13. Letter to Chairman from Jacqui Smith MP, Minister of State, Department of Health
1. Thank you for your letter of 1 October. I am grateful that you were able to let me have some insight into your thinking at this stage and I am particularly grateful for this opportunity to contribute to the Committee's consideration of the Bill.
2. I should start by thanking you for your welcome to many of the key proposals of the new Mental Health Bill; the rest of this letter naturally concentrates on the difficult areas where you consider there are concerns about human rights. You mention in particular Articles 3, 5 and 8 and the need to clarify any interference with these rights. We agree and the Department believes the Bill meets this requirement. It is one of the aims of developing new mental health legislation that it should be compliant with the ECHR.
3. We address your concerns point by point and hope your Committee finds this explanation of our approach helpful.
4. Your main concern is clearly that you fear many more people will become subject to the legislation. Were this our intention, I would also be concerned. What we do want is to ensure that those for whom experienced mental health professionals consider it necessary to provide treatment, can be given that treatment under compulsory powers. The consultation exercise has shown that many people share your concerns. What we are doing now is considering whether we need to amend the provisions to reflect more exactly our policy intentions. It might be helpful if I explained these and the background to our approach.
5. It was of course the Richardson Committee who recommended a broad definition of mental disorder. In doing so, they pointed out that there was a tension between a definition which was so broad it was open to abuse and one that was too narrow and risked missing people who might benefit from the provisions of the Act, or to whom the provisions of the Act should be applied for the protection of others. There was also felt to be a danger of entrenching in legislation a definition, which might quickly become outdated as clinical practice develops. Therefore, we have followed the Richardson Committee's broad definition avoiding specific diagnosis.
6. But as they advised, and as you rightly point out, the definition alone cannot form the reason for compulsion. There must be clear criteria which set out when compulsion may be used. The conditions for compulsion are set out in Clause 6. This sets out the relevant conditions that you quote in your letter, which must be met before a patient can be subject to compulsion under the Bill. The first condition reflects the definition of mental disorder given in clause 2. The other conditions impose restrictions on the use of compulsion, all of which must be met. These taken with the Bill as a whole protect the patient against violations of the ECHR and in particular the requirements of Article 5. What we are doing in the light of the consultation exercise is considering whether we need to make these more specific.
7. We do not think that the Bill will extend significantly the pool of people who may be liable to compulsion. The people likely to meet the conditions in clause 6 will be mainly those who would have met the old criteria in the Mental Health Act 1983. The differences reflect the adoption of the single definition of mental disorder. That decision could, on its own, have created a broader pool of potential compulsory patients, and we have had to look to the conditions to define clearly the circumstances in which compulsion is justifiable. This has required us to look at ECHR caselaw and identify what we believe to be the right requirements for justification of deprivation of liberty on grounds of mental disorder; objective medical evidence of the presence and persistence of mental disorder of a nature or degrees sufficient to justify detention This generalisation is expanded below. We believe our conditions are in fact more stringent than the ECHR requirements. I would also point out that we are seeking to minimise the infringement of people's rights that the use of mental health legislation inevitably implies. Under the 1983 Act people must be detained in hospital. We are proposing commuity treatment orders where that is more appropriate for the patient. Further the conditions make it clear that compulsion can only be used if medical treatment appropriate to the individual is actually available for them. This is more comprehensive safeguard that the "treatability" test provided in the 1983 that only applied to a small minority of mental disorders categorised as psychopathic or mental impairment. That condition, in addition to applying to only a minority of patients, was widely misunderstood, and had the effect of excluding from treatment individuals who would otherwise have qualified to the benefit of their health and safety and that of others. The ECHR conditions are strongly based on the need for objective medical expertise, and our conditions reflect that. Without doctors' evidence that a person needs treatment which is actually available, there can be no compulsion.
8. To turn to more detail, we consider the proposed definition of "mental disorder" is compatible with the ECHR and the views of the European Court of Human Rights as expressed in the leading case of Winterwerp v. Netherlands (1979) 2 EHRR 387 ("Winterwerp"). In that case, the court held that the phrase "persons of unsound mind" cannot be given a definitive interpretation, pointing out that "it is a term whose meaning is constantly evolving as research in psychiatry progresses". The Court also held that the definition must be read in contextsub-paragraph (e) of Article 5(1) obviously cannot be taken as permitting the detention of a person simply because his views or behaviour deviate from the norms prevailing in a particular society. To hold otherwise would not be reconcilable with the text of Article 5(1), which sets out an exhaustive list of exceptions calling for a narrow interpretation. Neither would it be in conformity with the object and purpose of Article 5, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion.".
9. In the Winterwerp case, the Court was looking at Dutch mental health law. This does not define persons of unsound mind. It does lay down the grounds for committing such persons to psychiatric hospital, namely that it is in the interests of the patient himself, or of public order, and that objective medical evidence states he is mentally ill, and that it is necessary/desirable to treat him in a psychiatric hospital. The Court held that this was compatible with the Convention.
10. The approach of Dutch law scrutinised in Winterwerp was very similar to that in the Bill. A definition of "mental disorder" is given, but it is by setting out the grounds on which a patient may be subject to compulsion (including detention) in clause 6 which ensures the law is not arbitrary and is in accordance with the Convention. To be lawful, detention for the purposes of Article 5(1)(e) must conform to domestic law and to Article 5(1)(e). There is nothing in the definition that is incompatible with Article 5(1)(e). The definition is broad, but Winterwerp demonstrates that the Convention recognises the need for this. The way it is exercised is, of course, subject to the obligation in section 6 of the Human Rights Act 1998 for public authorities to act in a way that is compatible with the Convention.
11. Winterwerp is also helpful in explaining the requirements of Article 5. It held that for detention on the ground of unsound mind to be lawful, it was necessary that
"(i) Except in emergency cases, a true mental disorder has been established by objective medical expertise;
(ii) the detention must be effected in accordance with a procedure prescribed by law;
(iii) the mental disorder is of a kind or degree warranting compulsory confinement; and
(iv) the validity of continued confinement depends upon the persistence of such a disorder."
12. These views were confirmed more recently by the Judicial Committee of the Privy Council in the case you cite of Anderson, Reid and Doherty v the Scottish Ministers and the Advocate General for Scotland, 2001 ("Anderson").
13. The Bill taken as a whole meets all of these requirements. Mental disorder must be established by objective medical expertise, as the involvement of independent medical experts is required at each stage. Initial examination (except for emergencies) is by two registered medical practitioners and an approved mental health professional (clause 9). Not only is consideration given by the examiners to whether the relevant conditions are met, but they must also determine whether it is appropriate for him to be detained in hospital for assessment, or whether the assessment can be carried out without such detention, by imposing conditions which allow the patient to remain in the community (clause 10). After 28 days, continued assessment or treatment, whether whilst being detained in hospital or not, can only be continued in accordance with an order by an independent mental health tribunal, who must obtain an independent report from a registered medical practitioner drawn from the expert panel (Chapters 5 and 7).
14. So, objective medical expertise is needed to decide whether the patient meets the relevant conditions and whether it is necessary to detain him in hospital in order to assess or treat him.
15. The nature of decisions facing clinicians in respect of patients with severe but untreatable personality disorders are, in essence, not so different from the ones they are making now. Currently mental health professionals working in specialised settings with people who are dangerous rely upon information about the patient's history in order to assess and formulate mental health problems and assess risk. An assessment would normally involve gathering information directly from the patient (about current and past thoughts, feelings and behaviour, as well as symptoms and signs of mental illness). Where possible, information would also be gathered from family members or other sources. The clinician will make a judgement about the reliability and validity of the information so gathered. The more information that can be obtained about the past and about certain `risk factors' or behaviour patterns, the more accurate the assessment of future risk.
16. You have doubts about the high-risk element of the third condition which you fear may lead to arbitrary detention. This test is close to that understood and applied in the courts since 1959 as a basis for applying a restriction order, except that we have sought to raise the threshold by the insertion of the word "substantial". The intention is to clarify that only the most dangerous people should be considered without the "necessity" safeguard. (Roughly the equivalent of restricted patients in the early stages of their detention under present legislation). The term is also well understood in the courts and by the MHRT and we are confident that it will not have the arbitrary effect you fear.
17. Your letter also raises concerns about legal certainty. The Department considers the above does set out clearly the criteria for the use of compulsion. Whether these conditions are met will depend on the doctor's, and at the Preliminary Examination stage, the independent Approved Mental Health Professional's (AMHP) assessment of the facts of each case.
18. The definition of "medical treatment" in clause 2(5) includes all the elements of that in s.145 (1) of the Mental Health Act 1983. The 1983 Act defines "medical treatment" as including
"nursing, and also includes care, habilitation and rehabilitation under medical supervision".
19. The new definition in the Bill does no more than clarify that habilitation and rehabilitation include "education, training in work, and social and independent living skills" provided under the supervision of an approved clinician. These must be read in context. Education alone of a child in the usual sense of the word would not amount to habilitation, whilst education in managing a mental disorder under the supervision of a consultant level psychiatrist or psychologist, or in addition to other forms of treatment, would. The definitions in both the 1983 Act and draft Bill must necessarily encompass the wide range of interventions now commonplace in mental health practice.
20. Again, we consider this to be compatible with the Convention. Again, the case law is helpful. The case law on the Convention, according to Lords Hope of Craighead and Clyde in Anderson, holds that treatability is not covered by Article 5. That case, as you point out in your letter, was concerned with restricted patients, but the proposition put forward by their lordships is of general application. They point out that the requirements spelt out in Winterwerp are not concerned with treatment. Their lordships also refer to the case of Ashingdane v UK (1985) 7 EHRR 528 which held that "Article 5(1)(e) was not in principle concerned with suitable treatment or conditions.".
21. You suggest that the new definitions and conditions are designed to enable preventive detention of dangerous people with severe personality disorders. That is not the case. We have no intention of enabling detention of any patient for whom no treatment is available nor is this possible within the terms of the draft Bill. The Government's DSPD programme is a ground breaking investigation of the extent to which dangerous personality disorders are amenable to clinical intervention and, consequently, could be justifiably managed within the scope of the powers provided in the Bill. We believe that effective treatment for such people will become available while this legislation is in force and that some people may be therefore appropriately treated under compulsory powers. The conditions are drafted to avoid exclusion of any mentally disordered person to whom professionals believe they can offer effective treatment.
22. Your letter points out that a patient may be subject to compulsion without having committed an offence of violence (to themselves or others). Non offenders have been liable to indefinite detention on grounds of mental disorder at least since 1959. Under the Bill, this will only be the case where two registered medical practitioners and an approved mental health professional all agree that the conditions for compulsion are met. The intention is to help people before they reach the point of seriously injuring or killing themselves or anyone else. We think that this is justifiable where the patient meets the conditions set out in clause 6. In Article 5 terms, Guzardi v Italy (1980) 3 EHRR 333 held that the need to protect the public from serious harm is in itself a legitimate reason for the detention of persons of unsound mind. This is also supported by the Court in Winterwerp. In that case, the court considered a proposed Dutch law, which authorised confinement of a person of unsound mind if he was a danger to others or it was for the general safety of persons and goods and found it to be compatible.
23. Article 8 balances the right of the individual to have his private and family life respected, subject to such interference by a public authority as is necessary in a democratic society in the interests if (inter alia) public safety, prevention of crime or disorder, and the protection of the rights and freedoms of others. The European Court held in Glaser v UK  1 FLR, 153 that Article 8 protects the individual from arbitrary interference by public authorities. This involved a regulatory framework of adjudicatory and enforcement machinery to protect individual's rights. In assessing the compatibility of this machinery, the Court held that regard must be had to the fair balance to be struck between the competing interests of the individual and the community, including other concerned parties. The power to subject patients to compulsion under the Bill cannot be exercised arbitrarily. Only where it is necessary to provide treatment for the health and safety of the patient or the protection of others, in the opinion of two registered medical practitioners and an approved mental health professional, can the patient be subject to the legislation.
24. The safeguards set out in the Bill meet all the requirements of Article 5 as explained in Winterwerp. They ensure the use of compulsion is kept under review and that the patient has speedy recourse to the tribunal at each stage to consider whether his compulsion is justified under the Bill. The appointment of nominated persons for patients (clause 14(4)) and the help available from mental health advocates (clause 127) are an additional safeguard. Applications may be made to the tribunal for discharge by the patient or his nominated person under clause 28 or 42 where either feels the relevant conditions are not satisfied.
25. While your main concerns were to do with the apparently wide scope of the legislation, you also raised some more detailed points. We agree that the independence of members of the tribunals is an important issue. We are aware that Article 5(4) requires that it is for a "court" to decide on the lawfulness of detention and that for the Mental Health Tribunal to satisfy the requirement of that provision, it would have to be independent. Bearing in mind section 6 of the Human Rights Act 1998, the Department considers that the law is clear-cut and that an express statement in the Bill that the tribunal members must be independent is not necessary.
26. As you note, we are for the first time intending to provide new safeguards for compliant incapacitated patients. In providing the new safeguards, the Department feels that it is most important to prioritise those patients whose mental disorder is so serious as to warrant hospital or nursing home treatment under the supervision of a consultant clinician. You are concerned that the safeguards for these patients will not apply to patients in the community or in residential homes but we do not think, nor do you suggest, that this raises any concerns on the ECHR front. We would also point out that the Government's proposals regarding decision-making on behalf of adults without mental capacity will assist in clarifying the legal framework within which decisions on behalf of these people are taken.
27. You suggest in passing that the continuing power of the Home Secretary to agree to the conversion of residential orders to non residential in the case of restricted patients sits oddly with the exclusive role of the tribunal in making orders for the compulsion of other patients. The provision does no more than replicate the position under the 1983 Act, where the Home Secretary is the primary discharge avenue for restricted patients. This is because the sentencing court has concluded in restricted cases that an offender is sufficiently dangerous to others for decisions on risk to require scrutiny by the authority responsible for public safety. These are offenders who, but for the availability of a health disposal, would be serving prison sentences; in many cases life sentences. The Home Secretary's role in this respect has been found in Court to be ECHR compliant. Under the proposals, as under the 1983 Act, he shares the power with the tribunal and has no power of veto.
28. I hope this explanation is helpful and I look forward to receiving the Committee's formal report.
24 October 2002