4. Memorandum from Genevra Richardson, Professor of Public Law, Queen Mary, University of London
Thank you for your letter of 3 July 2002, inviting comments on the human rights implications of the above draft Bill. In view of the tight time scale and the need for a speedy response 1 will restrict my comments to a brief indication of my main areas of concern. 1 anticipate that others will be raising further matters with you including those relating to the appointment of nominated persons and the provision of information.
The breadth of clause 6: the relevant conditions for entry into compulsory care and treatment are remarkably broad. In relation to detention and article 5 this may pose no problems, but there could be implications in terms of articles 8 and 14. Patients under compulsory orders will be liable to medical treatment in the absence of their consent, even if they are competent and refusing. Recent decisions by the Court of Appeal have drawn attention to the denial of autonomy in this regard under the 1983 Act and have introduced additional procedural safeguards (R (Wilkinson) v. Broadmoor  1 WLR 419, and R (Wooder) v Feggetter and the MHAC  FWCA Civ 554). The denial of autonomy will be perpetuated under the proposed Bill and in certain circumstances the patient's access to review of treatment decisions could be reduced, Part 2, Chapter 6.
Obligations to provide care and treatment: it is unclear to me how the proposed Bill will ensure compliance with the implications of Johnson v The UK (1997) 27 EHRR 296.
The Secretary of State's powers in relation to restricted patients: clause 104 (4) retains the Home Secretary's exclusive power to transfer restricted patients between hospitals and to provide for leave of absence. In practice transfer and leave commonly constitute essential preconditions for discharge. The retention of exclusive powers in this regard by the executive is bound to attract challenge, which following decisions such as Stafford, can be expected ultimately to succeed.
Deprivation of remaining liberties: there is nothing in the Bill itself to provide a statutory framework governing the use of seclusion etc in relation to resident patients. Presumably such matters will be dealt with in the Code of Practice, which will not have the status of a Statutory Instrument. This omission gives rise to serious human rights concerns.
ECT: the Bill makes special provision for the administration of ECT in cases of urgency without the approval of the Tribunal. Clause 119(2)(d) gives the immediate necessity to prevent violent behaviour as a possible ground for emergency ECT. Questions may be raised about this.
18 July 2002