Joint Committee On Human Rights First Report


9. LETTER FROM THE CHAIRMAN TO RT HON ALAN MILBURN MP, SECRETARY OF STATE, DEPARTMENT FOR HEALTH

COMMUNITY CARE (DELAYED DISCHARGES ETC.) BILL

The Committee is considering whether to report to each House on the above Bill. It has carried out an initial examination of this Bill, and has formed the provisional opinion that the Bill is compatible with relevant human rights obligations. The Committee would, however, be grateful for your comments on the following point raised by its Legal Adviser. Our starting­point is of course the statement made under s.19(1)(a) of the Human Rights Act 1998; but I should make it clear that the Committee's remit extends to human rights in a broad sense, not just the Convention rights under the Act.

The Explanatory Notes to the Bill, para. 10, state:

    In the first instance it is intended that the prescribed type will be acute or geriatric care provided in a general and acute hospital. The types of care may later be extended to other sectors, such as mental health or intermediate care, as appropriate.

The Committee is aware that there may be cases in which people being compulsorily treated for mental disorders in hospital could be discharged if appropriate community care were available, but social services departments are unable or unwilling to provide that care. There is an analogous problem in relation to the provision of aftercare by local health authorities under section 117 of the Mental Health Act 1983 where the doctors in the local health authority disagree with a decision of the Mental Health Review Tribunal or are unable to make resources available. As a result, people have continued to be detained in hospital when there was no medical justification. Under the Human Rights Act 1998, the Court of Appeal has highlighted the difficulty in pinpointing responsibility for such continued detention and giving an appropriate remedy, since the duty to provide community care under section 117 of the Mental Health Act 1983 has been interpreted as being an obligation merely to take reasonable steps to satisfy conditions for release imposed by the MHRT, taking account of other demands on the local authority's resources: see R. (K.) v. Camden and Islington Health Authority [2001] 3 WLR 553, CA. This is capable of producing a situation in which a patient's right to liberty under ECHR Article 5.1 is violated, but no remedy is available, violating ECHR 5.5 (right to compensation) as well.

In the light of these considerations, the Committee seeks answers to the following questions—

1. Why the scheme proposed by the Bill is not intended to apply to mental health from the outset;

2. Why it is not proposed to apply the same scheme to local health authorities in cases arising under section 117 of the Mental Health Act 1983; and

3. What other steps are being taken to alleviate the risk, arising from a lack of aftercare services in the community, of violating of the Convention rights of mental health patients who cannot be discharged from compulsory treatment.

Finally, the Committee would be grateful for a description of any other representations you have received in connection with this Bill in relation to human rights issues, and of the specific points to which those representations were directed.

The Committee would be grateful for a reply by the time we break for the Christmas Adjournment, that is no later than the morning of Thursday 19 December.

5 December 2002



 
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