Download The Impact of Unlawful Actions on Mental Health Law: Judicial Review and Habeas Corpus and more Schemes and Mind Maps Acting in PDF only on Docsity!
The Consequences of Acting Unlawfully
The Consequences of
Acting Unlawfully
Kris Gledhill*
The Mental Health Act 1983 provides for detention and also for treatment which would otherwise be an assault. As such, it allows for interference with the fundamental rights to liberty and to self- determination. Particularly as it does so in the context of a branch of medicine which is often highly subjective, it is hardly surprising that litigation is occasionally resorted to by those affected who wish to challenge the legality of what is occurring to them.
The framework for this litigation has developed, spurred on in particular by the growth of public law and human rights law. As a result, mental health professionals have to be familiar not just with the court-machinery which is central to the Mental Health Act 1983 (which provides for the Mental Health Review Tribunal to determine the legality of the ongoing detention of a patient, and refers the issue of the displacement of a nearest relative to the county court) but also with the courts which deal with questions of public law (in particular the Administrative Court) and the civil litigation courts.
Public Law
The last quarter of the Twentieth Century saw a significant growth of public law, with an increased jurisdiction assumed by the High Court to intervene in the decisions of inferior courts and decision-makers by way of the process of judicial review. Mental health law was caught in this trend; for example, decisions of Mental Health Review Tribunals^1 but also decisions of mental health professionals to “section” or renew the detention of a patient^2 were subject to challenge by way of judicial review.
Mental health law has been at the forefront of the further invigoration of public law in the era since the Human Rights Act 1998 was ushered in on 2 October 2000. The first declaration of incompatibility to stand was made in relation to the powers of a Tribunal under ss72 and 73 of the
* Barrister specialising in public law, particularly mental health and prison law; editor of Mental Health Law Reports and Prison Law Reports; regular lecturer on mental health and prison law. 1 Encouragement was given to use judicial review rather
than the statutory method of special case stated under s78(8) of the Mental Health Act 1983: see Bone v MHRT [1985] 3 All ER 330. 2 R v Hallstrom ex p W (No 2), R v Gardner ex p L [1986] QB 1090.
Journal of Mental Health Law February 2004
1983 Act^3 and two further declarations have so far been made^4. In addition, the first action taken by a Minister to amend a primary statute by way of delegated legislation in the form of a Human Rights Act Remedial Order was also a mental health matter.^5
Judicial Review Since the Human Rights Act 1998
The further growth of challenges to the legality of decisions made in a mental health law context can be traced to three major developments arising from the Human Rights Act 1998. The first is the development of the test for intervention by way of judicial review. Traditionally, a judicial review would only succeed if there were significant procedural defects in the decision-making process or the decision was irrational (the so-called Wednesbury unreasonableness test^6 ); however, the courts now have to be more willing to examine the merits of a decision which interferes with fundamental rights guaranteed under the European Convention, by reviewing not just whether a decision maker exercised a rational judgment but also whether a proportionate balancing decision was reached^7.
The second development is linked and is the extended scope of fact-finding (and hence evidence in the course of hearings) in judicial review proceedings. The case which made plain that this was necessary in order to comply with the requirements of Article 6 of the European Convention, the right to a fair trial in relation to civil rights, was R (Wilkinson) v Broadmoor and Others^8. In essence, the ruling here was that where fundamental rights are involved, the courts do not simply review the rationality of a decision but make their own judgment, including determining as between competing medical opinions as to whether a particular form of treatment would breach Articles 2, 3 and 8 of the Convention (which would require the doctors to attend and be cross-examined). This was necessary to provide compliance with the right to a fair trial under Article 6.
The case of Wilkinson was an interlocutory appeal on a point of practice, namely whether it was necessary for doctors to attend to give evidence. It has been applied in practice in the case of R (N) v A Hospital and Others^9. In this case, a High Court judge made the determination on contested evidence of whether a particular course of treatment should be allowed in light of the patient’s rights under Article 3 and Article 8, which turned on issues of the correct diagnosis of the patient’s condition and whether forced depot medication was in a patient’s best interests. Although in upholding the decision the Court of Appeal^10 noted that live evidence would not always be essential, the jurisdiction of the court to make the contested decision is clear.
The same fact-finding jurisdiction has been used in another mental health law context, namely the issue of whether a nearest relative had objected to an application being made to admit a patient
3 R (H) v London North and East Region Mental Health Review Tribunal [2002] QB 1, [2001] Mental Health Law Reports 48 4 The regime for the release of life sentence prisoners transferred to hospital under ss47 and 49 of the 1983 Act (R (D) v Secretary of State for the Home Department [2003] Mental Health Law Reports 193 – see now s295 Criminal Justice Act 2003) and the absence of a provision to allow a patient to change his or her nearest relative under s29 of the Act (R (M) v Secretary of State for Health [2003] Mental Health Law Reports 348
5 The Mental Health Act 1983 (Remedial) Order 2001, SI 2001 No 3712 6 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 7 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 8 [2002] 1 WLR 419, [2001] Mental Health Law Reports 224 9 [2003] Mental Health Law Reports 138 10 [2003] 1 WLR 562, [2003] Mental Health Law Reports 157
Journal of Mental Health Law February 2004
One of the controversial areas of the law of Habeas Corpus is the power of the High Court to review the sufficiency of evidence on the basis of which a person is detained^19. In R v Board of Control ex p Rutty^20 , the High Court granted a writ of Habeas Corpus to secure the release of a person detained under the Mental Deficiency Act 1913 on the basis that the stipendiary magistrate who made the order did not have sufficient evidence that the patient had been “found neglected”, as required before a committal order could be made under the statute. A similar conclusion has recently been reached in R (Kenneally) v Snaresbrook Crown Court^21 , in which the release of a patient was ordered on the basis that the Crown Court judge had erred in finding that he had the jurisdiction to make a hospital order under s51 of the 1983 Act^22 , which requires that it be “impracticable or inappropriate to bring the detainee before the court”. The factual circumstances were that the patient was in the cells of the court, and it was his counsel’s request that s51 be invoked: however, the High Court held that the statutory language had to be construed restrictively, requiring a level of disablement such that it was inappropriate for the patient to be brought to court, and the judge had misdirected himself as to the law in using the power. There had been a parallel application for Habeas Corpus in case the time limit rules applicable to judicial review had caused a problem^23 , though this was adjourned when permission to bring the judicial review proceedings was granted with a time extension of just under 4 years^24.
Both Rutty and Kenneally involved what might be seen as procedural prerequisites for detention which were separate from the central medical question of whether the detainee suffered from a mental disorder of the necessary nature or degree. However, there is nothing in principle to prevent the jurisdiction of the High Court from being exercised in this regard. The Court has demonstrated that it is willing to review whether the prerequisites of the jurisdiction to detain are made out, and is willing to enter into the arena of medical disputes. Consequently, the existence of an “unsound mind” of the necessary nature or degree, established by adequate evidence^25 is a matter fit for judicial determination.
Those detained under the civil provisions of s3 of the 1983 Act are the subject of a public law decision which is open to challenge in the High Court; the right to apply to a Mental Health Review Tribunal is not an alternative remedy (it being a principle of judicial review that other avenues of appeal are exhausted first) because the Tribunal considers not the lawfulness of the original detention but the position of the patient at the date it meets. There is the practical fact that it might be possible to have a Tribunal consider the case more quickly than the High Court, which will have to allow time for the relevant medical evidence to be compiled and for the case to be listed.
19 See Sharpe, The Law of Habeas Corpus, 2nd Ed (OUP 1989) pp79–85; it is a jurisdiction clearly accepted in extradition cases 20 [1956] 2 QB 109 21 [2002] QB 1169, [2001] Mental Health Law Reports 53 22 s51(5) and (6) provide that if a transfer direction has been made in respect of a remand prisoner, it is impracticable or inappropriate to bring the detainee to court, and there is evidence from 2 doctors that the transferred prisoner is suffering from mental illness or severe mental impairment making detention in hospital for medical treatment appropriate, the court may make
a hospital order without convicting him if it is proper to do so; a restriction order may also be imposed. 23 Judicial review proceedings have to be commenced promptly and in any event within 3 months of the decision challenged: see CPR 54.5. However, the Court may extend the time limit if there is good reason for delay 24 See the note to the report of the case in [2002] Mental Health Law Reports 53 25 In other words, the criteria for deprivation of liberty under Art 5(1)(e) of the European Convention as interpreted in Winterwerp v Netherlands (1979) 2 EHRR 387, which is reflected in ss3 and 37 of the 1983 Act
The Consequences of Acting Unlawfully
In relation to those detained under a s37 hospital order by the Magistrates Court, there is a right of appeal to the Crown Court in the first instance, which has jurisdiction to examine the merits of the making of an order; the ruling of the Crown Court on appeal can be taken to the High Court. In relation to those detained under s37 by the Crown Court following a trial on indictment, the appeal route is to the Court of Appeal rather than by way of judicial review^26 : the fact that there is a prospect of appeal on the merits supports the contention that the High Court, when it has jurisdiction by way of judicial review, should be willing to examine whether there is proper evidence that a person is of “unsound mind” so as to require detention.
Other Public Law Cases
In addition to the jurisdiction of the High Court in judicial review and habeas corpus cases, mental health practitioners should also be aware of other courts which may take decisions. In particular, the Family Division of the High Court has jurisdiction to make declarations as to the lawfulness or otherwise of treatment plans^27. It should also be noted that inquests are potentially of much greater significance in instances where there are deaths arising from inadequate care and treatment. Although the rules relating to inquests do not generally allow findings of neglect^28 , the obligations which arise under Article 2 of the European Convention to investigate deaths which have occurred when a person is in the custody of the State mean that it is permissible to return a finding of systemic neglect (as opposed to neglect by an individual) when to do so will allow compliance with this procedural duty under Article 2 and reduce the risks of repetition of a death in similar circumstances: R (Middleton) v HM Coroner^29.
Private Law – Potential Tort Actions and Damages
Mental health law challenges to the lawfulness of a particular decision may also involve challenges framed in private law. The usual remedy available in such circumstances is a claim for damages, although injunctions to prevent or occasionally compel certain steps may be involved. (An injunction can be granted in judicial review proceedings, which can also include a claim for damages. Proceedings may be transferred from the Administrative Court to the Queen’s Bench Division of the High Court once the public law element of the claim has been determined^30 .)
26 The High Court’s jurisdiction by way of judicial review is excluded by s29 of the Supreme Court Act 1981 27 As a recent example of this, see In re W [2002] Mental Health Law Reports 411, in which it was declared that a psychopathically disordered prisoner was competent to refuse treatment in relation to various self-inflicted wounds which he was trying to make septic as part of a campaign to be transferred from prison to hospital.
28 R v HM Coroner for North Humberside and Scunthorpe ex p Jamieson [1995] QB 1 29 [2003] QB 581, [2002] Prison Law Reports 100. 30 See CPR 54.3(2), which indicates that a claim for judicial review may involve a claim for damages, though not as the only remedy; see also s31(4) of the Supreme Court Act 1981. CPR 54.20 provides that the Administrative Court may direct the transfer of a case. Note, however, that a transfer will not always occur and the judge may make an immediate assessment of any damages.
The Consequences of Acting Unlawfully
(iv) The common law allows detention in a situation of necessity of a person of unsound mind who is a danger to himself and others; necessity requires a manifest danger to the patient or others: see Black v Forsey^35.
In addition to the procedural requirements, there is the question of the substantive merits of the detention – ie, is the mental disorder such as to justify detention. The discussion above of the cases of Rutty and Kenneally applies in relation to the question of damages as well: the public law remedy which may result in an order for the release of the patient can be followed by a private law remedy in the form of damages.
The lawful authority to detain must be continuing. At this point, the issue of the merits becomes more important (though there are procedures to be followed, in particular compliance with s20 of the 1983 Act in relation to compulsory but non-restricted patients). For example, in R v Riverside Mental Health Trust ex p Huzzey^36 , an error made by the managers in considering whether to uphold a barring order made under s25 of the Act following an application to discharge by a nearest relative (in that they considered the s3 test rather than the additional dangerousness criterion in s25) rendered false the detention between that time and the patient’s release some 12 weeks later on the direction of a Tribunal, which in turn lead a jury to award him £24000 in compensatory damages and £2000 in aggravated damages^37.
The issue of the merits of detention is usually dealt with by the Mental Health Review Tribunal, and two issues frequently arise. First: if the Tribunal orders discharge and the patient is soon re- sectioned, is that lawful? As explained above, the answer is basically not unless there has been a change in circumstances^38.
The second issue is what happens when a Tribunal orders a deferred discharge but conditions are not met, leading to the continued detention of the patient. As it stands, if the impasse is because a professional judgment stands in the way, there is little that can be done in domestic law to force the discharge through: so, when a community responsible medical officer refused to take a patient, the courts did not intervene^39 ; equally, when a social worker would not approve a hostel, the courts did not intervene with what was held to be a rational judgment^40. There has been a development in the law in that, in relation to the deferred conditional discharge of a restricted patient, the Tribunal is able to be retain supervisory powers over the meeting of conditions and may modify them if it
35 1987 SLT 681. Note also there is a general common law power to detain to prevent a breach of the peace, and a now-statutory power to use reasonable force to prevent crime (s3 Criminal Law Act 1967); and necessity allows emergency medical treatment of incapable patients. The situation of patients covered by the case of R v Bournewood Community and Mental Health NHS Trust ex p L [1999] 1 AC 458 should also be considered; the decision of the European Court of Human Rights on this situation is awaited. 36 (1998) 43 BMLR 167 37 see Jones, Mental Health Act Manual, 8th Ed, 1– 38 This change in practice also has implications for the quality of reasons required by a Tribunal because those involved in the fresh process of sectioning the patient may not know what evidence was given to the Tribunal and why it discharged the patient: hence, the previous
view that the reasons of a Tribunal could be limited as they were given to an “informed audience” which know the evidence presented and the arguments made is no longer adequate. See R (H) v Ashworth Hospital [2003] 1 WLR 127, [2002] Mental Health Law Reports 314. 39 R (K) v Camden and Islington Health Authority [2002] QB 198, [2001] Mental Health Law Reports 24 40 R (W) v Doncaster City Council [2003] EWHC 193 (Admin): the judge granted permission to appeal, and one of the issues raised is whether a breach of the Convention deprives the detention of its lawfulness for the purposes of the tort of false imprisonment and, if so, whether it is the detaining hospital or the after-care authorities who are liable. The appeal is due to be heard in March 2004.
Journal of Mental Health Law February 2004
is not possible to persuade those involved to put the conditions into effect, though arguments remain as to whether this amounts to compliance with Article 5(4) of the Convention, the need for a Court to be able to order release if the merits of detention is not made out^41. The European Court has held that the absence of powers to ensure that a deferred conditional discharge is put into effect without unreasonable delay amounts to a breach of the Convention^42.
The issue of damages in this context is made plain by the fact that Article 5(5) of the Convention requires a right to compensation for those detained in breach of Article 5 of the Convention^43.
One final point to mention here is the effect of s139 of the Mental Health Act 1983, which in essence provides a defence for actions purportedly done under the Act in the absence of bad faith or the lack of reasonable care, except in relation to actions against the Secretary of State or a health authority or trust: the fact that this imposes a fault requirement for actions brought by those who are or are alleged to be mentally disordered in what is otherwise a strict liability tort may raise arguments under Article 14 (prohibition on discrimination). Although the more restrictive provisions of the predecessor of s139 was upheld in Ashingdane v UK^44 , this was on the basis that there was not an improper breach of the right of access to a Court guaranteed by Article 6 of the Convention and it does not appear to be have been argued that there was a breach of Article 14.
2. Assault
The cases of Wilkinson and N make it plain that detention under the Mental Health Act 1983 does not necessarily authorise the imposition of such treatment as the Responsible Medical Officer indicates should be administered. There are some statutory procedural hurdles to overcome in certain situations (including use of medication for more than 3 months): see ss56ff of the Act. However, even if the statutory pre-requisites have been met, including approval from the Second Opinion Appointed Doctor, the matter may be litigated if there is a proper argument that the proposed treatment is not authorised by the statute or is not in the best interests of the patient. It has always to be remembered that the fact that there is authority to treat against the wishes of the patient does not mean that it will necessarily follow: see, for example, para 16.11 of the Code of Practice issued under s118 of the 1983 Act.
Typically this sort of dispute will be based on arguments that the patient has been misdiagnosed, or that the nature or degree of the illness does not require a course of treatment as invasive as that proposed. The role of the Court is to ensure that Articles 3 and 8, and perhaps Article 2 in some circumstances, are respected: (i) Article 3 requires that treatment is convincingly shown to be a medical necessity; (ii) Article 8 requires that the treatment be a proportionate response^45.
The other issue which may arise in relation to treatment is whether a particular treatment is medical treatment for the purposes of the Act: in this regard, it should be noted that “medical treatment” is widely defined in s145 of the Act and that “treatment for mental disorder” can
41 R (IH) v Home Secretary [2003] QB 320, [2002] Mental Health Law Reports 87. This decision was upheld by the House of Lords ([2003] UKHL 59), which unfortunately declined to grapple with the important question of whether the community psychiatrist is a public authority and so bound by the Human Rights Act 1998 to act in a way which does not breach Article 5.
42 Johnson v UK (1999) 27 EHRR 296 43 This includes the failure to have a speedy review, as required by Article 5(4): see below. 44 (1979) 2 EHRR 387 45 See Herczegfalvy v Austria (1993) 15 EHRR 437 as applied in Wilkinson and N.
