Joint Committee On Human Rights Appendices to the Minutes of Evidence

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 Biennial Report,[69] laid before Parliament on 3 December 2001. I make a number of references to this document in my reply. I am also enclosing (at Appendix A)[70] 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 B[71] are some examples of query responses as requested at question 6.


  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.[72] 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 demonstrates:

    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 or obligation.

  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 Biennial Report).


  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.


Questions 1-4

  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 your report.

  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.

Questions 5-6

  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 been arranged.

  (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

  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.

Question 7

  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 not applicable.

29 April 2002

69   Mental Health Act Commission's Ninth Biennial Report, not printed here. Back

70   Appendix A, not printed here. Back

71   Appendix B, not printed here. Back

72   See The Commission's own activities and human rights legislation below. Back

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