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One of the most concerning issues our client’s raise with us is respect for their human rights, and are these being violated by their detention and treatment under the Mental Health Act (MHA).

In order to address this we have to look at the relationship between the European Convention of Human Rights (ECHR), the Human Rights Act 1998 (HRA), and the MHA.

The Articles of the ECHR are:

Article 2 | Right to life
Article 3 | Anti-torture and inhumane treatment
Article 4 | Anti-slavery
Article 5 | Right to liberty and security of the person
Article 6 | Right to a fair trial
Article 7 | Anti-retrospective conviction
Article 8 | Right to respect for private and family life
Article 9 | Right to freedom of thought, conscience and religion
Article 10 | Right to freedom of expression
Article 11 | Right to freedom of assembly and association
Article 12 | Right to marriage
Article 13 | Right to an effective remedy
Article 14 | Anti-discrimination

The HRA brings the ECHR into the mainstream of our law.  The HRA covers acts by public authorities.  Section 6 (HRA) sets out that it is unlawful for a public authority to act in a way that  is incompatible with a convention right.  This is very powerful language.

All UK legislation is has to be compliant with the ECHR.  The MHA is ‘statute’ law, which means it is law passed by Parliament.  With the statute comes a secondary piece of legislation, the Code of Practice to the MHA (the Code).  The Code is the guidance as how the law is applied; however, not following it could be unlawful.

The case of R (Munjaz) v Mersey Care NHS Trust and others, House of Lords, October 2005 addresses the considerable importance of the Code.  The judgement states that although the Code is guidance, it must however be taken into account.  If the Code is not followed there must be documented reasons as to why it has not been followed.  E.g. It may be possible to have a policy at variance from the Code, but it must be demonstrated that the Code has been considered and there are cogent reasons for the variance. (As in Munjaz)

If the Code is not followed, the decision maker (the person responsible for applying the Code/MHA at that time) could be acting unlawfully. Sadly, in our experience, many professionals have either never read the Code or if the have, there is no evidence that they have applied it.  If they have not followed the code and they have recorded their reasons why they have not followed the code, the reasons could be subject to challenge.

The introduction to the Code lists the people to whom it is addressed (Figure i – Registered Medical Practitioners, Approved Clinicians, managers and staff of providers, Approved Mental Health Professionals, other professionals providing treatment, and Local Authorities and their staff) and states (paragraph V) the people to whom it is addressed ‘must have regards to the Code’ and that it is ‘important that these persons have training on the Code to ensure they that they are familiar with it requirements’.  Additionally it notes (paragraph VII) that ‘The Code should assist in the Care Quality Commission and others responsible for inspecting and monitoring the quality of such services, including commissioners, local authorities, general practitioners and the Tribunal’.

Judicial Review (JR) is the process which allows challenges to decisions (or lack of decisions) made by a public body.  It is made by way of an application to the Administrative Court to review the process and reasons used when making the decision in question.

Possible grounds for JR:

(a) Unlawfulness – E.g. The public body does not have the power to make the decision, or they have not made a decision they are legally obliged to make;

(b) Unfairness, E.g. The decision must be impartial, or cannot amount to an abuse of power; and

(c) Irrationality – ‘Wednesbury’ unreasonableness – The decision must not be so unreasonable that no other authority would reasonably come to that decision.

When considering human rights and the MHA, the main articles that are engaged are Articles 5, 6 and 8.

Article 5 – no-one shall be deprived of their liberty save by a ‘procedure prescribed by law’.

Article 5 is an absolute/non-qualified right, which means that a public authority can never justify breaching that right.

The MHA contains the ‘procedures prescribed by law’ by which a person can be detained (deprived of their liberty).  The Code of Practice is the guidance for decision makers as to how to apply that law.  It therefore amounts to a clarification of the ‘procedures prescribed by law’.

When using the procedures provided by law, the person exercising these powers is, in effect, an ‘agent of state control’.  For example, if a person “P” was to be detained under Section 3 MHA, the AMHP making the application and the hospital managers who accept the application, would be the agents of state control as they are responsible for using the procedure prescribed by law to deprive “P” of their liberty.

Article 6 – In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law

Article 6 is also an absolute right.

A person is detained under MHA by an agent of state control, has to have access to an appeal process whereby an independent body reviews their case. This is known as the First Tier Tribunal or Mental Health Review Tribunal (in Wales).

Article 8 – The right to respect for their private and family life, home and correspondence

Article 8 is a qualified right and, as such, this right may be limited but only if the decision is lawfully.   Any decision must have regard to the balance that has to be struck between the competing interests of individual autonomy and the legal justification for compulsion.  The Code gives guidance on what procedures or treatment and limitations can be placed upon people whilst detained under MHA.

Chapter 8 of the Code covers Privacy, Safety and Dignity.

All detaining authorities must have policies in place where they are going to place limitations on someone’s Article 8 rights.  However, blanket restrictions (policies that place limitations on groups of people rather than individuals) should be avoided (Code 8.5-8.9), unless they can be justified as necessary and proportionate responses to risks identified for particular individuals. The impact of a blanket restriction on each patient should be considered and documented in the patient’s records.

If a patient is on a hospital ward and are told they are not allowed their mobile phone because it is against ward policy, it should be recorded in their notes how it is justified that this policy applies to them, and the impact that restriction would have on them.

Probably the most common situation clients raise with us at present is when they are being placed far away from their home area because of lack of local beds, thus impacting on the ability of family and friends to visit them and maintain social contact whilst they are detained in hospital.  This impacts on their right to family life, and thus puts a limitation on this right.

Chapter 14.81 of the Code states ‘In order to promote a patient’s recovery, NHS commissioners and providers should work together to take steps, with appropriate input from section 12 doctors and AMHPs, to place individuals as close as is reasonably possible to a location that the patient identifies they would like to be close to (e.g. their home or close to a family member or carer). This should take account of any risk assessment undertaken, the availability of services which can meet the patient’s individual needs, any assessment in respect of the likely duration of the patient’s stay, and any other factors raised by the patient and their family. The location of the placement, and considerations relevant to that decision, should be monitored and reviewed regularly. Where secure care is needed further issues become relevant.  This will help to facilitate effective discharge and after-care planning (see chapters 32 and 33).’

When we look at the impact of Munjaz and the fact that the Code is guidance and must be followed unless there are recorded reasons why it cannot/should not be followed, when ‘P’ is placed away from their area, there has to be clear recorded reasons as to why this is.  If those reasons are unlawful, unfair or irrational they could be subject to Judicial Review, i.e. legal challenge.

These reasons should be recorded in the patients notes, and anyone looking into these issues/supporting ‘P’ to look into these issues would first check what they were.  If they were not the next step would be to contact the hospital managers and ask why the Code is not being followed.  Once you have the reasons consideration can be given as to whether there are grounds for a Judicial Review. In our experience, very often this is not done.

By using both the MHA and the Code, i.e. following the procedure prescribed by law and the guidance, the law is applied correctly, not only are the agents of state control protected, but ‘P’s rights are fully protected.

Jenny Oxton

Graduate Member of ILEX



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