The Joint Committee on Human Rights has agreed to the following Report:
DRAFT MENTAL HEALTH BILL
I. The Background to the Draft Bill and the Committee's Report
- The Draft Mental Health Bill was published by the Department of Health in June 2002, accompanied by Explanatory Notes and a consultation paper. The Explanatory Notes contain a partial regulatory impact assessment (RIA) of the draft Bill's proposals; a fuller RIA is now available on the Department of Health Website.
- The draft Bill builds on a series of earlier reports and consultations. In 1998, the Department established an independent committee, chaired by Professor Genevra Richardson of Queen Mary and Westfield College, London, to review mental health law and to consider what changes were needed. Its report, published by the Department in November 1999, provided a basis for a Green Paper and, after consultation, a White Paper.
- In the period between the passing of the Mental Health Act 1983 and the publication of the draft Bill, a number of concerns have been raised about both the capacity of the arrangements under the 1983 Act to meet human rights requirements and the adequacy of the powers under the Act to protect people against violence inflicted by people suffering from mental disorders. Examples of human rights concerns include
whether the decision-making process for releasing compulsorily detained patients, including particularly those detained following conviction of a criminal offence, are sufficiently independent of the executive to satisfy the requirements of Article 5 of the ECHR for protection against arbitrary detention;
whether people who could and should be released from compulsory detention are being further detained because of a shortage of appropriate facilities for them in the community;
whether the provisions of the 1983 Act should be amended to allow people to be detained if they present a serious risk to others, even if they could not be given any effective treatment for their condition.
- We began our consideration of the draft Bill before the summer recess. In view of the complexity of the issues raised, we invited individuals and organisations to submit evidence on the human rights implications of the draft Bill. We are grateful to all those who made submissions. As the Department's consultation period on the draft Bill was due to end before we were going to be able to publish our report, our Chairman wrote to the Minister of State at the Department of Health (Jacqui Smith MP) on 1 October 2002 giving a personal view of the main matters which seemed likely, at that stage, to be discussed when we reported. On 24 October, the Minister replied, helpfully explaining the Government's thinking on the issues raised in our Chairman's letter. We are very grateful for the Minister's positive and considered response, and are glad to have had the opportunity to take account of it when preparing this Report.
- We start from the proposition that mental health patients are a particularly vulnerable group. Their dignity and autonomy, and their related human rights including their liberty and physical integrity, are specifically threatened by a regime of compulsory assessment, treatment and detention. Compared with most other people, they are less likely to be able to take action to protect their own rights. Because of this, they therefore depend heavily on other people to provide proper safeguards, and on legislation to ensure that those safeguards will be in place. In the past, the arrangements under the Mental Health Act 1983 and, before that and to an even greater extent, under the Mental Health Act 1959 have led to violations of patients' rights under the European Convention on Human Rights in a number of respects. We have therefore subjected the human rights implications of the proposals in the draft Bill to careful examination.
- The Report considers those human rights implications, and makes recommendations. Section II briefly outlines the purposes of the draft Bill. Section III gives a short account of the various rights which may be affected by the draft Bill. Section IV of the Report provides an outline of the provisions of the Bill, and assesses the risk potentially created by a number of key provisions. The main conclusions are summarised in Section V.
1 Draft Mental Health Bill, Cm. 5538-I (London: The Stationery Office, 2002) Back
2 Draft Mental Health Bill Explanatory Notes, Cm. 5538-II (London: The Stationery Office, 2002) Back
3 Draft Mental Health Bill Consultation Document, Cm. 5538-III (London: The Stationery Office, 2002) Back
4 Cm. 5538-II, Annex A, pp. 67-78 Back
5 www.doh.gov.uk/mentalhealth Back
6 Review of the Mental Health Act: Report of the Expert Committee (London: Department of Health, 1999) Back
7 Reform of the Mental Health Act 1983-Proposals for Consultation, Cm. 4480 (London: The Stationery Office, 2000) Back
8 Reforming the Mental Health Act, Cm. 5016 (London: The Stationery Office, December 2000) Back
9 Submissions are published as Appendices to this Report Back
10 The correspondence is published as Appendices 12 and 13 to this Report, Ev pp. 10-15 Back