Joint Committee On Human Rights Appendices to the Minutes of Evidence


Annex: Required information relating to the Remedial Order made on 18 November 2001

(Paragraph 4(1) of Schedule 2 to the Human Rights Act 1998)

A.   An explanation of the incompatibility which the order (or proposed order) seeks to remove, including any particulars of the relevant declaration, finding or order

  An explanation of the incompatibility which the proposed order seeks to remove is encompassed in the text of the declaration of incompatibility made on 4 April 2001 in the case of The Queen on the application of H v Mental Health Review Tribunal North & East London Region (Secretary of State for Health Intervening). The declaration reads as follows:

    "A declaration under section 4 of the Human Rights Act 1998 that sections 72(1) and 73(1) of the Mental Health Act 1983 are incompatible with Articles 5(1) and 5(4) of the European Convention of Human Rights in that, for the Mental Health Review Tribunal to be obliged to order a patient's discharge, the burden is placed upon the patient to prove that the criteria justifying his detention in hospital for treatment no longer exist; and that Articles 5(1) and 5(4) require the Tribunal to be positively satisfied that all the criteria justifying the patient's detention in hospital for treatment continue to exist before refusing a patient's discharge.".

B.   A statement of the reasons for proceeding under section 10 and for making an order in those terms

  The underlying issue is one of personal liberty. The incompatibility raises the prospect that patients detained by the State under the Mental Health Act 1983 may continue to be detained even though a decision by the Mental Health Review Tribunal not to discharge them is incompatible with their Convention rights.

  The use of remedial action under section 10 of the Human Rights Act 1998 will ensure that the incompatibility is remedied quickly. Although new legislation is planned which would remove the incompatible provisions, there is no set timetable for introduction of a Bill at this stage.

  The fact that personal liberty is at stake and that reform will not otherwise take place in the near future are compelling reasons for proceeding under section 10 of the Human Rights Act 1998.


 
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Prepared 19 December 2001