 1980 para 92. Back

64   Ibid., para 93. Back

65   Para 24 of Schedule A1, Part 4. Back

66   Para 2 of Schedule 8 to the Bill would insert a new s 21A into the Mental Capacity Act 2005. Back

67   Para 9 of Schedule 8 to the Mental Health Bill would insert a new s 50(1)(A) into the Mental Capacity Act 2005.  Back

68   Megyeri v Germany [1992] 15 EHRR 584. Back

69   R (Munjaz) v Mersey Care NHS Trust and others [2005] UKHL 58. Back

70   JUSTICE Mental Health Bill Briefing for House of Lords Second Reading November 2006, para. 49. Back

71   Appendix 3, para 52. Back

72, para 25. Back

73   [2006] EWHC 3459 (Fam). Back

74   Appendix 3, para 56. Back

75   HL Deb 17 January 2007, col 764 (Baroness Ashton of Upholland).  Back

76   Storck v Germany Judgment of 16 June 2005. Back

77   Ibid., para 143. Back

78   HL v United Kingdom (2004) 40 EHRR 761. Back

79   Appendix 3, para 57. Back

80   Referred to by Lord Patel of Bradford, HL Deb 17 January 2007, col 730.  Back

81   Ibid., cols 728-731. Back

82   Department of Health and Welsh Office Mental Health Act Code of Practice (1998), para. 19.16. Back

83   [2005] UKHL 58. Back

84   Third Report of Session 2004-05 Deaths in Custody, HL Paper 15-1, HC 137-1, para 245. Back

85   Mental Health Act Commission, Eleventh Biennial Report 2003-2005 In Place of Fear London TSO 2006, para 4.237. Back

86   [2003] EWCA Civ 1036. Back

87   Mental Health Act Commission, Eleventh Biennial Report 2003-2005 In Place of Fear London TSO 2006, para 4.238. Back

88   Ibid., para 4.240. Back

89   Judgment of 17 December 1997, paras 63-64. Back

90   [2005] UKHL 58, para 34. Back

91   Storck v Germany Judgment of 16 June 2005, para 139. Back

92   Ibid., para 150. Back

93   The Mental Deficiency Regulations 1948 S.I. 1948 No 1000 provided a rudimentary means of regulating seclusion. The regulations defined seclusion and required recording in a register of seclusion or mechanical restraint of each instance, its duration, and the reasons for its implementation. This would then be inspected by the Board of Control on their visits to institutions.  Back

94   Appendix 3, paras 61-62. Back

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