12. Letter from Chairman to Jacqui Smith MP, Minister of State, Department of Health
As foreseen in my letter of 24 July, the fact that the consultation paper on the draft Mental Health Bill has largely fallen within the parliamentary recess has made it impossible for the Joint Committee on Human Rights to consider the draft Bill during your consultation period. In your response, you took up my offer to write to you with some personal views in advance of the Committee's consideration of the draft Bill. This letter fulfils that offer to give you my personal views, which may or may not turn out to be shared by the Committee when it has an opportunity to consider the draft Bill at the end of October or early in November. My comments are confined to the human rights implications of the draft Bill. The Committee has received submissions on the draft Bill from a wide range of individuals and bodies, and its report is likely to deal with a wider range of concerns than those addressed here. Nevertheless, I hope that this letter will be useful for your immediate purposes.
I begin by recording that I welcome many aspects of the draft Bill, particularly
the Government's commitment to ensuring that the draft Bill is compatible with Convention rights;
the increased independence of the tribunals and appeal tribunal to be established to replace the Mental Health Review Tribunal system (although I regret the fact that the independence of the members of the tribunals is not guaranteed on the face of the draft Bill, but will depend on the terms of subordinate legislation to be made by the Lord Chancellor);
the role of the tribunals in authorising all compulsory treatment after the end of the first 28 days of treatment;
the increased assimilation of procedures for treating suspected offenders, convicted offenders, and prisoners to the procedures for treating other people for mental disorders (although the continued responsibility of the Home Secretary for deciding when restricted prisoners should be released from residence requirements sits oddly with the exclusive role of the tribunals in deciding questions about the dangerousness of other mental health patients);
the increased protection for "compliant incapacitated patients" in hospital, ie those who lack the capacity either to consent to or to refuse treatment, but who do not overtly refuse to accept it (although it is regrettable that the new protective regime would not apply to patients in the community or in residential homes); and
the roles of the new "nominated person" (replacing that of the "nearest relative" under the Mental Health Act 1983) and mental health advocates (although it is regrettable that the services of a "nominated person" would not benefit restricted patients, because of the way in which "Part 3 patient" is defined in clause 158(4) of the draft Bill).
On the other hand, there are significant aspects of the draft Bill which give rise to concern in relation to human rights. I start from the position that the right not to be treated against one's will is a fundamental aspect of one's personal autonomy and human dignity, engaging the right to be free of inhuman or degrading treatment, the right to liberty and the right to respect for private life under Articles 3, 5 and 8 of the ECHR. Any attempt to confer powers on people to interfere with those rights has to be clearly and comprehensively justified, not only by reference to medical or social policy but also in terms of the Convention rights. (The right to receive appropriate treatment when necessary is also important, but the draft Bill does not confer that positive social right.)
The most important threat to those rights in the draft Bill seems to me to lie in the very wide definition of mental disorder, coupled with the removal of the requirement under the 1983 Act for a condition to be treatable before the compulsory powers would apply and the lack of rigour in the conditions for authorising compulsory treatment.
The definitions of mental disorder and medical treatment in clause 2(5) and (6), and the conditions for authorising compulsory treatment set out in clause 6, are clearly intended to expand considerably the potential reach of the compulsory powers. In particular
the definition of mental disorder is capable of including epilepsy, addiction, and learning disorders such as dyslexia, as well as mental illnesses and personality disorders. The 1983 Act's express prohibition on detention "by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs" is significantly absent from the draft Bill;
medical treatment for mental disorder is defined in such a way as to include care, education or training delivered to the patient under the supervision of an approved clinician, whether or not it is therapeutically valuable to the patient or is in the patient's best interests.
The draft Bill would therefore make people liable to be treated compulsorily for a far wider range of medical and psychological conditions than the 1983 Act, and could lead to a patient being compulsorily treated in ways which are not calculated to confer any therapeutic benefit on him or her. The purpose appears to be to allow for the preventative detention of people with severe personality disorders who might cause a danger to others. That is a controversial objective, and (even if it is acceptable) the definitions of "mental disorder" and "treatment" are far wider than necessary to make such detention possible.
Some protection against the width of these definitions is provided by clause 6, laying down the four "relevant conditions" for authorising compulsory treatment and/or detention
(1) the patient must be suffering from a mental disorder;
(2) the mental disorder must be of such a nature or degree as to "warrant the provision of medical treatment to him";
(3) the patient must either be (a) a person at substantial risk of causing serious harm to others, whom it is necessary to treat for the protection of those people, or (b) a person to whom it is necessary to provide medical treatment for his or her own health or safety or to protect others, and to whom the treatment could not be provided unless the compulsory provisions of the Bill are applied; and
(4) appropriate medical treatment must be available in the patient's case.
However, condition (1) is very wide; condition (2) is very vague, and involves no necessity or treatability test (nor, perhaps, even a proportionality test); and condition (3)(a) gives rise to serious problems of risk assessment, making it possible that people will be more or less arbitrarily detained and treated. The safeguards against arbitrary or unnecessary treatment seem less rigorous than those recommended by the Richardson Committee, and do not appear to provide reliable protection against violations of the rights of patients under ECHR Article 5: the principle of legal certainty, which forms an essential part of Article 5, is not well served where provisions make it unreasonably difficult for carers, patients and their advisers to know whether detention or compulsory treatment are justified.
In Scotland, the Scottish Parliament enacted the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 amending the Mental Health (Scotland) Act 1984 to permit the preventative detention of dangerous offenders suffering from severe personality disorders whose conditions could not be treated therapeutically, in response to the decision of the House of Lords in R v Secretary of State for Scotland 1999 SC (HL) 17. The compatibility of the amending legislation with ECHR Article 5 and the Scotland Act 1998 was upheld by the Judicial Committee of the Privy Council in Anderson, Reid and Doherty v The Scottish Ministers and the Advocate General for Scotland (15 October 2001, DRA Nos 9, 10 and 11 of 2000), affirming the decision of the Inner House of the Court of Session in A v Scottish Ministers 2000 SLT 873. However, it should not be forgotten that this decision depended on the limits to the preventative power conferred by the amendments introduced by the 1999 Act.
In particular, the power of detention applied only in respect of people who had been convicted of serious criminal offences who were being treated for mental disorders and were restricted patients, ie patients who could not be released from compulsory detention for treatment without the consent of the Secretary of State or, subsequently, the Scottish Ministers. None of these limitations would apply to the power of compulsory detention for treatment under your draft Bill. Clause 6(1)(4) makes it clear that non-therapeutic detention could be authorised in respect of a person who had no conviction for an offence of violence or any other offence, on the basis of speculation about possible future behaviour and resulting risk to unidentified persons.
However, the draft Bill has no provisions directed specifically to the problems facing decision-makers in respect of patients with severe but untreatable personality disorders. As a result, I am concerned that the statutory regime contemplated in the draft Bill for non-therapeutic preventative detention of people who have never committed an unlawful act, let alone an act which subjects people to serious harm, may fail to provide patients with sufficient protection against arbitary detention to satisfy the requirements of Article 5, particularly in relation to the principle of legality.
I hope these comments will be helpful to you. I anticipate that the Committee will be reporting formally on the draft Bill by the end of October. Any preliminary response to the above points which you chose to make by the 18 October could be taken into account by the Committee in its report.
1 October 2002