6. Letter to Chairman from Jacqui
Smith MP, Minister of State, Department of Health
72 AND 73
Your letter of 1 September 2001 addressed to
Alan Milburn raised a number of questions about the decision to
lay the above order. I am responding on his behalf.
I shall address each of the points raised by
the Committee in turn.
Question 1: Did you consider seeking leave to
appeal to the House of Lords against the Court of Appeal's interpretation
of the 1983 Act, and, if so, what persuaded you that it would
be preferable to accept the Court of Appeal's restrictive interpretation.
We gave very careful consideration to the question
of appeal but decided not to pursue that course on the basis of
advice that there would be no realistic prospect of success. We
understand that there was no discernible error of law in the judgement
of the Court of Appeal and an application for leave to appeal
to the House of Lords had been refused by the Court of Appeal.
In addition the judgement was not out of line with the direction
of Government policy intentions for new mental health legislation
as set out in the White Paper Reforming the Mental Health Act
Question 2: Do you have any information about
the number of patients who might be in this position, with grounds
for applications to the European Court of Human Rights in respect
of their continued detention, until such time as the law is brought
into line with ECHR Article 5 and their cases are considered or
reconsidered by a Tribunal?
The Committee's comment in the pre-amble to
this question indicates that at least one patient (I assume H)
has been detained contrary to his Convention rights. I am not
persuaded that this is what the judgement says.
The Tribunal's written decision is ambiguous
as to whether there is a positive finding of mental disorder in
the case of H (see paragraph 6 of the judgment". .
. this patient is (a) still exhibiting symptoms of his illness,
namely the hearing of voices . . ."). This specific issue
was not addressed in the Court of Appeal's judgment which focused
on the abstract question of whether the test was compatible, not
whether H had been treated compatibly. It remains unclear whether
a positive finding of mental disorder warranting detention was
actually made, and hence unclear whether H's detention was at
any time contrary to Article 5.
Paragraphs 33 and 34 of the judgement cast further
doubt as to whether H was ever detained contrary to Article 5.
A clear analogy is drawn between the circumstances of the case
of H and the case of M and reference is made to the difficult
question of schizophrenia in relation to Tribunal discharge. Here,
the Court of Appeal suggests that schizophrenia, even when in
remission, enables the Tribunal to make the positive findings
necessary to satisfy Article 5 (albeit it is unclear whether they
did so in this case). The Court of Appeal then go on to say in
paragraph 34 that "it is only rarely that the provisions
of ss 72 and 73 constrain an MHRT to refuse an order of discharge
where the continued detention of the patient infringes Article
The Committee may wish to note that when H's
case came back before the Tribunal in August this year, the Tribunal
made a positive finding of a mental disorder of a nature and degree
warranting detention in hospital. As a result, H is subject to
Turning now to the Committee's question, we
are not aware of any patients whose Convention rights are being
breached as a result of the incompatible provisions.
My Department issued Guidance to Tribunal Chairmen
on 5 April 2001. It provides:
Where a Tribunal (having sought further information)
remains unable to make a positive finding that all the criteria
for continued detention are made out but nonetheless orders that
the patient be detained, it should state in its reasons that a
positive finding was not possible and that the statutory test
Hence, patients whose continued detention is
contrary to article 5 should be easily detectable. To date, no
such cases have been brought to the Department's attention by
patient representatives (over 95 per cent of patients have legal
representation before the Tribunal) or the Tribunal. We understand
that the Regional Chairmen of the Tribunal are not aware of any
We would not expect there to be any unrestricted
patients detained contrary to Article 5 given the Tribunal's absolute
discretion to order a discharge in any such case.
The same discretion does not extend to restricted
patients. That said, it remains the Court of Appeal's view that
it will "rarely" be the case that detention will be
contrary to Article 5 where the Tribunal refuses a discharge.
Question 3: What led you to decide against using
the "urgent cases" procedure for making a remedial order
under the Human Rights Act 1998, Schedule 2, paragraph 2(b) and
(4) which would have allowed the amendment of the law to take
effect at once, instead of delaying the opportunity for the patients
to seek their discharge until a date which is unlikely to be earlier
than March 2002?
Choosing between the urgent and non-urgent procedures
was not clear-cut.
The decision required balancing the potential
interference with patient's Convention rights against the need
for Parliamentary scrutiny of a proposal to change primary legislation.
The non-urgent procedure allows for a period
of consultation after which the draft order can be amended. With
the urgent procedure, there is no opportunity for the House or
its Committees to ask for changes until after the order has been
made. There is then no obligation on the Government to make any
change. The non-urgent procedure allies itself more closely with
the Parliamentary procedure used to scrutinise Bills. It provides
a higher level of Parliamentary scrutiny.
The non-urgent procedure was adopted in the
light of the fact that the Court of Appeal thought the Tribunal
would rarely be constrained to refuse discharge in Violation of
Article 5, and we had no evidence that any patient was currently
Question 4: Please will you inform the Committee
of any steps which you propose to take to make available sufficient
compensation to avoid a situation in which the United Kingdom
is in breach of its obligations in international law under those
Articles of the ECHR?
We do not envisage a statutory compensation
scheme. This is not least because the number of people who are
actually affected, if any, is expected to be very low. In light
of the very small number of possible violations, we consider that
a readiness to address complaints on a case by case basis would
be a more flexible and efficient response, and one less open to
Where a patient is able to demonstrate that
were it not for the double negative part of the test he would
have been discharged, the Government will pay compensation. It
seems likely that any intended application to Strasbourg will
be notified to my Department prior to issue and the question of
compensation can be looked at then. Under the guidance issued
by my Department in April any problems should be picked up long
before then. I would anticipate that the level of any compensation
awards would be in line with Strasbourg levels and not domestic
We recognise that a legally enforceable right
to a remedy for breach of a Convention right is preferable, as
a long-term solution, to an ad hoc response of the kind
described. Indeed, I understand that it is the model provided
by the Human Rights Act for breaches that are unlawful as a matter
of domestic law. However, we believe that an ex gratia
response is appropriate here, in the short term, where the detention
is not unlawful domestically. Our international obligations not
to detain people in breach of Article 5 are being anticipated
and met by the Remedial Order itself.
15 October 2001