Monday, 20 July 2009
The government has published its proposals for the future of adult care in England. Not surprisingly, a great deal of attention has been paid to the cost of those proposals, and to who should meet it. There are, however, other questions that are just as important.
The government says the system for adult care should be fair, simple and affordable, and that it will therefore need to be underpinned by national rights and entitlements. Nowhere, however, does it say what those rights will be or even what they might look like.
There is no doubt that even now, the legal framework for adult care is old-fashioned, forbiddingly complex and in need of review: the Law Commission has just said so and change now seems highly likely. The new care proposals will only compound the problem.
It seems that under what the government has dubbed the National Care Service (NCS):
* There will be a fully joined-up service between the NCS and the NHS.
* There will also be a single, national assessment process, with people who have gained entitlements in one area being able to transfer them to another.
* The state will meet a fixed proportion of each person’s care costs and any additional costs will be met by social or private insurance.
* An independent body will be created, to advise on quality and best value in adult care services.
* People will be able to continue living in their own homes, if that is what they want.
It remains to be seen whether these aspirations are widely shared, but if they are to be achieved, it will surely only be through legislation.
The shape of any new legislation will be crucial and will have to be debated very thoroughly. It would be unfortunate, however, if the messages from that debate were drowned out by arguments about pounds, shillings and pence.
The government's proposals are contained in a green paper, which is available here.
© Jurgen Chill
The government says it still intends to extend a new manslaughter offence to prisons, police stations and mental health hospitals, and to do so by April 2011.
The offence is part of the Corporate Manslaughter and Corporate Homicide Act 2007. It could apply where a person dies because an organisation – an employer, for example, or a service provider - breached its duty of care.
Though the Act itself came into effect in April 2008, the government exempted places of detention, because it said they might need as much as five years to prepare. They aren’t going to get that.
In a new report to Parliament, the Ministry of Justice reveals there’s a lot to be done in the criminal justice system.
* Prison capacity will rise to 96,000 and many existing cells will be improved.
* The recent Bradley Report, on how the criminal justice system treats people with mental disorder or a learning disability, will be implemented in full.
* The new Ministerial Board on Deaths in Custody will get into its swing.
* More work will be done on the risks presented by transferring prisoners.
* The Person Escort Record will be introduced nationwide and the Police National Computer made available in more prisons.
* New IT will make it easier to share information across the youth justice system.
* Proper arrangements will be made for NHS primary care trusts to take responsibility for healthcare in police custody suites.
* There will be greater integration of prison and community drug treatment services (the budget for which will be increased more than three-fold).
* Policy custody staff will continue to receive expert training.
* Prison staff will be taught about the system for managing prisoners identified as being at risk of suicide or self-harm, and all policies will be reviewed.
* The government will implement the recommendations of a recent review of the use of restraint on juveniles.
Not all of this work will have to be completed in the next few months, of course. A great deal will have to change, however, if places of detention and those responsible for them are to be ready to meet the challenge of the new Act. The cost, should they fail, is likely to be high.
The new report is available here.
Although coroners now have wider powers, it seems the use of those powers varies widely.
Coroners often hear cases in which death might have been avoided. They have long had the power to report those cases to the appropriate authority, and since July 2008, they have been entitled to demand a response. According to new figures, however, some coroners are doing that far less frequently than others.
Now, any response must be sent to the coroner within 56 days and the Lord Chancellor may publish responses received. The first summary of those responses shows that:
* By the end of March, reports had been issued in 207 cases, and in 57 of the 115 coronial jurisdictions. (This means that 58 coroners made no reports.)
* Just five coroners accounted for nearly a third of all those cases. In fact, most of them – 18 – came before the South Manchester coroner (and 12 came before the City of Manchester Coroner). The Cardiff and South Staffordshire coroners each made reports in 15 cases.
* More than a quarter of cases in which reports were issued concerned hospital deaths, but there were also significant numbers of reports concerning mental health-related deaths and deaths in the community.
* Nearly a fifth of reports concerned deaths on the roads, and about a tenth revealed health and safety concerns.
These are, of course, early days, and, as the Lord Chancellor’s summary itself explains, what a coroner does is determined by the cases he or she hears. There are, nevertheless, striking disparities in the extent to which coroners’ report-powers are now being used.
The summary may be found here.
Tuesday, 7 July 2009
There’s a difference between wanting to kill yourself and simply wanting to harm yourself … and the law recognises it
Just because you cut yourself, or burn yourself or bruise yourself, that doesn’t mean you want to die. Practitioners have long understood the distinction and now, it seems judges understand it too.
Mr P has a long history of self-harm: he has placed foreign objects in his mouth and used them to open up old wounds, he has exposed tendons in his feet and hands, and he has inserted matchsticks and glass into his penis. For 15 months, he was detained in a young offenders’ institution, and when he came out, he asked for an inquiry to be held concerning the care he received there.
Mr P’s request was turned down by the Justice Secretary, and that decision has been upheld by the High Court and, yesterday, the Court of Appeal. One reason is his own self-harming behaviour: the court said it was just that and not the same as attempted suicide. And because it is only suicide, or near-suicide, that actually demands an inquiry, one need not be held in this case.
Self-harm and the ways of addressing it are poorly understood, by the general public as much as by the courts, so practitioners may find the reason for this particular decision reassuring.
Wednesday, 1 July 2009
An influential group of peers would like to change the law, to make it legal for relatives and friends to accompany someone who wants to commit suicide abroad.
And it seems that record numbers of Britons are waiting to use the services of Dignitas, the controversial, Zurich-based organisation that runs a clinic where people are assisted to kill themselves.
To many the proposed law-change might seem sensible and humane, but it could also be seen as an exercise in half-measures; a classic British fudge, consisting of hypocrisy and sentimentality in equal measure. It would allow Britons to salve their consciences by exporting the problem overseas.
The law in this area is already caked in fudge: although the CPS acknowledges that prosecutions are unlikely, it has refused to publish a formal policy to that effect, leaving carers and family members to face at least the theoretical prospect of 14 years in jail. One woman, Debbie Purdy, has challenged this refusal, and the House of Lords is expected to announce its decision in her case any day now.
In its dealings with the terminally ill, the law is not honest. If killing oneself is wrong, we shouldn’t allow anyone to do it, even in Switzerland; but if we believe otherwise, we should say so explicitly and shape our laws accordingly. Half-measures, no matter how well intentioned, simply won’t do.
A prison breached a prisoner’s rights when it intercepted correspondence with his doctor. That was the decision of the European Court of Human Rights recently, in a case the domestic courts had dismissed. (Szuluk v United Kingdom, Application no 36936/05, Decision published 17 June 2009)
The prisoner, Mr Szuluk, is serving a 14-year prison sentence for drugs offences. While awaiting trial, he suffered a brain haemorrhage and began receiving treatment from a neuro-radiologist. It was his correspondence with that doctor that, following his conviction, was monitored by a prison medical officer.
The government admitted the letters had been read, but it claimed that was perfectly lawful. The Strasbourg court disagreed. It held that the prison had acted disproportionately: there was nothing to suggest that Mr Szuluk had or would ever abuse medical confidentiality, and there was no reason to question his doctor’s good faith. Ordinarily, a prisoner’s correspondence with his doctor should have no less protection than that with his lawyer or his MP. Mr Szuluk was awarded damages of 1,000 euros and costs of 6,000 euros.
Mr Szuluk will like this decision, as will many prisoners and those that support them. It shouldn’t, however, make us complacent: the correspondence of those detained is nowhere near as secure as we might hope.
My own experience is of the law relating to mental health patients. For them, the Mental Health Act dictates when their letters can be intercepted and gives them some redress when it is read. But those safeguards are illusory. I have been involved in several cases where the correspondence of detained patients was seized by the police as part of a criminal investigation. In one case – a high-profile murder – the hospital had the nerve, and the resources, to challenge the police in the High Court. It lost. The decision has never been reported, but the court said that the Mental Health Act protections were only part of the picture, and that a patient’s right to privacy might be outweighed by the needs of a criminal investigation. I saw what the patient wrote and all I can remember is that, time-after-time, he asked about the welfare of his dog. The letters didn’t figure in his trial.
Since April, many hospitals and care homes have had the power to deprive people of their liberty. That is the result of the DoLS – the Deprivation of Liberty Safeguards. The government prefers to see the DoLS as protection: a way of preventing the arbitrary detention of the old and the incapable. It’s certainly true that the DoLS were introduced to fill a gap in the law – a gap rather embarrassingly revealed in 2004 by the European Court of Human Rights. So maybe we should be worried that the new safeguards aren’t being used.
The powers given by the DoLS aren’t unfettered: they can only be used with prior permission from a PCT or a local authority. And there are some broad problems with the DoLS, not least the fact that because of the way they are drafted, they might not even apply to the patient whose case led the ECtHR to do what it did. Furthermore, a recent decision of the House of Lords in a public order case might mean that there is no one – not a single patient with a learning disability or little old lady with dementia – to whom the DoLS apply. Maybe that explains the figures.
The government predicted that before next spring, approximately 21,000 people would have their cases assessed, and that a quarter of them would then be brought within the DoLS. According to the first statistics, that isn’t going to happen.
* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, well over two-thirds say they have had fewer than five DoLS cases and almost a quarter seem not to have had any cases at all.
* If the experience of the first two months is anything to go by, only just over 8,000 – as opposed to the forecast 21,000 – people will be assessed in the first year of the DoLS, and the number of people brought within the substantive safeguards will be little more than a third of the predicted number.
* In fact, these national figures conceal an even more striking regional picture. One council, for example, reported 105 DoLS cases in April and May, while only two of its neighbours even reached double-figures.
But there is another explanation for this: that in some – quite a few, in fact - parts of the country, DoLS-applications are being actively discouraged. That would be worrying, and not just because public bodies would be failing in their duties. Hospitals and care homes too would be placed in jeopardy. Where permission is required to deprive an incapable person of liberty, the failure to obtain it will be unlawful and that one was discouraged from seeking it will be no defence.
Many public bodies, including local authorities, police and the NHS, are to have new responsibilities for children who are in poverty.
The Child Poverty Bill was introduced into Parliament recently and will have its second reading soon. Speaking about the Bill, the Work and Pensions Secretary, Yvette Cooper, said the government still hoped to eradicate child poverty by 2020.
Amongst other things, county and district councils and London boroughs will have to:
* take the lead in making arrangements to reduce child poverty, and in fostering co-operation with and between ‘partner’ public bodies; and
* publish an assessment of the needs of children in poverty and a strategy by which those needs can be met.
The Bill is said to be influenced by recent climate change laws. In fact, the new duties resemble the ones imposed on local authorities and criminal justice agencies to formulate crime and disorder strategies and make public protection arrangements, imposed under the Crime and Disorder Act 1998 and the Criminal Justice Act 2003 respectively. Like them, the child poverty duties might prove less than onerous.
Some excitable commentators have already suggested that the Bill will promote litigation between competing public bodies. That is very unlikely. The new duties should not be hard to satisfy. Although the Bill imposes challenging targets on the government, it doesn’t extend them to public bodies in any measurable way, and in the case of the so-called partners, it imposes no targets at all; merely the duty to co-operate in the making of anti-child poverty arrangements. Surely that isn’t too much to ask.
Tuesday, 9 June 2009
© James Nachtwey/VII.
The government is to consider whether healthcare given to people in custody should be the responsibility of the NHS, not individual police forces. A recommendation to that effect was made by the Labour peer and former Home Office minister Lord Bradley in his review of how people with mental health problems or learning disabilities are treated in prisons and police stations. It seems any changes will be made quite quickly: a new programme board has been set up to consider the options and it will report within the next 12 months.
The recommendation reflects dissatisfaction with Forensic Medical Examiner services as a whole. Even though the Lord Bradley says some of those services are “excellent and invaluable”, he notes a widespread concern among professionals that medical care is not always available to police detainees when it is required. There is also a – perhaps understandable - desire to unify the provision of health services within the criminal justice system and thereby to ensure greater continuity of care and the smoother flow of information.
Lord Bradley’s recommendation is not new. It was made in Baroness Corston’s recent report on vulnerable women in the criminal justice system, and also in the Department of Health’s own consultation on a proposed strategy for offender care, published in 2007.
The new report also has something to say about Appropriate Adults, who it seems are utilised far less often than they should be. On a national level, there may be problems identifying the need for an Appropriate Adult in the first place, and then in locating someone who can perform the role effectively. The government has conceded that the role should be reviewed and has asked the programme board to consider the resource implications of such a course. Taking into account of the more general review of PACE, the board must also consider whether Appropriate Adults should be trained (and if so, how).
In response to Lord Bradley's report, the government also says:
* It might limit the time prisoners with mental health problems can be expected to wait to be transferred to hospital. (Lord Bradley said this wait might be pegged at 14 days.)
* There should be an evaluation of treatment options for prisoners with personality disorder and a review of the flagship programme for those with Dangerous and Severe Personality Disorder.
* The work of mental health prison in-reach teams should be reviewed.
* There should be better mental health primary care for prisoners, and a number of PCTs will therefore be nominated to take the lead in commissioning prison health care services.
* Consideration will also be given to making awareness about mental health and learning disability issues a key component of police training, and to giving all custody suites access to liaison and diversion services.
Monday, 4 May 2009
Someone who suffers from mental disorder cannot sit on a jury. That much is clear. The law was altered recently, to take account of the new Mental Health Act, but some rather older changes reveal a distinct shift of emphasis.
Juries are common in the Crown Court, where they will deal with criminal cases, and they can even be used in the High Court or in the county courts. The relevant piece of legislation is the Juries Act 1974, section 1(1)(a) of which now says that a person suffering from mental disorder is disqualified from sitting as a juror. According to the Act, this covers:
* Anyone who suffers from mental disorder within the meaning of the Mental Health Act 1983 (MHA) and consequently either resides in a hospital “or similar institution” or regularly attends for treatment by a medical practitioner. This will cover informal as well as detained hospital patients, and also those whose mental health care is provided on an out-patient basis or even, arguably, by a GP.
* Anyone who is subject to guardianship or to a Community Treatment Order under the MHA.
* Anyone who lacks capacity, within the meaning of the Mental Capacity Act 2005, to act as a juror.
It is said that 750 people are month are barred from jury service on these grounds and a survey suggests that 12 per cent of people with mental illness have been excluded from jury service at some time in their lives.
In fact, the obligation lies with the potential juror, who, when he receives a jury summons, must submit a detailed form. He can be fined up to £1,000 if he fails to do so, or to do so properly.
The form asks the potential juror, amongst other things, whether he suffers from mental disorder. Confusingly, perhaps, the 4-page guide that is sent with the jury summons does not reflect the revised MHA. Ignoring crucial – and controversial – changes made by the Mental Health Act 2007, it says that mental disorder consists of mental illness, psychotic disorder, mental handicap or severe mental handicap. This discrepancy raises the possibility that someone with an acquired brain injury, for example, who would not have fallen within the old definition of mental disorder but might fall within the new, will declare himself qualified for jury service when the law deems him not to be so. What would be done with such a person?
The recipient of a jury summons must inform the court of the existence of factors that would disqualify him from service. Originally, the 1974 Act said simply that if those factors, or their mid-70s equivalents, existed, the potential juror “shall be entitled, if he so wishes, to be excused from jury service”. It seems he could have chosen not to disclose his mental disorder. Now, it seems that instead of that discretion, he will face a hard, inflexible obligation.
There is a further official error that is instructive. In its current edition, the jury summons guide says that a further reason someone might be disqualified from jury service is because a judge has found him to be incapable, by reason of mental disorder, of managing or administering, his property and affairs. But this reflects the old position, which obtained before Part VII of the Mental Health Act 1983 was replaced by the Mental Capacity Act 2005. Now, and as the Juries Act 1974 itself provides, an incapable person will be disqualified, first where his capacity has been assessed (and found wanting) under the MCA (not the MHA); and secondly, where the effect of his incapacity is, specifically, to render him incapable of serving as a juror.
In fact, it might be argued that the capacity ground subsumes all the others, and that the only question to be asked is whether the individual concerned is fit to fulfil the purpose for which he has been summoned. Because, like the guidance that accompanies it, the jury summons does not reflect recent amendments, this last possibility is not one upon which a would-be juror is invited to reflect.
There are, however, places where incapacity alone – and not its cause – is the criterion. In many provinces of Canada, for example, it will exclude a person from jury service; while in Texas, it would be a ground upon which someone called to sit on a jury might ask – or might decide not to ask - to be excused. Which is more or less where we came in.
Wednesday, 8 April 2009
Before long, significant changes will have been made to the law that covers children and many incapable or vulnerable adults. It is still unclear, however, what those changes will mean.
Yet the law must always be clear. The European Court of Human Rights (ECtHR) said as much in 2004: “An important ingredient of lawfulness is that all law must be sufficiently precise to allow the citizen – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail.” (HL v United Kingdom) In fact, this principle goes back much further; at least to Sunday Times v United Kingdom in 1979 and possibly to the ancient Chinese Fa legalism of the eighth to third centuries BCE.
The HL case was about the common law doctrine of necessity and whether it was sufficiently clear to permit incapable people to be deprived of liberty in their own best interests. The ECtHR said it was not and that as a result, it breached Article 5(1) of the ECHR.
The Government’s response was to introduce the Deprivation of Liberty Safeguards (DoLS), which will apply wherever an incapable person is in a NHS hospital or premises registered under the Care Standards Act. For such a person to be deprived of liberty, permission will have to be obtained, either from a PCT or a local authority. If the Court of Protection is to be involved in the case, it will be subsequently, as an appellate court.
One problem with the DoLS is that even now, some time after they came into effect, no one really knows what it means to be deprived of liberty. And it seems that the best guidance is as likely to be found in anti-terrorism cases as in those decided under health care law. (See: David Hewitt, New perspectives on the Mental Health Act, Solicitors Journal, 18 November 2008) Practitioners – and patients – surely deserve better than that.
Another problem is the attitude of the House of Lords, which recently held that in deciding whether something constitutes a deprivation of liberty, consideration may be given to the purpose it seeks to achieve. (Austin v Metropolitan Police Commissioner, 2009) Their Lordships drew on HM v Switzerland (2002), in which the ECtHR held that where an elderly woman was admitted to a nursing home, Article 5 of the ECHR would not be engaged, because this was a “responsible measure” taken in her own best interests and could not, therefore, amount to a deprivation of liberty. The decision in HM had long been considered a rogue one, and In HL, a differently-constituted ECtHR took pains to distinguish it. Now, however, its spectre has returned, and in a way that might haunt the DoLS. (See: David Hewitt, Whose liberty? Solicitors Journal, 13 February 2009)
Under the DoLS, a deprivation of liberty will only be permitted – and will only, therefore, be lawful – if it is in the best interests of the incapable person concerned. But Austin suggests that a measure will never be a deprivation of liberty where it has a benevolent purpose. If that were so, no patient who appeared to fall within the DoLS would ever be deprived of liberty, and as a result, permission would be unnecessary where the DoLS appeared to demand it most. No formal comment has been made about the effect of Austin, but the Department of Health has let it be known that as far as the DoLS are concerned, it is business as usual.
There is a widespread view – even unanimity, perhaps – that we should strive to protect vulnerable people. The problem is that no one can seem to agree on what ‘vulnerable’ means. (See: David Hewitt, What is vulnerable? Solicitors Journal, 14 April 2009)
The word is used in the No secrets guidance, which was published in 2000 and is the centrepiece of the adult protection framework. The guidance is, however, being revised, and there is no guarantee that vulnerability will continue to have the resonance it does now. And the ‘No secrets’ definition is not the only one to hand: the Youth Justice and Criminal Evidence Act 1999, the Care Standards Act 2000 and the Safeguarding Vulnerable Groups Act 2006 all have to do with the vulnerable, but each of them defines the term differently.
The High Court, meanwhile has said that it too will offer a remedy to the vulnerable. (Re SA: vulnerable adult with capacity: marriage, 2006) The Court’s motive might be to create new work streams, given that it has lost much if not all of its jurisdiction over incapable people to the Court of Protection. Its conception of what it means to be vulnerable is certainly the broadest of them all.
Hitherto, someone with parental responsibility has been able to consent to medical treatment for a child, even where the child himself or herself is capable of giving consent, and even where he or she has refused to do so. Now, however, we are told that sometimes, it will not be sufficient to rely upon parental consent. (See: David Hewitt, Too young to decide, Solicitors Journal, 30 September 2008)
This notion is set out for the first time in the revised Code of Practice to the Mental Health Act 1983, where it is said to derive from Nielsen v Denmark (1989). The Code says: “It is difficult to have clear rules about what may fall in the zone, when so much depends on the particular facts of each case … The parameters of the zone will vary from one case to the next: they are determined not only by social norms, but also by the circumstances and dynamics of a specific parent and child or young person.” (Paragraphs 36.9 and 36.12) Furthermore, “Where there is doubt professionals should take legal advice so that account may be taken of the most recent case law.” (Paragraph 36.9)
According to the Code, the factors that should be taken into account include: the nature and invasiveness of the treatment; whether the child is resisting; any conflict between the child and the parent, or between the parents; any discrepancy between the child’s and the parents’ interests; and the mental capacity of one or other parent.
But another factor, which might itself render unreliable consent obtained from a parent, is “The general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make – anything that goes beyond the kind of decisions parents routinely make will be more suspect.” (Paragraph 36.12) And the Code reminds us that a decision might be beyond a parent to make simply because of the nature of the proposed treatment – for example, where it could be considered “particularly invasive or controversial” (Paragraph 36.14) But does this guidance clarify or simply obscure the position?
What, for example, are the general social standards in force at the time concerning the sorts of decisions it is acceptable for parents to make; and how should we go about identifying them? Are practitioners expected to take the Guardian and the Daily Mail, and to watch both Newsnight and Jeremy Kyle? And is a code of practice really the right place for such a far-reaching proclamation? If parental consent is no longer to be a sound basis for medical treatment given to a child, why doesn’t the Government say so explicitly, in legislation?
In cases of doubt, professionals are advised to take legal advice, “so that account may be taken of the most recent case law.” This is because the Government no longer regards the Nielsen decision as reliable. The most recent case law, however, supports Nielsen: the decision was another of the golden oldies revived by the House of Lords in Austin. Does that mean, therefore, that on the basis of the Code of Practice, parental consent is still sovereign after all?
And finally: is a decision about cancer surgery really – and by reason only of its magnitude – beyond the remit of a child’s parent? If it is, can we say with any degree of certainty that such a state-of-affairs is itself consistent with the general social standards concerning the sorts of decisions it is acceptable for parents to make?
These changes are worryingly vague, both in their implications and in their own terms. But if each change is taken at face value, it produces some results that are startlingly clear.
If, ultimately, a judge is to decide whether a child can have medical treatment, a vulnerable adult be protected or incapable person deprived of liberty, a great measure of professional discretion will have to be surrendered. And if the judge that makes such decisions sits in the Court of Protection or the Family Division, and not the High Court, his or her remit will be wider and the yardstick will be merits, not reasonableness.
This will change the practice across wide areas of health and welfare law, so that the judge ceases to be a simple reviewer of public decisions and becomes instead a primary decision-maker. It would be understandable if, in these times of travail, there were to be a loss of faith in professionals. But it’s still a bit of shock to realise that as far as the government is concerned, we are all bankers now.
Friday, 6 February 2009
Where a child requires medical treatment, the old rule was that the parents could consent on his or her behalf. Now, it seems the old rule is also the new rule.
For the last 20 years or so, it has been accepted that a parent can consent to medical treatment for a child. This position is the result of Nielsen v Denmark (1989) 11 EHRR 175 and it will obtain, even if the child is competent and has refused consent. In Nielsen, a boy who did not want to go into a closed psychiatric ward was admitted there with the consent of his mother.
Late last year, the Department of Health cast doubt upon this position, at least in the case of competent children. In the revised Code of Practice to the Mental Health Act 1983, it noted that Nielsen was decided before the Human Rights Act 1998 came into effect and “the trend in recent cases is to reflect greater autonomy for under 18s in law”, and concluded: “it is not wise to rely on the consent of a person with parental responsibility to treat a young person who refuses in these circumstances.” (Department of Health, 2008, Mental Health Act 1983 Code of Practice, paragraphs 36.33 and 36.43)
This conclusion caused dismay among practitioners in child and adolescent mental health. More recently, however, and despite what the Department of Health said, the House of Lords has suggested that Nielsen remains good law.
In Austin v Commissioner of Police for the Metropolis  UKHL 5, their Lordships found, perhaps contentiously, that a woman who took part in the May Day protests of 2001 had not been deprived of liberty when, along with several thousand other people, she was corralled into Oxford Circus by the police and detained there for a number of hours. They said that the purpose of these measures – crowd control – was a permissible one and “in the interests of the community”, so that Article 5 of the ECHR, which enshrines the right to liberty, wasn’t even engaged.
In support of their contention that the purpose of the measures was relevant to the question of whether Article 5 was engaged, their Lordships examined Nielsen and found it to be directly relevant to the case before them. They went as far as to cite with approval the following passage of the judgment in that case: “Hospitalisation was decided upon by [the mother] in accordance with expert medical advice. It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights”.
If, as seems likely, Nielsen remains – or has again become – good law, the concerns of the Department of Health are baseless and any child, even an unwilling one, may be treated with the consent of his parent.
Wednesday, 4 February 2009
Photo: Peter Jordan, PA
The House of Lords recently held that a woman who took part in the May Day protests of 2001, and who was one of several thousand people whom the police confined in Oxford Circus for up to seven hours, was not deprived of liberty. (Austin v Metropolitan Police Commissioner  UKHL 5) The woman lost her case because their Lordships decided that the reason the police did what they did was relevant, and because they accepted that what the police did was proportionate and done in good faith.
Giving the lead judgment, Lord Hope cited a number of cases brought under the European Convention on Human Rights (ECHR), which, he said, established that in deciding whether there is a deprivation of liberty, “Account must be taken of […] the context in which the restriction of liberty occurs” and, therefore, of the purpose of the measures used. (Paragraph 21) Here, the purpose – crowd control – was a permissible one and “in the interests of the community”, so that Article 5 of the ECHR, which enshrines the right to liberty, wasn’t even engaged. This conclusion is likely to be deeply contentious, not least because the authorities do not mention ‘purpose’ at all; rather, they focus on the “type, duration, effects and manner of implementation of the measure in question”. (See, for example: Engel v The Netherlands (1979-80) 1 EHRR 647; Guzzardi v Italy (1981) 3 EHRR 333) These are plainly not the same things.
Lord Hope’s conclusion would appear to owe a great deal to the controversial European Court of Human Rights (ECtHR) decision in HM v Switzerland (2004) 38 EHRR 17. (See: David Hewitt, Whatever Happened to Winterwerp? Solicitors Journal, 10 May 2002, p 436) It did not find favour with Lord Walker, who argued that purpose was irrelevant to the question whether confinement amounted to a deprivation of liberty: “If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement”. (Paragraph 44) This, though, was a minority view. The other three members of the Appellate Committee fell in behind Lord Hope and, as she had been in the Court of Appeal - and also, though for slightly different reasons, at first instance - the claimant was unsuccessful.
The possibility that what would otherwise be deprivation of liberty will be prevented from being so by mere good intentions might surprise, and possibly infuriate, the government. Though it could easily have done so, the ECtHR did not reach this conclusion in the ‘Bournewood’ case. There, the Court found that Article 5 was engaged – and had been breached – where Mr L, a man with autism, had been confined to a mental health hospital for three months and prevented from seeing his carers. The Court said this, and not much more, amounted to an assumption of “effective, unqualified control” over the man. (HL v United Kingdom (2004) 40 EHRR 761) Lord Hope did not refer to this aspect of the case.
Because of Bournewood, the government has introduced the Deprivation of Liberty Safeguards (DoLS), which from 1 April 2009 will allow incapable people to be deprived of liberty if certain forms of protection are in place.
It was accepted that the measures used upon Mr L had been in his best interests. If, as the House of Lords has just done, the ECtHR had allowed that fact to prevent Article 5 being engaged, the government would neither have lost the Bournewood case nor been forced to introduce the DoLS. As it is, the DoLS will be relevant where an incapable person is deprived of liberty in his own best interests. Yet if strict observation of best interests will prevent there being a deprivation of liberty, there will be no patient to whom the DoLS apply. Could it be that even before they have come into force, the DoLS are otiose?
And the implications of their Lordships decision go further. If, no matter how constraining they might be, measures taken in the best interests of a patient will never engage Article 5, what is to become of people with mental disorder who are detained under the Mental Health Act? How are they to be protected against unlawful compulsion and what are we to make of the dozens of cases such people have brought, and sometimes won, claiming an impermissible breach of the right to liberty? This baleful question first arose after HM v Switzerland was decided in Strasbourg. It seems it must now be asked again, only this time, much closer to home.
Tuesday, 20 January 2009
The second edition of my book, The Nearest Relative Handbook, is now available.
The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.
The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.
The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.
Review of the first edition were very favourable. They include:
An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School
This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law
The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre
There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal
The second edition of The Nearest Relative Handbook is published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here