62. Memorandum from the Mental
Health Act Commission
I am writing in response to the letter of your
colleague, Paul Evans, dated 23 March 2002 and addressed to the
Mental Health Act Commission Chairman.
Before dealing with your questions, I have set
out below some introductory paragraphs about the role of the Commission
and its view of the close connection between the totality of its
work and "human rights".
In order to provide context to my response I
am enclosing a copy of the Mental Health Act Commission's Ninth
laid before Parliament on 3 December 2001. I make a number of
references to this document in my reply. I am also enclosing (at
a copy of the Mental Health Act Commission's internal guidance
Impact of the Human Rights Act 1998 on the work of the Mental
Health Act Commissioners, circulated in August 2000. At Appendix
are some examples of query responses as requested at question
The Mental Health Act Commission (the Commission)
is primarily a monitoring body whose focus is the application
of the powers and duties of the Mental Health Act 1983 (the Act),
although it also has responsibility for the operation of some
of those powers itself.
The core remit of the Commission is "to keep under review
the exercise of the powers and discharge of the duties conferred
or imposed by the Act" as it relates to the detention of
patients for psychiatric assessment or treatment (s. 120(1)).
The Commission views its role as safeguarding the interests of
detained patients. It seeks to ensure that the powers and duties
of the Act are used properly and fairly, and that the care and
treatment of detained patients is as good as it can be.
The Commission is not an inspectorate and it
does not "assess" the performance of public bodies in
the sense implied by the questions set out in Mr Evans' letter
of 21 March 2002. Nevertheless, a rolling programme of visits
to hospitals that detain patients and meetings with such patients
is central to the Commission's function, and the Commission does
produce reports of its visits, including recommendations for remedial
action in areas found wanting (see example, page 5 of this letter).
Chapter 8 of the Commission's Ninth Biennial Report explains this
in more detail.
The Commission thus uses its knowledge and experience
gained in visiting to make comments and recommendations to service
commissioners and providers, and monitors the action taken on
those recommendations. However, the Commission does encourage
service providers to develop their own systems of performance
management, as the following extract from our Ninth Biennial Report
Where good systems are in place and well understood,
managers and staff are better able to work together in the interests
of the patients. Those who can demonstrate by regular monitoring
of such systems that they are implementing the provisions of the
existing legislation are far less likely to come into conflict
either with regulatory bodies or with the provisions of the Human
Rights Act. The less time that managers spend in responding to
criticisms of their service, the more they have to spend in ensuring
that the services for which they are responsible are properly
delivered. Good management enhances the confidence of staff and
frees them to spend more time with patients.
(MHAC Ninth Biennial Report, paragraph 9.12)
The Commission's focus on effective systems
of self-regulation should enable hospitals and other public authorities
who use the Mental Health Act to assess their own performance
of the powers and duties under that Act. Future Commission visits
will include checks on such self-reporting.
The powers of detention and compulsion provided
by the Mental Health Act 1983 are, of course, a fundamental interference
with the human rights of those made subject to the Act. The Commission
has always understood that, consequent in part to the fact that
the UK was a party to the European Convention of Human Rights
before the passing of the 1983 Mental Health Act, it has always
been incumbent on public authorities to operate that Act in accordance
with human rights obligations. The Commission took the view that
the coming into force of the Human Rights Act 1998 threw into
sharper focus the need to double-check the operation of particular
powers against the Convention rights, but created no new duty
The Commission encourages a view of the ECHR
as the reinforcing principles of the existing powers and duties
provided by the Mental Health Act 1983 and described within its
Code of Practice. The Commission takes the view that misuse or
mismanagement of many of the powers of compulsion and treatment
provided by the Act, or failures to meet the duties provided by
the Act, are likely in themselves to constitute a potential breach
of patients' rights under the ECHR.
It has been the case, of course, that the enabling
of individuals to take ECHR-related proceedings to domestic courts
by the Human Rights Act 1998 has led to a body of domestic case-law
determining the interpretation of the Mental Health Act according
to ECHR principles. As the body charged with monitoring the use
of the Mental Health Act by public authorities, the Commission
has sought to ensure that services are aware of such case-law
and have taken account of it in practice. The Commission has also
sought to draw the Government's attention to areas of the Mental
Health Act that could be vulnerable to challenge under ECHR principles
(see, for example, paragraph 2.53 et seq. of the Ninth
The Commission also administers some of the
safeguards provided by the Act for such patients, such as the
statutory Second Opinion service (Mental Health Act 1983 s. 121(2)),
or the review of decisions to withhold patients' mail in specific
circumstances (s. 121(7)). In the former example the Commission
operates as a public authority in the appointment, monitoring
and guidance of doctors who provide statutory authority for the
imposition of certain treatments in particular circumstances.
In the latter example the Commission acts as a quasi-judicial
body, in that it undertakes de novo reviews of decisions
by another public authority (High Security Hospital Managers)
where those decisions are appealed against by the person/s subject
to those decisions.
The Commission is acutely aware that, in undertaking
all of its various roles (not just those described above) it operates
as a public authority and must comply with the requirements and
the spirit of the ECHR. However, it also recognises the likelihood
of human rights-based legal challenges in relation to activities
such as those described above, where the Commission operates as
a part of the system that determines detained patients' rights.
In the last two years the Commission has been
party to a number of judicial review challenges to the provisions
of the Mental Health Act 1983 relating to consent to treatment
and statutory second opinions.
1. Does compliance with human rights
form one of the criteria by reference to which you assess the
performance of public authorities with which you deal?
2. Does the establishment of a culture
of human rights, including inculcating recognition amongst staff
of the administrative and public-service benefits of establishing
a human rights culture, form one of the criteria by reference
to which you assess the performance of the public authorities
with which you deal?
3. If the answer to question 1 or question
2 is "yes", please explain the way in which your inspection
of a public authority establishes and takes account of relevant
matters, and the way in which your assessment is reflected in
4. Do you maintain any records of the
performance of the public authorities with which you deal in (a)
complying with human rights requirements and/or (b) establishing
a human rights culture within their organisations? If so, are
there any general or particular lessons which you feel would be
worth bringing to the attention of the Committee?
In the introduction to this letter we have explained
how we understand issues of "human rights" to be bound
inextricably with issues relating to the proper use of the Mental
Health Act 1983. To this extent, insofar as the Commission's work
is concerned with monitoring public authorities' operation of
the Act we consider it to be concerned with human rights issues.
Given that the area within which the Mental Health Act 1983 is
relevant (ie the detention and compulsory treatment of psychiatric
patients), neither the Commission nor the hospitals that it visits
can afford not to have a human-rights culture, and the Commission's
work in promoting the proper use of the Act relies on it underlining
the importance of such a culture. We do not, however, undertake
formal assessments of the performance of public bodies.
The Commission has a responsibility to submit
proposals to the Secretary of State on the content and revision
of the Mental Health Act Code of Practice. It has interpreted
this role to imply that matters of particular attention should
be brought to the Secretary of State's attention, and to this
end regular contact is made between the Commission and its Department
of Health liaison branch over issues of concern. Matters of concern
are raised formally through the Commission's Biennial Reports.
One such example involving human rights legislation is reported
at paragraph 2.53 et seq of the Commission's Ninth Biennial
Report. The Commission would be pleased to address any specific
questions that the Committee wishes to put to it regarding human
rights and the Mental Health Act 1983.
5. Do you offer advice and assistance
about (a) compliance with human rights, and/or (b) establishing
a human rights culture among staff, to public authorities with
which you deal?
6. If the answer to either part of question
5 is "yes", do you offer that advice (a) proactively
or only in response to a request from the authority or a perceived
difficulty or shortcoming, and (b) continuously or only at the
time of periodic inspections or reviews? Please provide examples
of your practice if possible.
The Commission provides help and advice on the
Mental Health Act, the Code of Practice and human rights both
pro-actively and reactively, as a part of its visiting activity
and outside of that activity.
On its visits to hospitals, and in the reports
subsequent to such visits, the Commission raises numerous issues
relating to the operation of the Mental Health Act 1983. In some
instances such issues will be raised with specific reference to
human rights and the European Convention, although it is the Commission's
view that human rights issues underlie almost all of the matters
that pertain to the operation of the Act, whether the Articles
of the ECHR are invoked or not. An example of the sort of inclusion
within a Commission visit report that might specifically raise
human rights legislation is as follows:
Commissioners noted that telephone conversations
between Patient X and his mother had been recorded and transcribed.
They also noted that restrictions on contact between him and his
parents were allowed under section 34 of the Children Act 1989
but it was unclear whether this extended to taping their phone-calls
or whether they had given their permission for this to happen.
Patient X's consultant had begun a correspondence with his solicitor
about this difficult medico-legal issue and staff were concerned
that this practice might be in breach of article 8 of the ECHR.
Staff told Commissioners that they had not yet
had training in the Human Rights Act and its implications for
the care of detained children. Commissioners recommend that the
Act is included in the unit's training plan if this has not already
(Extract from a Mental Health Act Commission
Visit Report, 6 March 2002)
The Commission's Secretariat provides help and informal
advice to services and patients upon request, utilising the expertise
of Commissioners where appropriate. We estimate that, annually,
we deal with some 2000 such queries by telephone and 400 by letter.
The Commission also publishes advice and guidance
on aspects of the implementation of the Act where it feels that
additional guidance would be helpful for practitioners (Guidance
Notes available from www.mhac.trent.nhs.uk).
The Commission also offers training to service
providers on the implementation of the Act and the Mental Health
Act Code of Practice, which includes material on human rights
and mental health legislation.
7. If you do not currently (a) use human
rights as one of your assessment criteria, and/or (b) offer advice
on human rights matters to the public authorities with which you
deal, do you have any plan to do so in the future?
We consider that the above makes this question
29 April 2002
69 Mental Health Act Commission's Ninth Biennial
Report, not printed here. Back
Appendix A, not printed here. Back
Appendix B, not printed here. Back
See The Commission's own activities and human rights legislation