Human Rights And Mental Health Wrongs

In a previous edition of INHEALTH (December 2000) we questioned whether the somewhat outdated Mental Health Act 1983 would be able to meet the demands imposed by the Human Rights Act 1998, which came into force last October. Some eight months on, the deficiencies of the 1983 statute, which itself was largely based on 1950s legislation, are starting to show.

UK mental health law has not produced the first declaration of incompatibility with the European Convention on Human Rights (that honour went to a planning case), but it has produced the second.1 In 1988 H was convicted of manslaughter. He was ordered to be detained in a hospital and was admitted to Broadmoor. In December 1999 he applied to the Mental Health Tribunal for a discharge pursuant to section 73 of the Mental Health Act 1983. The tribunal decided that H should remain detained.

H’s application for judicial review of that decision was dismissed, as was his application for a declaration that section 73 was incompatible with Articles 5 (1) and 5 (4) of the European Convention.

H appealed and on 28th March 2001 the Court of Appeal gave judgment on whether section 73 could be given an interpretation compatible with the Convention.

Article 5 enshrines the right to liberty and provides "no-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law". It permits "the lawful detention of...persons of unsound mind".

Article 5 (4) entitles anyone who has been detained to have the lawfulness of that detention "decided speedily by a court and his release ordered if the detention is not lawful".

H contended that it was the function of the Mental Health Review Tribunal to enable a compulsorily detained patient to challenge the legality of the detention. The tribunal acted as a "court" for the purpose of Article 5 (4).

The criteria for discharge under section 73 of the Mental Health Act 1983 are the same criteria that have to be satisfied before a patient can be admitted under section 3. However, on a natural reading of section 73, a tribunal is not required to discharge a patient unless satisfied that at least one of these criteria does not exist. It is for the patient to prove that the criteria for admission are not satisfied. The patient has the burden of proof. It was argued that such a reversal of the burden of proof was incompatible with the patient’s rights under Article 5 (1) and 5 (4).

The Court of Appeal accepted the argument put forward on behalf of H. While it could see some force in the contrary argument that the tribunal’s approach was inquisitorial rather than adversarial in nature, the ultimate test remained a case for the patient to make out. Such an approach was fundamentally in conflict with that set out in Article 5 (1) and 5 (4) and reinforced by the leading case of Winterwerp v Netherlands 2 . There it was held that an individual should not be deprived of his liberty "unless he has been reliably shown to be of unsound mind". It was not for the patient to show that he was not.

The Court of Appeal granted a declaration of incompatibility. It remains to be seen that further action (if any) will be taken. The government’s recent White Paper on mental health reform proposed no overhaul of section 73 and the burden of proof.

The Court of Appeal, when considering the case of H, was concerned only with a point which had arisen under the Human Rights Act 1998. Although there have been very few cases where the only matter to be determined is a human rights point, the Human Rights Act 1998 has been used to challenge the Mental Health Act 1983 in more indirect ways.

In R v Camden and Islington Health Authority 3 the applicant was challenging the interpretation of section 117 of the Mental Health Act 1983, which places a Health Authority under a duty to provide aftercare services following discharge from hospital.

The applicant was a restricted patient. A Mental Health Review Tribunal decided that she should be conditionally discharged. The conditions included a requirement that the should reside at her parents’ home and be supervised by a consultant forensic psychiatrist. The Health Authority tried in vain to find a forensic psychiatrist who was prepared to supervise the applicant while she lived with her parents. The applicant applied for judicial review of the decision of the Health Authority not to provide her with the supervision required by the tribunal. Her application failed and she appealed, contending that section 117 imposed an absolute duty on the Health Authority to satisfy the tribunal’s conditions. She also raised as an issue whether the statutory regime was compatible with Article 5.

The Court of Appeal held that section117 imposed a duty to provide aftercare facilities within the discretion and budget of the Health Authority. There could be no absolute obligation on the Health Authority to satisfy any condition for discharge which might be imposed.

In relation to Article 5, the Court of Appeal held that it was relevant to remember that the tribunal had concluded that the patient was mentally ill and required treatment, but that under certain conditions such treatment could be provided in the community. If it transpired that it was impractical to provide the community treatment which the tribunal had envisaged, then the criteria for detention laid down in the Winterwerp case remained satisfied. The patient’s continued detention would be lawful.

Furthermore, the European Convention did not purport to regulate the level of care in the community which member states were to provide. If all reasonable endeavours had been made to provide the patient with the care required under her conditional discharge, there would be no breach of Article 5 if these failed and she remained detained.

In R v East London and The City Mental Health NHS Trust 4 a patient challenged an application to re-admit him after discharge by the Mental Health Review Tribunal in the absence of a change of circumstances. The case had somewhat unusual facts. On 31st March 2000 a Mental Health Review Tribunal ordered the discharge of the patient, with his release to be deferred for 7 days. Before his release, on 6th April 2000, the patient was again detained under section 3 of the Mental Health Act 1983. His application for judicial review failed and he went to the Court of Appeal.

The Court of Appeal accepted the argument put forward on behalf of the patient that a finding by a tribunal pursuant to section 72, that a patient should be discharged, was tantamount to a finding that one or more of the criteria required for admission under sections 2 or 3 were missing. Counsel for the patient went on to argue that if relevant professionals could procure the re-admission of the patient without any change in circumstances, then this robbed the tribunal of its status as a court and reduced it to a mere advisory body. Article 5 (4) would be violated.

The Court of Appeal rejected this argument. Mental illness, by its nature, had fluctuating symptoms and the relevant professionals were not bound by an earlier tribunal decision. The tribunal fully satisfied the requirements of Article 5 (4).

It is not surprising that in many cases involving UK mental health law, human rights arguments have been raised. The combination could not be more explosive: antiquated mental health statutes, passed long before the UK had shown any intention formally of adopting the European Convention, regulating a central human right, that of liberty. In many respects the courts have continued to take a conservative approach, but the better remedy would be for the government to make all speed in passing appropriate new legislation.

1 R v Mental Health Review Tribunal,North and East London Region TLR 2/4/2001

2 (1979) 2 EHRR 387

3 TLR 15/3/2001

4 TLR 28/2/2001