denotes premium content | Jan 9 2009 Feature
posted 17 May 2001 in Volume 6 Issue 4
Mental health and the Human Rights Act: the story so far
By Simon Foster, MINDBefore the Human Rights Act came into force in October 2000, many of those who contacted Mind believed that it would be capable of rectifying all their complaints against the existing 1983 Mental Health Act (MHA). Having studied the Strasbourg jurisprudence we were rather more tentative- rightly so, if the first six months of the new regime is anything to go by. Judges have made it clear that they will be impatient with applicants citing European Convention points when there is no triable issue. Moreover, as the first decided cases in mental health seem to indicate, they are unwilling to find legislation incompatible with the Convention rights unless they have absolutely no alternative (see below). This is disappointing, considering the manifest shortcomings in the Mental Health Act agreed by the Government in its recent White Paper, but not surprising. The judiciary is understandably anxious not to give the appearance of usurping the legislative function and thus giving fuel to the more apocalyptic writers on the Daily Mail and elsewhere. This article considers the story so far.
Areas of challenge since the Human Rights Act
There are three main areas of potential challenge under the European Convention. The first is the detention and discharge of patients, which is governed by Article 5. The second is the matter of forced treatment, particularly where it involves high levels of medication or electro-convulsive therapy (ECT): at what stage does this engage Article 3, which prohibits not only torture but also ‘inhuman or degrading treatment’? The third concerns the right of patients to keep their private life free from interference under Article 8: how should this right be limited for those who are being cared for therapeutically, rather than being punished?
Detention and discharge: Article 5
Article 5 provides:
(1) ‘Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …
(e) The lawful detention of… persons of unsound mind…
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’
The European Court of Human Rights in Strasbourg has given guidance on the application of Article 5(1)(e) in its decided cases, particularly in Winterwerp v Netherlands (1979) 2 EHRR 387. This laid down the following principles:
(i) The mental disorder must be established by objective medical evidence, i.e. it is not a matter for judicial discretion.
(ii) The disorder must be of a nature or degree which warrants detention (as in ss.2 & 3 of the MHA 1983).
(iii) The patient must be discharged as soon as the mental disorder no longer meets criterion (ii). The court has made it clear [see Johnson v UK(1999)27 EHRR 296] that instantaneous discharge would not be in the interests of the patient or of society; the patient may continue to be detained for a period before discharge to enable the authorities to make suitable arrangements for his or her rehabilitation into the community. However, this further period is not open-ended: a few months may be justifiable, but 3 ½ years in Stanley Johnson’s case was certainly not.
(iv) Detention under Article 5 is not strictly connected to treatability. However, if no treatment is available it may call into question the lawfulness of a detention expressly for the purpose of Article 5(1)(e).
As matters stand under the MHA- though the White Paper proposes to alter this- compulsory admission to hospital is an administrative act, generally performed by an approved social worker on the recommendation of two doctors, one of whom must be approved under s.12 of the MHA. The treating psychiatrist also has the power- indeed the legal duty- to discharge the patient from detention at the point when he or she no longer meets the criteria (s.23(2)(a) MHA). A mental health review tribunal, which is a ‘court’ for the purposes of the Convention, also has powers to discharge patients upon application, if necessary against the recommendation of the consultant psychiatrist. To satisfy Article 5(4) the tribunal must be capable of a ‘speedy decision’ on an application for discharge.
So what happens if a tribunal discharges a patient who is then promptly ‘resectioned’ by the clinical team? There is nothing in the Mental Health Act to prevent such a thing from happening, as was confirmed in the case of R v South Western Hospital Managers ex parte M (1993)QB 683. In that case Laws J declared there was no requirement that patient should undergo a change of circumstances before being detained again; the decision to admit under compulsion had no legal connection to the tribunal’s decision to discharge. On the face of it, then, an executive act can in effect overrule the decision of a judicial body.
Not surprisingly this area is one which mental health lawyers wanted to test under the Human Rights Act. They did so in the case of R (Brandenburg) v East London & The City Mental Health NHS Trust and another (2001) TheTimes, 28th February. Count Franz von Brandenburg, a patient detained under section 3 MHA, was given an absolute discharge by a mental health review tribunal against the recommendation of his psychiatrist. The discharge was deferred for seven days in accordance with s.72(3) MHA to allow the necessary arrangements for him in the community. On day 6 an approved social worker, supported by his consultant and another doctor, made a further application for his detention under section 3. There was no suggestion at that time that his condition had deteriorated between tribunal and application (though the hospital subsequently gave evidence that there had in fact been some deterioration).
In June 2000 Count von Brandenburg sought judicial review of the further attempt to detain him. The judge at first instance told his counsel that he had no discretion to consider the application because he was bound by South Western Managers; if he was to succeed it would be necessary for that precedent to be overturned under the Human Rights Act. Count von Brandenburg therefore appealed on the point of principle, namely that the power of the clinical team to detain someone who had been discharged by a legally-constituted tribunal violated his rights under Article 5(4).
The Court of Appeal, in a reserved judgment given on 21st February 2001, unanimously dismissed the appeal. The ratio of the case is not as clear as it might be because of the differing reasons given by the judges. However, they all agreed that discharge by a tribunal did not preclude the exercise of clinical judgement as to a further detention which, they said, was not in itself incompatible with Article 5(4). However, the tribunal decision was a factor which must be taken into account by the clinical team when considering whether to apply for a further period of detention. In any given case, therefore, it is open to the patient to argue that his or her detention was irrational and unjustified according to the Winterwerp criteria, and the closer the application is to the tribunal date the stronger this argument will be.
The outcome of Brandenburg is not satisfactory. Article 5(4) was designed as a safeguard against the power of the executive to overrule a court of law. This judgment leaves the exercise of executive power untouched, which is prima facie in violation of the applicant’s Article 5 rights.
The Court of Appeal may have been influenced by the need to allow the ASW and medical team the scope to make rapid clinical decisions as to the necessity of admission, as provided for under the MHA. Any ruling against the Trust would risk preventing such admissions even when they were plainly necessary, because they are too close in time to discharge. However, a situation such as the above surely calls for the exercise of the power given to the higher courts under s.4(2) of the Human Rights Act to make a ‘declaration of incompatibility’: it is then up to the Government to make the necessary legislative changes to bring UK law back into line with the European Convention. One possible change here, for example, could have been to require an ASW to seek urgent judicial approval for further detention within a specified period of discharge. In any event, it is for judges to declare the law, not to find solutions, and it is disappointing that the Court of Appeal in Brandenburg was reluctant to state in clear terms that ‘executive detention’ violates the principle of Article 5(4).
The Court of Appeal heard a second mental health case on Article 5(4) and mental health review tribunals at the same time [R(K) v Camden & Islington Health Authority (2001) The Times, 15th March]. Once again they reserved judgment until 21st February. In this case the appellant, who was a ‘restricted patient’ under sections 37 & 41 Mental Health Act, was not considered appropriate for absolute discharge. However, it was agreed that she did not need to remain in hospital but could move towards rehabilitation in the community. Unfortunately opinions differed as to where she could most safely live: her consultant wanted her to go into a hostel, but Ms K put forward evidence that she should go back home. The tribunal followed Ms K’s preference and ordered a conditional discharge to her home- the condition being that she should be supervised by a consultant psychiatrist. Ms K’s own consultant refused to do so, on the grounds that it was too far away. The Health Authority accepted that it had a duty to do its best to find a psychiatrist who was willing to implement the conditions of discharge, and contacted a number of forensic psychiatrists within reasonable distance of Ms K’s home. None of them was willing to supervise her. The Health Authority therefore informed the tribunal that it was simply not able to implement the discharge conditions.
Ms K had by this time been detained for some eighteen months beyond the tribunal which had conditionally discharged her. She applied for judicial review of the Health Authority’s failure to fulfil her discharge conditions. This was turned down at first instance in June 2000; she appealed, citing additional arguments under Article 5(4), to the effect that the Health Authority’s failure to find a psychiatrist to supervise her had frustrated the tribunal’s decision and thus violated her rights under Article 5(4).
The Court of Appeal rejected this. They said that the Health Authority had done what it could to fulfil the conditions, and could not be expected to produce a psychiatrist where none would come forward. Conditions set down by a tribunal did not impose an absolute duty upon a statutory body to implement discharge conditions [see R v Mental Health Review Tribunal and others ex parte Hall (1999) 3 All ER 132], but only a requirement to take ‘reasonable steps’. In any event, Article 5(4) could not be used against the Health Authority itself but only against the tribunal, which was not at fault here.
So far so bad for patients. However, the recent case of R (H) v Mental Health Tribunal, North & East London Region (2001) The Times, 28th March shows what the courts can do when they are satisfied it is right to exercise their powers under the Human Rights Act. The appellant, a restricted patient under ss.37 & 41 Mental Health Act, had been rejected for discharge by a tribunal. He sought judicial review, citing inter alia arguments under Article 5(1) & (4). In September 2000 the application was dismissed at first instance. In December 2000 he was granted permission to appeal on the Article 5 points. The appeal was therefore heard on the narrow issue of whether section 73 MHA was compatible with the European Convention.
Section 73 relates to the procedure before a mental health review tribunal. This states, with regard to a restricted patient: ‘…a tribunal must direct the absolute discharge of the patient if satisfied-
(a) as to the matters mentioned in paragraph (b)(i) or (ii) of section 72(1) above; and
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.’
Section 72(1)(b) states: ‘The tribunal shall direct the absolute discharge of a patient liable to be detained otherwise than under section 2 above if they are satisfied-
(i) that he is not then suffering from a mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment…’
The effect is that the patient has the burden of proving that he or she should not continue to be detained, rather than the hospital having to justify further detention. although this is not stated explicitly on the face of the legislation. The parties agreed that, if this were the case, it would not be compatible with Article 5(1) of the Convention as discussed in Winterwerp.
The Court of Appeal accepted that the decision of the House of Lords in Reid v Secretary of State for Scotland (1999) 2 AC 513 meant that the criteria for discharge must mirror those at admission. If any of the admission criteria was no longer made out the patient was entitled to discharge. That being so, they could not interpret ss.72 and 73 in a way which was compatible with Article 5. They therefore granted a declaration of incompatibility.
The effect of such a declaration is not, of course, to change the law. Instead the matter is referred back to the Government under s.10(1) HRA, to consider ‘fast-tracking’ amending legislation by executive order to overcome the incompatibility. They may not want to do so, as they are already preparing a radical overhaul of the Mental Health Act. Similarly the Government’s tacit admission in the Strasbourg case of JT v UK (2000) 1 FLR 909 that section 26 of the MHA, which does not let a patient change his or her ‘nearest relative’, was not compatible with Article 8 has not yet led to an amendment- indeed, the White Paper does not address the incompatibility at all. So it may well be that, if the Government drags its collective feet on this point also, further cases will be brought and may have to go to Strasbourg for a ruling. Given that the change required under Re H is a relatively easy one to make, let us hope that the law is properly amended in advance of a new Bill, which is still several months away.
One further case under Article 5: R (C) v Mental Health Review Tribunal (2001), unreported, concerns waiting times for a tribunal hearing. In this case Mr C, who was detained under section 3 MHA, applied for a tribunal hearing. This was not listed for some eight weeks, in accordance with the Department of Health guidance on listing times. Mr C claimed that this violated his right to a ‘speedy decision’ under Article 5(4): he said that a delay of no more than two weeks was appropriate. He cited the Strasbourg case of E v Norway (1994) 17 EHRR 30, which suggested two weeks was an appropriate length of time to wait in a similar situation. The High Court rejected this, holding that an eight-week delay was not contrary to Article 5(4). The case will be heard on appeal in early July.
Inhuman and degrading treatment: Article 3
It is sometimes suggested that the imposition of any form of compulsory treatment upon patients with full capacity, as permitted under ss. 56 - 63 MHA, violates Article 3 because of the indignity involved. This argument is not likely to succeed under the present medico-legal system, in the UK or Europe. However, there may be more force in the proposition that treatment which brings about severe side-effects, particularly where these arise from overmedication or ‘polypharmacy' (‘medication cocktails’), could be open to challenge.
So far the point has not been tested in the UK courts under the Human Rights Act. However, the Strasbourg jurisprudence is not encouraging. In Grare v France (1992) 15 EHRR 437 the applicant claimed to have experienced unpleasant side-effects from his medication; the ECtHR ruled that these were not sufficiently severe to constitute a violation of Article 3. The following year, in the case of Herczegfalvy v Austria (1993) 15 EHRR 437, the Court ruled that handcuffing a patient to the bed was not a violation either, because ‘measures taken out of therapeutic necessity cannot be regarded as inhuman or degrading treatment’.
These decisions would seem to reflect the view at Strasbourg that the clinical judgement of a psychiatrist should be supported unless it is clearly untenable. However, on the face of it a test of ‘therapeutic necessity’ sets a higher threshold than the Bolam test at common law. Moreover, the Convention is a ‘living instrument’; as attitudes change, so decisions which were acceptable at the time become no longer acceptable- witness the changed attitude in Germany to compulsory ECT. So it may well be that, given the closer scrutiny to which doctors are routinely subjected today, a case such as Herczegfalvy- or even Grare- would be reconsidered if it came before a UK court today.
In the meantime Article 3 continues to have effect in such matters as the tying of patients to chairs (which is also prohibited under the Mental Health Act Code of Practice) and the forced removal of vulnerable residents from a care home, which formed the subject of a HRA application against Brighton & Hove Council last year.
Interference with private life: Article 8
This Article has the greatest scope of all to alter practice for mental health patients (and everyone else). It was raised (unsuccessfully) in a case where a patient in high security hospital has challenged the restrictions on children’s visits imposed following the Ashworth Inquiry [R v Secretary of State for Health ex parte Lally (2000) The Times 26th October]. Another high security patient has claimed that monitoring his private telephone calls violates his Article 8 rights. Whenever issues of confidentiality are in dispute, Article 8 is likely to be invoked.
The issue of ‘suicide watches’ gives rise to an interesting dilemma. Article 2 states that everyone has the right to life. In the light of the recent case of Reeves v Commissioner of Police (1999) 3 WLR 363 it is likely that a hospital, like a prison, has a positive duty to preserve life by preventing suicide. But if a hospital patient, who is feeling particularly distressed, confides to a counsellor employed at the hospital that he or she is feeling suicidal, how does the counsellor square the duty under Article 2 with the duty to preserve confidentiality under Article 8? The matter has yet to be tested, but common sense would suggest that there should be clear guidelines on when confidentiality should be breached, as already obtain for doctors and nurses.
The most interesting case under Article 8- and one of significance to all those working in community care- is inching its way through the court at Strasbourg. In 1993 Christopher Clunis, a patient supposedly in receipt of aftercare under s.117 MHA, attacked and killed Jonathan Zito at Finsbury Park station. Mr Clunis was sent to Broadmoor under ss. 37 & 41 MHA. There was evidence that his deteriorating mental health state had been reported to the statutory authorities but that no action had been taken. In 1997 Mr Clunis sued Camden & Islington Health Authority, claiming that they were in breach of their duty towards him: if they had provided him with the aftercare to which he was entitled under s.117 he would not have carried out the attack and so not have lost his liberty. The Court of Appeal rejected this claim, on three grounds. First, s.117 creates a general duty but does not give rise to an enforceable private law right to any individual. Second, there was provision under the Mental Health Act for Mr Clunis to take his complaint to the Secretary of State, which should have been used as an alternative to legal proceedings. Third, Mr Clunis had been found fit to plead and had been convicted by a court, so it was contrary to public policy for him to recover damages from his crime under the doctrine of ex turpi causa.
Mr Clunis has now taken his case to the European Court of Human Rights, claiming that the failure to provide him with the services which he plainly needed in the community, resulting in his eventual detention, amounted to a breach of his Article 8 rights. The Court has yet to rule on admissibility (i.e. whether this is capable of constituting a breach of Convention rights). If the complaint is declared admissible, it has the potential for widespread impact upon statutory service providers who are not delivering the support which, by an objective assessment, an individual clearly needs to remain safely at home. This may go some way towards establishing an enforceable right to services for which Mind and other organisations have long campaigned.
Conclusion
These are early days for the Human Rights Act. It is natural that judges will be slow to upset established legal traditions. However, there is no doubt that the Act will significantly alter the legal landscape in mental health, as it has done already in other areas of law.
Simon Foster
Principal SolicitorMind (National Association of Mental Health)
