Whose consent?

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 [2009] 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.

Whose liberty?

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 [2009] 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.

Seconds out ...

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

What is a public place?

Where a person who is in a public place appears to be suffering from mental disorder, section 136 of the Mental Health Act allows him to be arrested by a police constable and detained for up to 72 hours in an appropriate place of safety.

It is hard to find definitive statistics on section 136. The Mental Health Act Commission has suggested that between 2002/3 and 2003/4, the power was used 4,450 times, with patients detained either in hospital or in a police station. (MHAC, 2006, In Place of Fear? Eleventh Biennial Report, 2003-2005, paragraph 4.165 and figure 76) The Independent Police Complaints Commission, however, has calculated that in 2005/6, patients detained under section 136 were held in police cells on 11,517 occasions. (Maria Docking et al, September 2008, Police Custody as a “Place of Safety”: Examining the Use of Section 136 of the Mental Health Act 1983, IPCC Research and Statistics Series: Paper 11, pages 10 & 11)

Because the concept of a public place is used in a wide variety of statutes, the cases it produces are rarely collected together, and as a result, it is hard to know quite what the law permits.

The new Reference Guide to the Mental Health Act 1983 says that a ‘public place’ is “any place (whether indoors or outdoors) to which the public have access, whether by right, by explicit or implied permission, on payment, or otherwise.” (Paragraph 30.17). Because of the courts, however, we also know: that the grounds of a bail hostel have been held not to be a public place. (Harriott v DPP [2005] EWHC (Admin) 965) The contrary may be true both of the upper landing and of a communal balcony in a block of flats. (Knox v Anderson (1983) 76 Cr App R 156; Carter v Metropolitan Police Commissioner [1975] 1 WLR 507)The front garden of a private house will not usually be a public place, (R v Edwards (1978) 67 Cr App R 228) even if it is so small that someone standing in it could inflict harm on a pedestrian on an adjacent pavement. (R v Leroy Lloyd Roberts [2003] EWCA Crim 2753) A car park is a public place, at least during licensing hours, (David Lewis v DPP [2004] EWHC (Admin) 3081) and, even if it is said to be for customers only, if it is attached to commercial premises and accessible from a public place. (May v DPP [2005] EWHC (Admin) 1280) Finally, a private driveway shared by neighbouring private properties is not a public place; members of the public who use it do so as visitors rather than as members of the public. (R v Bogdal [2008] EWCA Crim 1)

It is felt that sometimes, where a person with mental disorder is found in a private place, police constables will attempt to entice him into a public place simply so that the section 136 power can be used. The standard texts say that such a tactic would be unlawful, but a brand new case suggests that it is not.

In that case, a police officer was held to have acted lawfully where he arrested a woman for being drunk and disorderly in a public place, having physically escorted her from a garden to a private footpath. The High Court accepted that the constable had been attempting to reach a negotiated conclusion that would have been in the woman’s own interests, and that he was not motivated by the desire to justify an arrest for an offence that could only be committed in a public place. The High Court said he could properly be said to have acted in conformity with generally acceptable standards of conduct. (McMillan v CPS [2008] EWHC (Admin) 1457)

In order to understand the limits of the section 136 power, practitioners will have to look beyond the Mental Health Act, which was responsible for only one of the cases mentioned above. The other cases were brought under statutes as diverse as the Public Order Act 1936, the Prevention of Crime Act 1953, the Criminal Justice Act 1988, the Road Traffic Act 1988 and the Dangerous Dogs Act 1991. Conventional guidance is rarely so diverse as to embrace all these sources.

What is vulnerable?

That is likely to be one of the hot questions of the next few months. It has been posed most recently by the Department of Health, which is reviewing adult protection guidance published in 2000. (Department of Health and Home Office, October 2008, Safeguarding Adults) At the moment, the guidance – and the safeguards to which it gives access - relate solely to ‘vulnerable’ adults. But what does that mean?

Vulnerability
The notion of vulnerability precedes the adult protection guidance. It is used in the Care Standards Act 2000, for example, and also at the heart of the special measures available to certain witnesses in criminal proceedings. (Youth Justice and Criminal Evidence Act 1999, section 16)

The guidance of 2000 is contained in the No secrets document. It says that a vulnerable adult is one who needs community care services because of disability, age or illness; and who cannot take care of himself, or protect himself against significant harm or exploitation.” (Department of Health and Home Office, 2000, No Secrets: Guidance on Developing and Implementing Multi-agency Policies and Procedures to Protect Vulnerable Adults from Abuse) Such a person might expect to be protected by a comprehensive ‘inter-agency’ framework.

There is concern, however, that this framework is more restricted than it should be, and that the problem is one of definition.

The House of Commons Health Committee, for example, says No secrets should not be confined to people requiring community care services, and that it should also apply to old people living in their own homes without professional support and anyone who can take care of themselves. (House of Commons Health Committee, 2004, Elder Abuse, Second Report of the Session 2003-04, Volume 1, HC 111-I, paragraphs 8 & 14)

This echoes the Association of Directors of Adult Social Services (ADASS), which has argued that ‘vulnerability’ “seems to locate the cause of abuse with the victim, rather than placing responsibility with the acts or omissions of others.” (ADASS, 2005, Safeguarding Adults: A National Framework of Standards, page 5)

As the new consultation document notes, there is “a broad belief that the definition does need revision, but no clear agreement on how this revision may take place.” (Department of Health and Home Office, October 2008, op cit, chapter 9) And the Law Commission has recently weighed into the debate. As part of a much wider review of adult social care law, it says it wants to look for itself at the notion of vulnerability. (Law Commission, November 2008, Adult Social Care: Scoping Report, paragraphs 4.280-4.293)

Alternatives
So, what are the alternatives? The Law Commission speaks favourably of the Safeguarding Vulnerable Groups Act 2006, which, it says, understands vulnerability “purely through the situation an adult is placed [in]”. (Law Commission, 2008, op cit, paragraph 4.290) Some have argued, however, that it would be better to abandon the notion of vulnerability and instead, seek to protect people who are simply at risk.

That, certainly, is the purpose of legislation recently enacted in Scotland. The Adult Support and Protection (Scotland) Act 2007 covers people who “(1) are unable to safeguard their own well-being, property, rights or other interests; (2) are at risk of harm; and (3) because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.”

ADASS, too, supports the use of risk as the keystone of adult protection, although its definition differs from the one used in Scotland. It says an adult at risk is one “who is or may be eligible for community care services” and whose independence and wellbeing are at risk due to abuse or neglect. (ADASS, 2005, op cit) This reference to community care need not fall foul of the Commons Health Committee, however, for ADASS says it includes “those people who are assessed as being able to purchase all or part of their community care services but whose need – in relation to safeguarding – is for access to mainstream services such as the police.” (Ibid)

It remains to be seen what the adult protection review will yield, and which notion the government will choose. But its task might be even more important than the consultation document suggests.

The stakes
With the coming of the Mental Capacity Act 2005 and the creation of a new Court of Protection, the High Court has lost the work it used to do with incapable people. Recently, however – and perhaps not coincidentally - it has set about transforming its inherent jurisdiction so as to offer protection to what it calls ‘vulnerable adults’. It proposes nothing less than the regulation of “everything that conduces to [their] welfare and happiness”. (Re SA (Vulnerable adult with capacity: Marriage) [2006] 1 FLR 867)

Conclusion
Adult protection is too important a task to be scuppered by questions of nomenclature. Everyone concerned needs to know precisely when the safeguards will kick in; when, it seems, an adult will be vulnerable. And the apparent willingness of the High Court to supplement the No Secrets guidance with real, enforceable rights means that as far as such people are concerned, the stakes have never been higher.

A real and immediate risk: clinical negligence and the right to life

Where health services and practitioners face claims under the Human Rights Act (HRA), they will usually have to show that they did all that could reasonably be expected of them.

That was the decision in a case involving a woman with paranoid schizophrenia, who was able to leave the hospital in which she was detained, walk two miles to a railway station and throw herself in front of a train. (Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74)

The woman’s daughter wishes to bring proceedings against the NHS trust that manages the hospital. She says the trust breached her mother’s right to life under article 2 of the European Convention on Human Rights. She is unable to bring proceedings under either the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Accident Act 1976, and therefore chose to pursue her claim via the HRA. Ultimately, she will have to establish that she is a ‘victim’ of the alleged breach, but for present purposes, that issue was not in play.

In a judgment delivered on 10 December 2008, the House of Lords said the daughter’s claim could proceed to trial, and it gave guidance as to the standard the trust will have to meet if it is to defend the proceedings successfully.

Their Lordships said the effect of article 2 is to impose two duties upon health bodies such as NHS trusts.

The first duty is to protect the lives of patients. Hospital trusts must ensure they employ competent staff, who are trained to a high professional standard, and adopt safe systems of work. If, for example, there was no proper system for supervising mentally ill patients - and if, as a result, a patient was able to commit suicide - the trust would have violated his right to life.

Even where there are competent staff and safe systems, of course, an individual doctor or nurse might act negligently and thereby cause a patient’s death. In that situation, the practitioner would be personally liable in damages. The health body might also be vicariously liable for the practitioner’s negligence, but it would not have breached article 2, because it had done all that the article requires of it to protect the patient’s life.

Their Lordships said the second duty imposed by article 2 is operational in nature and more specific than the first one. It arises only if members of staff know or ought to know that a particular patient presents a ‘real and immediate’ risk. In that circumstance, article 2 requires staff to do all that can reasonably be expected to do to protect the patient from the risk. If they fail in this regard, not only will they and the health body be liable in negligence; there will also be a violation of the obligation under article 2 to protect the patient’s life. It was accepted, however, that resources are not unlimited, and their Lordships said that in attempting to fulfil their obligation to a patient, practitioners need not behave any more cautiously than they were already persuaded to do by the ordinary law of negligence.

Traditionally, of course, the right to life has most often been engaged by deaths occurring in custody, with little or no distinction being made between prison and police custody and detention under the Mental Health Act. One judge, however, suggested that article 2 might extend further than that.

Baroness Hale – who, as well as being a senior judge, is also a noted mental health law expert – said she found it difficult to distinguish between compulsory hospital patients and those on formal leave, and also between detained and informal patients, and between them and the incapable patients who, from next April, will be subject to the Deprivation of Liberty Safeguards. All of them, she implied, might now be entitled to the protection of this special duty of care.

The primary function of this decision is to clarify the obligations imposed by the Human Rights Act: generally, it is unlikely to impose upon health care services and practitioners greater obligations than they already owed. But the decision does acknowledge a special duty in some circumstances, and in time, we may conclude that its greatest novelty was to extend those circumstances and, therefore, the number of patients protected by article 2.

Nearest, dearest

The new Mental Health Act will change the way we see the nearest relative.

Now the Mental Health Act has been amended, it will provide new systems for the selection – and most importantly, the removal – of a patient’s nearest relative.

Background
Where a person has mental disorder, her nearest relative (NR) has firm powers and entitlements: to apply for her to be detained under the Mental Health Act 1983 (MHA) or discharged, for example, and to be informed about an admission under section 2 or object to a proposed admission under section 3. The fact that a patient could not choose her NR was therefore a matter of great concern.

Some people even claim to have been abused by their NR, and the prospect of that person being involved in her life can prove detrimental to a patient’s mental health. Almost a decade ago, the Government acknowledged that this state-of-affairs might breach human rights, and it promised the European Court of Human Rights(ECtHR) that it would give patients more of a say in the selection of their NR. (FC v United Kingdom, Application no 37344/97, Decision of 7 September 1999; JT v United Kingdom, Application no 26494/95, Decision of 30 March 2000) The recent changes are an attempt to fulfil that promise.

Because the changes were so long in coming, practitioners began to devise ad hoc solutions of their own. Some, for example, argued that where abuse was alleged, it was “not reasonably practicable” to consult a NR about a patient’s proposed admission under section 3. (MHA, s 11(4)) Though this approach was considered dubious, it has been approved by the High Court. (E v Bristol City Council, [2005] EWHC (Admin) 74) But it is only a partial solution to the problem: even if he need no longer be consulted, a NR will continue to enjoy all the other powers and entitlements of the role. A more comprehensive solution was clearly required.

The changes
The amendments to MHA 1983 were made by the Mental Health Act 2007. The first one had little to do with the Government’s promise to the ECtHR. Since 1 December 2007, where two people are in a civil partnership, one has been the NR of the other. (MHA 1983, s 26(1)(a)) Most of the other changes, however, deal with the removal of the NR.

A patient can now apply to remove her NR (a right she shares with any relative of hers, any other person with whom she resides and an Approved Mental Health Professional). (MHA 1983, s 29(2)(a)-(c) & (za)) And there will be a new ground for displacement, which any applicant might use: the NR is “not a suitable person to act as such”. (MHA 1983, s 29(3)(e)) The amended Act does not say what this means.

That is not to say that ‘suitability’ has gone unmentioned. During the Parliamentary debates that produced the 2007 Act, the minister, Rosie Winterton, said, “we intend the idea of unsuitability to cover situations in which there is no effective relationship between the patient and the nearest relative, or where the relationship has broken down irretrievably.” (Hansard, 18 June 2007, col 1099) So, the circumstances in which a NR might be unsuitable will not be limited to abuse. In fact, the revised MHA 1983 Code of Practice says that an application might be appropriate if there is: "any reason to think that the patient has suffered, or is suspected to have suffered, abuse at the hands of the nearest relative (or someone with whom the nearest relative is in a relationship), or is at risk of suffering such abuse"; "any evidence that the patient is afraid of the nearest relative or seriously distressed by the possibility of the nearest relative being involved in their life or their care"; or "a situation where the patient and nearest relative are unknown to each other, there is only a distant relationship between them, or their relationship has broken down irretrievably." (Para 8.13)

Furthermore, the procedure by which a NR might delegate his functions to someone else is now contained in regulation 24 of The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008. (The old regulations have been repealed.) And there is new official guidance, which includes “Seven steps to identify the nearest relative”. (Department of Health, 2008, Reference guide to the Mental Health Act 1983, ch 33)

Patients now have some control over their nearest relatives and, in the most flagrant cases, can have them removed. But much of the law that pre-dated the recent changes remains in force. Though we might, for a while, become pre-occupied with the notion of ‘unsuitability’, we certainly haven’t seen the last of the question of ‘practicability’.

These changes are discussed in more detail in the second edition of my book, The Nearest Relative Handbook, which will be published by Jessica Kingsley Publishers in January 2009. More details may be found here.