WRITTEN EVIDENCE SUBMITTED BY DR ALAIN ZYSSET AND DR LEA RAIBLE
(MHB0011)
1. The Bill will remove the power for autistic people and people with learning disabilities to be detained under section 3 of the Mental Health Act on the basis of their autism or learning disability. However, no equivalent changes are made for autistic people and people with learning disabilities under Part 3 of the Act (so-called ‘forensic’ patients). Does this differential treatment raise any concerns under Article 14 ECHR when read with Article 5 or Article 8 ECHR?
Article 14 does not prohibit all differential treatments. Different treatment needs to be objective, which means that ‘forensic patients’ may be treated differently because of them being subject to criminal proceedings. Criminal proceedings are objective in the sense that patients and forensic patients are found in ‘relevantly different situations’. There is discrimination when there no ‘objective and reasonable’ justification for differential treatment (Molla Sali v. Greece [GC], 2018, para. 135; Fabris v. France [GC], 2013, para 56; D.H. and Others v. the Czech Republic [GC], 2007, para. 175; Hoogendijk v. the Netherlands, 2005).
Article 14 will however apply on the grounds of ‘other statuses’, as the core text of this Article makes clear. The proposed legislation introduces one of these ‘other statuses’ namely ‘forensic patients with autism and/or learning disabilities’. As result, discrimination occurs when the distinction between forensic and non-forensic patient is not made objectively. A person suffering from autism and/or learning disabilities should only treated as a forensic patient if detention (under Article 5 a) and b)) would also have been possible. If that is not the case, the differential treatment is not objective.
2. The Bill will allow conditions amounting to a deprivation of liberty to be applied as part of a conditional discharge (see Clause 33).
The new deprivation of liberty conditions, which amounts to a new type of conditional discharge, concerns persons who were detained and are now discharged. The Mental Health Act 1983 allowed for conditional discharge, but not for this type of conditional discharge. It is our understanding that clause 33 of the Mental Health Bill is to offer a legal basis for this a particular type of discharge which involves conditions that amount to a deprivation of liberty. There appears to be no ‘constant jurisprudence’ in the ECtHR’s case law on which safeguards, necessary or sufficient, apply in this particular case. Generally, ‘sufficient safeguards’ are procedural in nature. Therefore, while having a clear legal basis is necessary, it may not be sufficient to meet the ECtHR’s understanding of ‘sufficient safeguards’. Indeed, safeguards usually refer to the existence of a remedy, whether judicial or administrative. In other words, judicial review falls within this category, but it may not be the only one (MH v UK, 2013, para. 82).
Generally speaking, the principle of legal certainty is of utmost importance both to the application of Article 5 ECHR and any retrospective application of the law. Retrospective application can be a breach of the principle in cases where it is to the detriment of the individual in the human rights context. Under Article 5 specifically, retrospective application may be lawful if and only if benefits the individual, in the sense that it relaxes the conditions under which the person is discharged (regarding the duration aspect, see Cramesteter v. Italy, 2024, paras. 53-56). It follows that a retrospective application of provisions that are to the detriment of a restricted patient would likely fall foul of the article 5 requirement that detention (or conditions amounting to the deprivation of liberty) must be lawful.
3. The Mental Health Act 1983 and the Mental Capacity Act 2005 can both be applicable to the detention and treatment of patients with mental health conditions. Does the interaction between the two Acts raise any human rights concerns? In particular, are there any concerns that the law is insufficiently clear to fulfil the “prescribed by law” criteria in Article 5 ECHR, or to raise discrimination concerns under Article 14 ECHR?
Any interaction between discrete statutes creates difficulties in ascertaining whether a measure is ‘prescribed by law’, in particular the foreseeability sub-criterion under ‘prescribed by law’. As the fact sheet of the Court on Article 5 states, Article 5 (1) thus does not merely refer back to domestic law, it also relates to the ‘quality of the law’ which implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application. Factors relevant to this assessment of the ‘quality of law’ – which are referred to in some cases as ‘safeguards against arbitrariness’ – will include the existence of clear legal provisions for ordering detention, for extending detention, and for setting time-limits for detention; and the existence of an effective remedy by which the applicant can contest the ‘lawfulness’ and ‘length’ of his continuing detention (J.N. v. the United Kingdom, 2016, para. 77).
If we can offer some advice on how to improve this aspect, we would recommend that the Committee specifies the factors that establish which Act or provision takes precedence in cases where the two Acts conflict or diverge. A human rights approach would entail that the least restrictive option should prevail, and preferably that a provision to this effect is included in both statutes. The margin of appreciation doctrine would support the specification and would make unfavourable decisions by the ECtHR unlikely.
4. Other than the issues identified in the above questions, does the Bill raise any other issues under the ECHR or the Human Rights Act 1998?
The Bill (and Act) may not make sufficient provision regarding the requirements of Article 5(2) ECHR. As per the factsheet of the ECtHR, the words used in Article 5 (2) should be interpreted autonomously and, in particular, in accordance with the aim and purpose of Article 5 which is to protect everyone from arbitrary deprivations of liberty. The term ‘arrest’ extends beyond the realm of criminal law measures and the words ‘any charge’ do not indicate a condition of applicability but an eventuality which is taken into account. Article 5 § 4 does not make any distinction between persons deprived of their liberty on the basis of whether they have been arrested or detained. Therefore, there are no grounds for excluding the latter from the scope of Article 5(2) (Van der Leer v. the Netherlands, 1990, paras. 27-28).
While this applies to all individuals being detained, individuals suffering from several mental health conditions may not understand the grounds of their detention even if informed. It is therefore recommended, under a human rights-based approach, that authorities and medical professionals not only abide by their general duty to inform but strive to communicate in a way that takes into account each individual’s specific circumstances on a continuous basis. This means that an inability to inform early on in the detention period does not imply that the duty does not apply later on, and also may take a different from (e.g., information via a third party).
(Jan 2025)