Medical Law Review - vol 19, No. 4, 2011 Autumn pages 507-675

Medical Law Review, 19, Autumn 2011, pp. 507–513 doi:10.1093/medlaw/fwr031

EDITORIAL NICOLA GLOVER-THOMAS Professor of Medical Law, University of Liverpool

In the UK alone, at any one time, around one adult in six experiences symptoms of mental illness. One in four adults experience mental illness during their lifetime. Mental illness is the largest single cause of disability in our society. To place this in context, mental ill health is the largest single cause of disability in the UK, contributing almost twenty-three per cent of the overall burden of disease compared to about sixteen per cent each for cancer and cardiovascular disease.1 The economic (and social) costs of mental health problems in England and Wales have been estimated to be around £105 billion per year.2 Such figures imply that mental health services should be sufficiently robust and well-resourced in order to respond to such need. Yet, this is far from the truth. Much public attention on mental health care has tended to be negative: media interest is fuelled when failures in care provision emerge because of harm caused to unsuspecting ‘victims’ within the wider community. Failures in care standards tend to illicit a less pronounced public response. In many respects, the legislative frameworks in many countries that govern the provision of mental health care have limped along, far behind the medical and social developments in the field; legal reform has been entirely dependent upon the political will to engage with these issues. In England and Wales, the Mental Health Act 2007 amended the Mental Health Act 1983, which governs the compulsory hospitalisation and treatment of people with mental disorder; and represents the culmination of a protracted and controversial reform process which has spanned much of the last 15 years. This prolonged journey for law reform with a fairly unsatisfactory conclusion, has, unsurprisingly, tested both the political drive for change and the determination of broader lobby groups and activists to achieve what is seen as a more equal, and non-discriminatory governance framework for compulsory mental health care. In 2011, hope was once again reignited that

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Department of Health, Mental Health and Wellbeing (London, DoH 2011) ,http://www.dh.gov.uk/en/Healthcare/Mentalhealth/DH_209.. Department of Health, Mental Health Promotion and Mental Illness Prevention: The Economic Case (London, TSO 2011) ,http://www.dh.gov.uk/en/ Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/ DH_126085..

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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such political will remained, with the publication of a crossgovernmental mental health outcomes strategy—No Health Without Mental Health: A Cross-Government Mental Health Outcomes Strategy for People of All Ages.3 The focus of this strategy reflects a strong body of academic and stakeholder-led debate; the notion of ‘fusion’ is given primacy, giving equivalency to mental and physical ill-health, using a universal filter, such as capacity, to determine whether medical decisions should be made by those other than the patient. Mainstreaming mental health and the achievement of parity between mental and physical ill health is a key objective within the strategy. Also, of great importance is the strategy’s recognition that mental health is often dependent upon external factors, such as, where an individual lives, what occupation he or she has and how other systems, such as the criminal justice system, operate in conjunction with mental health provision. Clearly, this is a step forward and will, hopefully, be followed with the promised funding of £400 million over the next four years. This, along with clear indications at a European4 and international level5 suggest that some optimism is justified, in that mental health may no longer be regarded as a peripheral aspect of health care provision. This milieu of change in mental health, in terms of governance, attitudinal shifts, and a stronger mental health ‘voice’, sets the stage for this special issue which presents several papers that explore a range of issues relating to mental health; covering national, European and international perspectives. In the first article, Peter Bartlett provides an original evaluation of the vexed issue of the role of compulsion in treatment for mental disorder. He offers an in-depth examination of the ‘Wilkinson case’ and the opportunities since that have arisen to test the merits of this judgement. The paper seeks to reposition the ‘fusion’ idea within medical law discourse; that is, treating physical and mental illnesses equally, as grounded in the universal currency of patient consent. Bartlett’s starting point is the 2001 case of R (Wilkinson) v Broadmoor Special Hospital Authority,6 which created the potential for a 3

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Department of Health, No Health Without Mental Health: A CrossGovernment Mental Health Outcomes Strategy for People of All Ages (London, TSO 2011) ,http://www.dh.gov.uk/en/Publicationsandstatistics/ Publications/PublicationsPolicyAndGuidance/DH_123766.. See, the EU Charter of Fundamental Rights (see ,http://europa.eu/ legislation_summaries/justice_freedom_security/combating_discrimination/ l33501_en.htm. which offers a brief overview of the EU charter) and secondly, the new EU Patients’ Rights Directive (see ,http://ec.europa.eu/health/ ph_overview/co_operation/healthcare/docs/COM_en.pdf. ). See, the Convention on the Rights of Persons with Disabilities (CRPD) ,http://www2.ohchr.org/english/law/disabilities-convention.htm.. [2001] EWCA 1545.

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range of substantive questions surrounding compulsory treatment to be subjected to judicial scrutiny for the first time. The case initially provided hope that, through the Human Rights Act 1998 and the ECHR, meaningful substantive and procedural standards for compulsory psychiatric treatment might be developed. Bartlett takes the reader through the jurisprudence, looking particularly at compulsory psychiatric treatment and when it might be justified. In particular, the paper compares the ‘appropriateness’ standard for treatment for mental disorder under the mental health legislation in England and Wales with the ECHR requirement of ‘therapeutic necessity’. Bartlett further considers the requirements for appropriate procedure and legislative clarity, how the courts should best respond to disagreements among medical teams, and how the capacity and best interests of the detained person is woven into the care and treatment response. Wilkinson provided the opportunity to deliberate over the thorny issue of whether the administration of anti-psychotic medication in circumstances that were clearly within the legal parameters of the mental health legislation should necessarily always take place, despite clearly being treatment for mental disorder. As with several previous cases, significant judicial guidance and direction could have flowed from this. For example, the earlier decision of Reid v Secretary of State for Scotland7 presented the House of Lords with an opportunity to interpret and give definition to the treatability concept. The House of Lords did so by offering an extremely broad interpretation of ‘treatability’, so that it could include any treatment which alleviates or prevents deterioration in the symptoms of the disorder, not just the disorder itself. In so doing, Reid provided the legal authority to mental health decision-makers to use the full spectrum of their professional discretion when determining the need for treatment and its scope; raising the spectre of unwarranted detention. Likewise, the opportunity raised by the Wilkinson decision to establish clearer judicial guidance has proved to be a lost hope. Peter Bartlett argues that despite the limited developments following Wilkinson (only nine relevant decisions have been decided since Wilkinson in 20018), the issue of whether compulsory psychiatric treatment should always be deemed permissible in all cases where the mental health legislation applies remains an ongoing and crucial question. Indeed, it is surprising that this question has not emerged more 7 8

[1999] 1 All ER 481 (HL). PS, R (PS) v G [2003] EWHC 2335 (Admin); B, R (B) v SS [2005] EWHC 86 (Admin); R, (B) v SS [2005] EWHC 1936 (Admin); R, (B) v SS [2006] EWCA Civ 28); N, R (N) v M [2002] EWHC 1911 (Admin); R, (N) v M [2002] EWCA Civ 1789; JB, R (B) v Haddock [2005] EWHC 921 and [2006] EWCA Civ 961; Taylor, R (Taylor) v Haydn-Smith [2005] EWHC 1668 (Admin).

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frequently; it, perhaps, suggests that where authority is displayed, whether rightly or wrongly, those subject to the legislation accept treatment because they believe they must.9 Bartlett argues that this necessarily places at the heart of this issue the role of the ECHR, other public law standards, and the new United Nations Convention on the Rights of Persons with Disabilities (CRPD)10 to ensure human rights considerations remain prominent in the debate. The impact of the UN CRPD is the focus of the contribution by Bernadette McSherry and Kay Wilson who present the findings of a small empirical study exploring the contemporary perceptions of human rights and mental health law in New Zealand and Australia. McSherry and Wilson begin their analysis by tracing the development and influence of international human rights discourse on the shaping of mental health law frameworks within New Zealand and Australia,11 and beyond.12 In so doing, McSherry and Wilson evaluate the extent of the CRPD’s reach. Does it go as far as providing limitations on involuntary medical treatment through the requirement to develop supportive and facilitative mechanisms to aid decision-making by patients rather than relying on substituted judgement?13 Or indeed, is the CRPD’s reach so extensive that it can be justifiably argued that mental health law in toto should be abolished because of its discriminatory nature?14 This analysis draws on a comparative evaluation of the existing cultural human rights perspectives in several countries; and, asks whether these differences have influenced the broader impact upon mental health law development. It seems that for countries without an 9

For example, in Guenat v Switzerland, Application 24722, decision of 10 April 1995, 81 Dec. & Rep. 130, police officers ‘invited’ an individual whom they believed was acting abnormally to come to the police station. The Commission decided that his confinement in the police station was not a deprivation of liberty because the police did not exert physical force, and he remained free to leave. This decision failed to consider the person’s true circumstances and whether, in reality, he reasonably felt that his liberty was constrained. 10 See United Nations General Assembly, A/61/611 (6 December 2006). 11 H Watchirs, ‘Human Rights Audit of Mental Health Legislation – Results of an Australian Pilot’ (2005) 28(2) International Journal of Law and Psychiatry 99–125. 12 P Fennell, ‘Institutionalising the Community’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart 2010) 13–49, 16. 13 P Weller, ‘Supported Decision-Making and the Achievement of NonDiscrimination: The Promise and Paradox of the Disabilities Convention’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 85– 110. 14 T Minkowitz, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart 2010) 151–77.

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established human rights framework, such as New Zealand and Australia, an international instrument that directly addresses the human rights of persons with mental disabilities, such as the CRPD, may not be formally binding, but nonetheless serves as a very influential aid in establishing broad-based obligations to protect the rights of persons with disabilities on all signatory states. As such, these international instruments provide a new-found focal point for the development of a rights-based mental health discourse. McSherry and Wilson share their thoughts on the CRPD’s likely influence on law reform within Australasia. They are tentative about its overarching impact, suggesting that the changes brought about by the CRPD could be significant, if supported decision-making rather than substituted decision-making for individuals with mental illnesses was introduced, for the power relationship between providers and users of care would inevitably shift. The authors conclude that the CRPD has the potential to influence broader mental health debate in terms of how best to balance the needs of the patient with the wider needs of the community, without being disproportionately restrictive or giving the risk agenda too much leverage. The risk agenda, situated within mental health law in England and Wales, provides the basis of Nicola Glover-Thomas’ paper. The Mental Health Act 2007 brings to the fore the question of how far risk of harm to self or others should dictate the direction of mental health decision making. The policy underpinnings of the 2007 Act are a result of both significant social and political drive to push public protection to the heart of the mental health debate. The paper is informed by an empirical study which examined individual professional and institutional responses to the mental health legislation in relation to risk. As Glover-Thomas demonstrates, the way in which risk is understood and applied in practice by decision-makers largely determines how patients are dealt with within the legislative framework, but perhaps, more importantly, how their risk profile determines how they are perceived generally. Glover-Thomas uses, as her starting point, the concern that despite risk determination being the fundamental feature of the political drive towards mental health law reform, considerable difficulties exist in terms of grappling with what risk actually means in the practical context. Through the study, Glover-Thomas found that risk determination was largely a functional process, rather than one couched in hermeneutics, and that without adequate guidance decision-makers were using a variety of working definitions. The discussion brings to the fore the clear tensions that exist in the practical context: how to find equilibrium between enabling sufficient pragmatism to exist for

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decision-makers to use their professional judgement, while also, ensuring that effective rights protection15 can adequately function too.16 How this equilibrium is achieved; and how legal frameworks are formulated and implemented to facilitate this, is one of several questions taken up by Jean McHale in her discussion of whether mental health law and policy will become a major focus for EU policy and law in the future. With WHO Europe noting that mental ill health represents almost 20% of ill health in the WHO European region,17 the European context has become an acutely pressing issue; particularly given the widespread divergences in mental health practice across the EU. The paper provides a detailed overview of the approaches of law and policy in this area across the EU18 and considers just how influential it is in the development and implementation of mental health laws within member states. McHale acknowledges that EU law and policy surrounding mental health has until recently been fairly limited, in comparison to other areas of health provision. The question that McHale’s paper raises is, to what extent recent developments at EU level will change this and begin the process of creating an EU jurisprudential framework for mental health. The paper speculates as to the likely impact of these developments, by examining the passage of the EU Charter of Fundamental Rights post the Treaty of Lisbon and the EU Patients’ Rights Directive. These may, in some respects, raise the same possibilities as the CRPD (as discussed in McSherry and Wilson’s paper). Will these new EU developments force the creation of a universal European-pan approach to mental health provision with governance equivalency across member states? Or will instead, they offer a much more nebulous, yet equally useful role in developing broader policy directions and the creation of better care standards, as is likely to be the case for the CRPD? If this is achieved, it can only be perceived as a desirable outcome; with the possibility of realising a standardised EU-wide mental health care service with heightened visibility and debate regarding care and treatment of those with mental ill health. Such debate enhances patient rights, subjecting care and treatment provision to greater scrutiny and legal accountability. 15 16

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HL v UK 45508/99 [2004] ECHR 471. See generally, P Bartlett, ‘Civil Confinement’ in J McHale, P Fennell, R MacKay, P Bartlett, and L Gostin (eds), Principles of Mental Health Law (Oxford University Press, Oxford 2010). See also, Smirek v Williams [2000] 1 MHLR 38 (CA) at para 19. See further ,http://www.euro.who.int/en/what-we-do/health-topics/ noncommunicable-diseases/mental-health. and WHO, Mental Health: facing the challenges, building solutions—report from the WHO European Ministerial Conference (WHO, Geneva 2006). See further T Hervey and J McHale, Health Law and the European Union (CUP, Cambridge 2004).

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Collectively, these papers offer a multi-faceted perspective on a number of ongoing, key debates within mental health law, shedding light on the relevancy of these debates. It is clear from these papers that a stronger ‘mental health’ voice has been emerging, a ‘voice’ that has always tended to be engulfed by other, ‘sexier’ health issues and associated discourse. The political will to embrace mental health issues and to have cognisance of the serious impact of mental ill health on populations, particularly as populations age and face an increased prolificacy of organic brain disorders, has increased. Various steps have been and are being taken to respond to this; in terms of national level law reforms, EU developments, and international instruments, and together they may offer a global answer, at least, in terms of developing universal care and treatment standards and the promotion of best practice.

Medical Law Review, 19, Autumn 2011, pp. 514–547 doi:10.1093/medlaw/fwr025

‘THE NECESSITY MUST BE CONVINCINGLY SHOWN TO EXIST’: STANDARDS FOR COMPULSORY TREATMENT FOR MENTAL DISORDER UNDER THE MENTAL HEALTH ACT 1983 PETER BARTLETT Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, School of Law and Institute of Mental Health, University of Nottingham [email protected]

ABSTRACT Current English law has few controls on the involuntary treatment of persons detained under the Mental Health Act 1983. In 2001, R (Wilkinson) v. Broadmoor Special Hospital Authority provided some hope that, in conjunction with the Human Rights Act and the European Convention on Human Rights (ECHR), meaningful substantive and procedural standards for compulsory psychiatric treatment might be developed, but that hope has not been fulfilled. Using Wilkinson and the ECHR jurisprudence as a starting point, this article considers when, if at all, compulsory psychiatric treatment might be justified. In particular, it considers the difference between the ‘appropriateness’ standard of the English legislation and the ECHR requirement of ‘therapeutic necessity’, the requirements for appropriate procedure and appropriate legislative clarity, how the courts should deal with disagreements among treating physicians, and the relevance of the capacity and best interests of the detained person. Keywords: compulsory psychiatric treatment, compulsion, Herczegfalvy, Wilkinson, Mental Health Act 1983, best interests, mental capacity.

I. INTRODUCTION The Mental Health Act 1983 as amended (most notably by the Mental Health Act 2007) contains few restrictions on the compulsory psychiatric treatment of detained patients. There are restrictions on psychosurgery and electroconvulsive therapy, and treatment continuing beyond three months requires a second opinion through a statutory scheme Medical Law Review # The Author 2011. Published by Oxford University Press. This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/2.5/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited. For permissions, please e-mail: [email protected].

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that it is ‘appropriate’, but that is all: any other psychiatric treatment of detained patients may be given compulsorily, in the discretion of the responsible clinician. A decade ago, a possibility was created that some significant exploration of the limits of this discretion might occur. R (Wilkinson) v. Broadmoor Special Hospital Authority 1 was on its face a procedural case about whether cross-examination of witnesses was permitted under a judicial review application, but it held the potential to open up a range of substantive questions about compulsory treatment to judicial scrutiny. Previous cases had for example tested the breadth of the phrase ‘treatment for mental disorder’ or sought confirmation that medical treatment should be given when individuals lacked or were of marginal capacity, but Wilkinson was about the administration of antipsychotic medication in circumstances that were clearly within the legal parameters of the statute: this was unquestionably treatment for mental disorder of a person detained under the Mental Health Act 1983. The question was instead whether notwithstanding the domestic law the treatment should be enforced. The primary ‘hook’ for this issue was the European Convention on Human Rights (ECHR), following the Human Rights Act 1998 taking effect the previous year. On the ECHR issues, the court held that neither Wednesbury nor even super-Wednesbury would be a sufficient standard of review.2 A full-merits hearing was instead necessary, with cross-examination of witnesses available when appropriate. In reaching that result, the Court of Appeal opened up a very interesting substantive discussion as to the scope of permissible compulsory treatment, and made it clear that the courts had a role in ensuring that any compulsory treatment was indeed within that permissible scope. The stage seemed set for the development of a sophisticated jurisprudence on the scope of compulsory treatment under the Mental Health Act 1983. That promise, sadly, was not fulfilled. It would seem that there have been a total of nine relevant decisions flowing from Wilkinson including both first instance and appellate judgments, relating to five applicants.3 All concerned the pre-2007 standard for compulsory treatment that had

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[2001] EWCA 1545, hereinafter Wilkinson. Wilkinson at para 36 ( per Simon Brown L.J.); para 53 ( per Brooke L.J.), para 83 ( per Hale L.J.). There is one case concerning PS, (R (PS) v G [2003] EWHC 2335 (Admin)), three concerning B (R (B) v SS [2005] EWHC 86 (Admin); R (B) v SS [2005] EWHC 1936 (Admin); R (B) v SS [2006] EWCA Civ 28), two concerning N (R (N) v M [2002] EWHC 1911 (Admin); R (N) v M [2002] EWCA Civ 1789), two concerning JB (R (B) v Haddock [2005] EWHC 921 and [2006] EWCA Civ 961) and one concerning Taylor (R (Taylor) v Haydn-Smith [2005] EWHC 1668 (Admin)).

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continued beyond three months. All applicants have been unsuccessful, at all stages in their proceedings. Since 2006, the cases appear to have ground to a halt entirely. Little has been attained by way of clarifying the scope of permitted compulsion in psychiatric treatment. The issues at the heart of Wilkinson, and in particular the question of when, if at all, compulsory psychiatric treatment is permissible, have not gone away. If anything, the legislative changes in 2007 weakened the test for compulsion, making the issues more pressing. While ECHR requirements will be pivotal to any debate in England regarding compulsory treatment, they are to be a floor and not a ceiling, and there is no reason that the discussion of standards of enforced treatment should be limited to ECHR analysis. Indeed, it will be argued below that the ECHR standards are themselves underdeveloped in this area, and the discussion advanced by this paper applies to a considerable degree to establishing meaningful ECHR standards, as well as to standards applicable in England and Wales. In addition to the ECHR standards, personnel enforcing treatment are exercising public law powers, and their actions must therefore be defensible according to general public law standards. The public law standard of review is super-Wednesbury,4 and thus somewhat less than for cases under the Human Rights Act, but there is a public law standard, nonetheless. There are also ethical issues that come into play, and other international law, most significantly the new United Nations Convention on the Rights of Persons with Disabilities (CRPD).5 It is still too early to write with any certainty about how the CRPD will be interpreted, and a detailed analysis will not be offered by this paper. That said, the CRPD includes a right to medical treatment based on consent,6 and adopts a new approach that maximises capacity.7 All of this, along with the Convention’s other guarantees, is to be provided in a framework that is free of discrimination:8 the expectation is that choices cannot be imposed on persons with disabilities when they are not imposed on persons without disabilities. It does seem clear that at the very least, much clearer justifications will be required for compulsory treatment in the coming years, if it is to be permitted at all, and it would be well to start a serious discussion of these issues now.

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See R (Brady) v Collins (2000) 58 BMLR 173. See United Nations General Assembly, A/61/611 (6 December 2006). The provisions concerning consent are contained in Art 25(d). Both the main CPRD and its first optional protocol, which allows for individual complaints to the CRPD Committee, took effect on 3 May 2008. The UK has signed and ratified both the CRPD and the option protocol. Art 25(d). Art 12. Art 5.

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II. COMPULSORY TREATMENT AS A HUMAN RIGHTS ISSUE There seems to be a reluctance in the courts to acknowledge that compulsory treatment actually raises human rights concerns. In R (JB) v Haddock, for example, Auld L.J. held that ECHR safeguards should not be interpreted ‘to cut across the grain of good medical practice’.9 This is perhaps based on an apparent sense in the wider world that psychiatric medication is unproblematic, with the reliable positive effects vastly and manifestly outweighing any negative effects. How else can one explain, for example, the statement by health minister Paul Boatang when the Richardson Committee was established that there is ‘a responsibility on individual patients to comply with their programmes of care’ and that ‘[n]on compliance can no longer be an option when appropriate care in appropriate settings is in place’.10 The image is one of no down-side to psychiatric medications. Sadly, this is not a balanced reflection of the effects of the drugs. The benefits of psychiatric medication are not necessarily clear-cut, and the risks can be significant.11 Indeed, more people now die from the adverse effects of anti-psychotic medication than are killed by people as a result of their mental disorder.12 Adverse effects of antipsychotic drugs include obesity, diabetes, and dizziness. They also cause ‘extrapyramidal symptoms’, including parkinsonian symptoms (including tremors), dystonia (abnormal face and body movements), akathesia (restlessness), and tardive dyskinesia (rhythmic involuntary movements particularly of the tongue, lips, face, hands, and feet). These effects can be permanent. Even in the newer antipsychotics, these extrapyramidal symptoms occur in 35 – 55% of cases.13 Depression is normally treated with either tricyclic medication or selective serotonin re-uptake inhibitors (SSRIs). Tricyclic medication 9

R (JD) v Haddock [2006] EWCA Civ 961 para 33. Department of Health, Review of the Mental Health Act 1983 (Department of Health, 1999), 142 (Richardson Report). 11 Unless otherwise indicated, medical information in this paragraph is drawn from Joint Formulary Committee [United Kingdom], British National Formulary (49th edn 2005) sections 4.2 and 4.3. The British National Formulary is available online free of charge at ,http://www.bnf.org.. 12 Deaths from anti-psychotic medication from 1997 to 2008 inclusive were 749: see written response by Jil Matheson, National Statistician, to Parliamentary Question 302898, HC Deb, 2 December 2009, column 825W. Homicides in the same period by people with mental illness at the time of the homicide were 658: National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, Annual Report (University of Manchester, 2011). 13 J Bobes and others, ‘Frequency of Extrapyramidal Adverse Reactions in Schizophrenic Outpatients Treated with Risperidone, Olanzapine, Quetiapine or Haloperidol: Results of the EIRE Study’ (2002) 22 Clinical Drug Investigation 609. 10

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can cause heart problems, and deaths from heart attacks do sometimes occur. SSRIs can also cause nausea, gastro-intestinal problems and, less frequently, vascular problems. Medication may also interfere with the individual’s lifestyle: much anti-psychotic medication has sedative properties, leaving an individual feeling drowsy or apathetic. These drugs also cause impotence or other sexual dysfunction in approximately 45% of individuals.14 This is not to deny the beneficial effects of these drugs in many (but not all) cases; it is instead to serve as a reminder that they can also be harmful. Consistent with this, the 2009 report of the United Nations Special Rapporteur for the Prevention of Torture notes the need for close scrutiny of any non-consensual administration of psychiatric medication.15 These are serious treatments, with serious human rights implications. That cannot be ignored in states that purport to take human rights seriously. The reasons for treatment refusal are many and varied. Certainly, psychoses and similar manifestations of mental illness will be relevant in some cases, but there are other reasons for treatment refusal and non-adherence. Unsurprisingly, the presence of adverse effects is a significant factor: as extrapyramidal effects occur, refusals increase.16 Further, weight gain and sexual dysfunction are significant in service user attitudes to medication. In one study, obese people were more than twice as likely as people with normal body mass ratio to cease medication,17 and in another, 42% of men skipped medication because of sexual dysfunction.18 It would seem that relations between service user and prescribing physician are also relevant: poor communication between the two, and a lack of trust in

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See M Olfson and others, ‘Male Sexual Dysfunction and Quality of Life in Schizophrenia’ (2005) 66 J Clin Psychiatry 331; K Rosenberg and others, ‘A Survey of Sexual Side Effects among Severely Mentally Ill Patients Taking Psychotropic Medications: Impact on Compliance’ (2003) 29 J Sex Marital Ther 289; T Apantaku-Olajide and others, ‘Drug-induced Sexual Dysfunction and Mental Health Patients’ Attitude to Psychotropic Medications’ (2011) 26 Sex Relation Ther 145. Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment (M Nowak), Interim Report, General Assembly A/63/175 (27 July 2008), para 63. D Robertson and others, ‘Predictors of Medication Discontinuation by Patients with First-episode Schizophrenia and Schizoaffective Disorder’ (2002) 57 Schizophr Res 209; M Lambert and others, ‘Impact of Present and Past Antipsychotic Side Effects on Attitude Toward Typical Antipsychotic Treatment and Adherence’ (2004) 19 Eur Psychiatry 415. P Weiden and others, ‘Obesity as a Risk Factor for Antipsychotic Noncompliance’ (2004) 66 Schizophr Res 51. Rosenburg, n 16. See also Lambert, n 16.

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the physician appear to predict treatment refusal.19 These factors all tie together in complex ways. Thus it would seem that psychiatrists are not good at identifying the adverse effects of relevance to service users when explaining proposed treatment,20 and the use of compulsion can undercut the trust between psychiatrist and patient.21 Treatment refusals are thus a complex phenomenon, and the views of service users warrant appropriate respect. Courts have not necessarily acknowledged this, as in R (B) v Haddock, where Collins J. declined to hear the evidence of the patient, on the basis that ‘it did not seem to me that his evidence would conceivably assist me in reaching my decision’.22 Further, it cannot be assumed that service users retrospectively approve of coercive measures to which they are subject (the ‘thank-you’ theory). Certainly, some do, and initial indications are that this may be particularly true when decisions are made on behalf of people lacking capacity. A study by Owen and colleagues of people lacking capacity admitted to London psychiatric facilities found 83% of those regaining capacity giving retrospective approval of the decisions made on their behalf.23 The sample size for this study was only 35, but nonetheless the proportion of retrospective approvals is impressive. Other studies of retrospective views of coercion provide fewer grounds for optimism. In Priebe’s study of service user views a year after hospitalisation, only 40% of the 396 patients interviewed thought their involuntary admission justified.24 This is broadly consistent with the smaller study by Gardiner and Lidz of retrospective approval of admissions in America, where roughly half of the sixty-five patients who did not think their detention justified when it occurred changed their view over time, but Gardner and Lidz note that even those who retrospectively viewed their detention as justified did not change in the way they felt about the admission: those that were angry at the time of admission were still angry. Even those who viewed their detentions as justified were 19

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See discussion in A Mitchell and T Selmes, ‘Why Don’t Patients Take Their Medicine? Reasons and Solutions in Psychiatry’ (2007) 13 Adv Psychiatr Treat 336. J Day, P Kinderman and R Bentall, ‘A Comparison of Patients’ and Prescribers’ Beliefs about Neuroleptic Side-effects: Prevalence, Distress and Causation’ (1998) 97 Acta Psychiatr Scand 93. R Kaltiala-Heino, P Laippala and R Salokangas, ‘Impact of Coercion on Treatment Outcome’ (1997) 20 Int’l JL Psychiatry 311. [2005] EWHC 921 (Admin) para 14. G Owen and others, ‘Retrospective Views of Psychiatric In-patients Regaining Mental Capacity’ (2009) 195 Br J Psychiatry 403. S Priebe and others, ‘Patients’ Views and Readmissions 1 Year after Involuntary Hospitalisation’ (2009) 194 Br Med J 49. The authors consider that this may in fact be higher than the actual number, as roughly half of their original sample dropped out prior to the interview at the one year period.

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still not grateful. Gardiner and Lidz view this as flowing from the feeling of injury consequent on the coercive elements of the detention, and the consequent loss of autonomy.25 Consistent with this, Katsakou finds treatment satisfaction among those subject to enforced treatment lower than for those not coerced.26 One thus cannot assume that patients are grateful for the treatment received; and when they are not, they can perceive the coerced treatment as remarkably violative – a reaction not necessarily noted or acknowledged by their professional carers27 or the courts. The standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) expressly preserve the decision-making rights over treatment of persons detained in psychiatric facilities: Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances.28 This is consistent with jurisprudence in the United States, where such decision-making rights of persons detained in psychiatric facilities were held to be a constitutional principle in Rogers v Okin and Rennie v Klein thirty years ago.29 Scotland, too, now allows compulsory psychiatric or other medical treatment only after a hearing before a 25

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28 29

See W Gardiner and others, ‘Patients’ Revisions of Their Beliefs about the Need for Hospitalization’ (1999) 156 Am J Psychiatry 1385; and W Gardner and C Lidz, ‘Gratitude and Coercion between Physicians and Patients (2001) 31 Psychiatr Ann 125. C Katsakou and others, ‘Treatment Satisfaction among Involuntary Patients’ (2010) 61 Psychiatr Serv 286, 290. This study also finds that the relevant measure of coercion is the perceived coercion by the service user, not the formal legal mechanism, reminding us of the complex relationship between legal mechanisms and the experience of coercion. K Haglud and others, ‘Forced Medication in Psychiatric Care: Patient Experiences and Nurse Perceptions’ (2003) 10 J Psychiatr Ment Health Nurs 65. CPT Standards, CPT/Inf/E (2002) 1, Rev 2004, p. 57, para 41. Rennie v Klein 653 F 2d. 836 (USCA, 1981); Rogers v Okin 634 F 2d 650 (USSC, 1980); Rogers v Okin 738 F 2d 1 (USCA, 1984). A similar position has been adopted in Eire – see Mental Health Act (2001), discussed in detail by M Donnelly, ‘Treatment for a Mental Disorder: the Mental Health Act 2001, Consent and the Role of Rights’ (2005) IJ 220.

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review tribunal, based on specific substantive and procedural safeguards.30 None of these regimes entirely prohibit involuntary treatment; but all make it clear that compulsion is permitted only in strictly defined circumstances and only following appropriate procedural safeguards.

III. THE MENTAL HEALTH ACT PROVISIONS The current law relating to treatment of detained patients is governed by part 4 of the Mental Health Act 1983. The general rule is contained in section 63: The consent of a patient shall not be required for any medical treatment given to him for mental disorder from which he is suffering, not being a form of treatment to which section 57, 58, or 58A applies, if the treatment is given under the direction of the approved clinician in charge of the treatment. The starting position of the legislation is therefore that the consent of patients is not required. While this applies only to ‘treatment . . . for mental disorder’, the courts have been expansive as to the meaning of this phrase, interpreting it in some circumstances to include enforced feeding,31 Caesarean section operations,32 and ‘milieu therapy’.33 If treatment is for mental disorder, the legislation provides few safeguards. Psychosurgery may be performed only following the competent consent of the patient and the provision of a second opinion by a second opinion approved doctor (SOAD) – a psychiatrist appointed through the statutory scheme managed by the Care Quality Commission.34 30 31 32 33

34

Mental Health (Care and Treatment) Act 2003, asp 13, part 7. See R (Brady) v Collins (2001) 58 BMLR 173 (QB); B v Croydon DHA (1994) 22 BMLR 13, affd [1995] 1 All ER 689 (CA). See Tameside and Glossop Acute Services Trust v CH [1996] 1 FLR 762 (Fam). See MD v Nottinghamshire Healthcare NHS Trust [2010] UKUT 59 (AAC); Reid v Sec State for Scotland [1999] 1 All ER 481 (PC). ‘Milieu therapy’ occurs when the structured environment of the ward results in a reduction in the manifestations of an individual’s disorder. The Code of Practice draws the distinction between ‘nursing and specialist day-to-day care’, which can be treatment for mental disorder, and ‘simply detaining someone – even in a hospital’, which cannot; but in practice it is difficult to see clear distinctions between these: see Department of Health, Code of Practice: Mental Health Act 1983 (London: The Stationery Office, 2008), para 6.17–18. See s 57(1)(a). By regulation, the ‘surgical implantation of hormones for the purpose of reducing male sex drive’ is subject to similar restrictions (see SI 2008/1184, reg 27), but this has no practical effect as it does not cover hormone analogues (the prevalent current treatment), nor the oral administration of these substances (the current preferred method of administration): see R (X) v MHAC (1988) 9 BMLR 77 at 85.

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Restrictions also exist for electro-convulsive therapy, most significantly that it may be refused by a competent patient.35 Otherwise, the only statutory restriction on compulsory treatment commences 3 months after medication is first given to the patient in his or her period of detention. From that time, treatment may occur if either the patient has capacity and consents to the treatment, or if a SOAD certifies that the patient either lacks capacity or is not consenting to treatment and that ‘it is appropriate for the treatment to be given’.36 This is a new standard, introduced by the Mental Health Act 2007. Previously, the SOAD had been required to certify that ‘having regard to the likelihood of its alleviating or preventing a deterioration of [the patient’s] condition the treatment should be given’. This is not merely a cosmetic change. In Wilkinson, the court held contrary to the then current guidance that SOADs were not merely to certify that proposed treatment was ‘reasonable in light of the general consensus of appropriate treatment’; they were instead to reach their own independent judgment based on the section 58 criteria.37 While the Code of Practice now requires the SOAD to reach an independent decision, the move to an ‘appropriateness’ test may well mean that it is now a decision as to the reasonableness of the treating physician’s approach. This suggests a shift towards a Bolamstyle threshold, rather than a test of what the SOAD would have done himself or herself. The ‘appropriateness’ language further mirrors the change to the previous treatability requirements for detention under section 3 of the Mental Health Act, and the changes in that context were broadly perceived as lowering the requirements for confinement of people for whom the old treatability test applied. The ramifications of that change will be discussed further below; but it is worth noting here that all the post-Wilkinson cases rely on the pre-2007 wording of section 58, and the standard appears to have fallen since that time. Even for those patients within its remit, it is not obvious how much real protection the SOAD scheme offers. In 2008, while SOADs recommended some change to treatment plans in roughly one case in four, most of these were ‘slight’. ‘Significant’ amendments were required in

35 36 37

S 58A. S 58(3). Wilkinson para 32–33, 71; see also discussion in P Bowen, ‘Detained Patients and the Right to Refuse Treatment’ [2002] JMHL 59, 61. A similar point is made by the Court of Appeal in R (B) v S [2006] EWCA Civ 28; see also discussion in P Hope, ‘Paternalism or Power? – Compulsory Treatment Under Section 58 of the Mental Health Act 1983’ [2006] JMHL 90, 99.

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only about 4% of cases.38 There may be a variety of reasons for the relative rarity of these changes; but the high level of agreement is notable. The SOAD system takes effect only after the first 3 months of detention – significantly longer than most detentions last. In the initial 3-month period, all psychiatric treatments except psychosurgery and ECT may be enforced at the discretion of the patient’s responsible clinician. In 2009 – 10, 45,755 people were detained under the Mental Health Act 1983; SOAD opinions were given regarding these people in 8,781 cases – just under 20%.39 For more than 80% of persons detained, therefore, compulsory treatment was at the sole discretion of their responsible clinician acting under the authority of section 63, with no formal safeguards or procedures required at any time. In its final report prior to its incorporation into the Care Quality Commission, the Mental Health Act Commission noted the deficiencies of this situation: It is seems quite possible that the absence of an external safeguard in relation to the imposition of medication without consent for such a period will, at some future point, be found incompatible with human rights obligations, given modern medical practice and pharmacopoeia.40 Section 58 does provide some statutory language for the SOAD in determining whether treatment should be compelled, but both sections 58 and 63 are silent on the standard for compulsion to be applied by the responsible clinician. It is difficult to see that the standard for responsible clinicians can be lower than for the SOAD. Section 58 establishes an appropriateness test for the SOAD; could it really be defensible that a responsible clinician would impose inappropriate treatment? For SOADs and responsible clinicians alike, however, some courts in the post-Wilkinson jurisprudence have acknowledged that even the stronger, pre-2007s fifty-eight test is not sufficient, and have provided more expansive dicta as to how the compulsion decision is to be approached. These dicta flow in part from the courts’ interpretation of the relevant portions of the ECHR, and will be discussed following an introduction to the relevant ECHR case law, and the courts’ interpretation of it. 38

39 40

Mental Health Act Commission, Coercion and Consent: Monitoring the Mental Health Act 2007–9, being the thirteenth biennial report of the Mental Health Act Commission (The Stationery Office, London 2009), figure 50. Care Quality Commission, Monitoring the Use of the Mental Health Act in 2009 –10 (CQC, 2010) at 19, 83. Mental Health Act Commission, see n 38, para 3.17. (13th biennial report of the Mental Health Act Commission.)

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IV. THE ECHR The introduction of the ECHR into domestic law through the Human Rights Act 1998 provides the legal structure of the Wilkinson and postWilkinson decisions. This is problematic, as the ECHR case law is in a variety of respects unconvincing.41 The key case is Herczegfalvy v Austria. 42 While Herczegfalvy remains the fundamental Strasbourg case on psychiatric treatment, its interpretation is problematic, and raises as many questions as it answers. It was not primarily a treatment case at all: the considerable bulk of the decision is spent on finer points of the distinction between detention under Article 5(1)(a) (criminals) and Article 5(1)(e) ( persons of unsound mind), a question on which it is now largely forgotten. Insofar as it involved treatment, it is not entirely clear what the treatment involved. Certainly, it included being handcuffed to a security bed for a period of more than 2 weeks, and it included sedation to allow treatment with perfusions, and a significant period of enforced feeding, all of which were performed with considerable force. It also seems to have included neuroleptic medication. The applicant had been found some years prior at least partially to lack capacity; but the facts are entirely unclear as to whether he lacked capacity for the specific decisions at issue at the times those decisions actually arose. At issue was whether the treatment constituted a violation of Article 3 (freedom from torture and inhuman or degrading treatment) or Article 8 (right to privacy and family life). The Court disposed of the Article 3 issue as follows: 82. The Court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3 (art. 3), whose requirements permit of no derogation. 41

42

For a detailed discussion of the ECHR jurisprudence, see P Bartlett, O Lewis and O Thorold, Mental Disability and the European Convention on Human Rights, (Martinus Nijhof, Leiden 2007). Application No. 10533/83, judgment 24 September 1992. (A/242-B) (1993) 15 EHRR 437.

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The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist. No violation of Article 3 was found. Because of the factual limitations of the case, it is difficult to know quite how to read this passage. It seems that it is not restricted to individuals lacking capacity,43 but the paternalism implied in any broader reading does not chime well with the languages of therapeutic alliances and partnerships that have arisen since the judgment appeared, almost 20 years ago. What exactly is the scope of the phrase ‘therapeutic necessity’? What evidence is required, and what criteria must the court require to satisfy itself that the medical necessity has been ‘convincingly shown to exist’? The Strasbourg court is itself extremely hesitant about second-guessing domestic courts on matters of evidence – indeed, this is a key reason why Wilkinson was itself found inadmissible by the Strasbourg court and did not progress to a full hearing.44 This is not, of course, an argument that domestic tribunals should not themselves develop suitably robust thresholds of evidence and procedure. Even where the Court has not been prepared to say that a specific medical treatment per se violates Article 3, the manner in which the treatment is performed may constitute a violation.45 Indeed, there is jurisprudence that any use of force not strictly necessary is sufficient to trigger Article 3 in detained populations.46 Thus handcuffing a prisoner during chemotherapy,47 shaving a prisoner’s hair,48 and strip searches conducted in an unduly invasive manner49 have all been held to be violations of Article 3 in circumstances where the facts did not warrant the behaviour. If we are to accept that people detained in psychiatric 43 44

45 46 47 48 49

See Nevmerzhitsky v. the Ukraine, Application No. 54825/00, judgment of 12 October 2005. See application no. 14659/02, judgment 28 February 2006 (2006) 13 Eur JHL 186. The court also relied heavily on the integrity of the SOAD system, a procedure that does not apply for 80% of detained patients, as discussed above. See, eg, Nevmerzhitsky v the Ukraine, Application No. 54825/00, judgment of 12 October 2005. Ribitsch v Austria, Application No. 18896/91, judgment 21 November 1995 (1995) 21 EHRR 573, para 38. Mouisel v France, Application No. 67263/01, judgment 14 November 2002 (2004) 38 EHRR 34, para 48. Yankov v Bulgaria, Application No. 39084/97, judgment 11 December 2003 (2005) 40 EHRR 36, para 120. Valasinas v Lithuania, Application No. 44558/98, judgment 24 July 2001, 12 B.H.R.C. 2, para 117 and Van der Ven v the Netherlands, Application No. 50901/99, judgment 4 February 2003 (2004) 38 EHRR 46, para 62.

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facilities must have at least the same rights as prisoners, then the manner of enforcement of treatment will be of particular relevance. All these cases are post-Herzcegfalvy, and it is fair to wonder how the court would now approach the use of force in that case, in light of the subsequent jurisprudence. The case may actually be stronger for persons detained in psychiatric facilities, based on the vulnerability of those people, noted by the court in the quotation from Herczegfalvy above. This was certainly the position in Keenan v the United Kingdom: In particular, the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment[.]50 The fact that Article 3 may be violated by the manner in which the activity is done, even if the activity itself may themselves have been objectively appropriate, opens a wide variety of questions in a psychiatric context about doctor –patient interactions, choices of medications, and uses of force in implementing those choices, and in turn how these issues relate to the broader question of therapeutic necessity. By way of example, if a person with bipolar disorder is prepared to consent to anti-depressant A but not to antidepressant B, can he or she be forced to take B, assuming that there is little therapeutic reason to choose between the two? If B is indeed better than A, can its better efficacy be used to override the refusal, even if A would also be an appropriate (but not the medically optimal) treatment? The existing jurisprudence does not provide clear answers. If the treatment of Article 3 in Herczegfalvy is problematic, the treatment of Article 8 is even more unsatisfactory. The court’s reasoning is perfunctory: 86. The first two complaints relate to facts already complained of from the point of view of Article 3 (art. 3). Reference should therefore first be made to paragraph 83 above. In addition, the Court attaches decisive weight here to the lack of specific information capable of disproving the Government’s opinion that the hospital authorities were entitled to regard the applicant’s psychiatric illness as rendering him entirely incapable of taking decisions for 50

Application No. 27229/95, judgment of 3 April 2001 (2001) 33 EHRR 38, para 111.

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himself. Consequently, no violation of Article 8 (art. 8) has been shown in this respect. On one reading, this seems to say that people lacking capacity are unable to claim violations of Article 8. That position must be incorrect: rights to privacy and family life do not cease merely because an individual lacks capacity. At a deeper level, the statement does not deal with the different content and structures of Articles 3 and 8. Is it the intent of the Court to say that the thresholds for engagement of Article 8 are the same as those in Article 3, and that the therapeutic necessity test may be carried over as the test for a violation of Article 8? That approach is rightly criticised by Charles J. in R (B) v SS,51 but phrasing of paragraph 86 raises the question of whether this is actually what the court meant. In any event, even if (as seems likely) the criticism is correct, it raises the question of what is required by Article 8, if not Article 3 standards and approach? Herczegfalvy does not provide an answer. Unlike Article 3, which admits of no derogation, Article 8 initially provides in paragraph (1) a right to private and family life, but allows in paragraph (2) interference with that right when ‘in accordance with the law’, and ‘necessary in a democratic society’ in the interests of, inter alia, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. Other ECHR jurisprudence would suggest that the threshold for engagement of Article 8(1) is low in the case of institutional medical treatment. YF v Turkey 52 concerned a gynaecological examination of a woman in police custody. The Court held that even a minor medical intervention, if performed without consent, constituted an interference with Article 8 rights. It was not clear whether YF had in fact consented, but the court went on to hold that because of the control exercised over YF flowing from her detention, she could not have been expected to object to the examination. It therefore found an interference of her rights under Article 8 even if she had consented.53 On this basis, it would seem that most treatment of detained people in psychiatric facilities – even treatment to which they consent – is likely to interfere with the rights in Article 8(1), and require justification under Article 8(2). Article 8(2) requires that the interference in question is ‘necessary in a democratic society’ for one of the purposes listed in that sub-article. While ‘necessary’ does not mean indispensible, it does mean more than ordinary, reasonable, or desirable.54 For the overarching policy 51 52 53 54

[2005] EWHC 1936 (Admin), para 78–80. Application No. 24209/94, judgment of 22 July 2003, (2004) 39 EHRR 34. Paras 33–35. Handyside v the United Kingdom (A/24) (1976) 1 EHRR 737.

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of compulsory psychiatric treatment, this will presumably require that governments demonstrate a real need for treatment under compulsion. The fact that compulsory treatment exists in most jurisdictions in the world will presumably be noted by a court considering this issue, but it is not analytically satisfying. Article 8(2) presumably requires governments to make a principled defense of their practice. This may be challenging. Compulsory treatment has long been a part of the mental health law landscape, and its justifications are largely unspoken. It is not obvious, for example, that it can be justified for public safety: ex hypothesi, the individual subject to compulsory treatment under the Mental Health Act 1983 is detained in a psychiatric facility, and the public is not therefore at risk. Arguments based on the protection of health are similarly problematic, in that they are based on the notion that compulsory treatment produces significantly better health outcomes than a lack of compulsion. In community settings, where the most developed empirical literature exists, evidence for this proposition is stubbornly elusive.55 It would also seem that, in most cases, people who initially refuse treatment move on to take similar treatment without legal compulsion after a relatively short time.56 We further know very little about the circumstances in which compulsory treatment is imposed. The experience of patients would suggest that at least some compulsion flows from administrative short-cuts or pressures on clinicians’ time, and that better patient relations would reduce the need for compulsion. Mark Gray, a member of the Service User Review Panel of the Care Quality Commission, comments:

55

56

See S Kisely and others, ‘Compulsory community and involuntary outpatient treatment for people with severe mental disorders’ (Cochrane Library, 2005), available at ,http://www.thecochranelibrary.com.; R Churchill and others, International Experiences of Using Community Treatment Orders, (Institute of Psychiatry, London 2007). It would seem that something in the range of 5–10% of patients refuse treatment initially. In the classic study by Hoge and others, more than half of the patients initially refusing treatment eventually agreed to treatment after a mean period of 7 days. Of the remainder, roughly half were permitted by their physicians to refuse medication, generally either because the refusal was viewed as not medically unreasonable or because the physician viewed it as in the longer term interest of the patient for the refusal to be complied with: see S Hoge and others, ‘A Prospective, Multi-center Study of Patients’ Refusals of Antipsychotic Medication’ (1990) 47 Arch Gen Psychiatry 949. Similar results are found in Kasper and others’ study, where 13% of patients initially refused treatment, but of this group, 68% ended their refusal within 2 days (the median length of refusal), and 90% within 4 days: J Kasper and others, ‘Prospective Study of Patients’ Refusal of Antipsychotic Medication Under a Physician Discretion Review Procedure’ (1997) 154 Am J Psychiatry 483.

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The doctor tells you what you should have and then prescribes it. There is no discussion or choice or any information leaflets given to you to help you understand it. The only option left open to the patient is to refuse the medication which results in an independent doctor visiting you, who then can give you the information you require and a helpful discussion.57 It is difficult to see that compulsion would be justified if consent would follow from a full discussion of the drug and its effects.58 It is not clear how frequently compulsion could be avoided by a different approach to patient care; but it does seem that if compulsion is to be justified, much clearer evidence should be required as to how it is used currently, and the circumstances in which it is actually necessary, rather than merely convenient. Once Article 8(1) is engaged, the non-discrimination provisions of Article 14 should also come into play for any justification under Article 8(2). While disability is not one of the specifically enumerated grounds in Article 14, the list in that article is not closed, and the ECtHR has now held that it is included by implication.59 If this approach is adopted regarding non-consensual treatment, it will be necessary for governments to explain why such measures are necessary for mental illnesses, but not for physical illnesses. It is not obvious that this will be easy, based on health outcomes. The ECHR further requires that domestic legislation be formulated with a reasonable degree of specificity. The classic test, contained in Sunday Times v the United Kingdom, requires sufficient precision that the citizen may, with legal advice if necessary, reasonably foresee the consequences of his or her actions.60 In the context of compulsory treatment, the issue is not merely that the citizen – the patient in the current context – can foresee the consequences of his or her actions; it is also that the person imposing the compulsion (the responsible clinician, here) is given sufficient guidance to ensure a reasonable degree of 57

58

59 60

Care Quality Commission, Monitoring the Use of the Mental Health Act in 2009/10 (Department of Health, 2010) 85. This may be a significant problem. In Haglud’s study comparing service users’ and nurses’ experiences of involuntary treatment, all patients interviewed proposed alternatives to compulsion; no nurses did: K Haglud and others, ‘Forced Medication in Psychiatric Care: Patient Experiences and Nurse Perceptions’ (2003) 10 J Psychiatr Mental Health Nurs 65 at 70. Regarding service user understanding more generally as a determinant of drug compliance, see A Mitchell and T Selmes, ‘Why Don’t Patients Take Their Medicine? Reasons and Solutions in Psychiatry’ (2007) 13 Adv Psychiatr Treat 336, especially at 339– 40, 43. Glor v Switzerland, application no. 13444/04, judgment of 30 April 2009. Sunday Times v the United Kingdom, Application no. 6538/74, judgment 26 April 1979, (1979) 2 EHRR 245, para 49.

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consistency between decision-makers. Absent such a standard, the imposition of treatment becomes a matter of luck as to who is the responsible clinician, and human rights become a lottery. It is difficult to see that the Mental Health Act provisions meet this standard. No substantive guidance is provided to responsible clinicians as to how their discretion to impose treatment is to be exercised. Even the non-binding Code of Practice is largely silent on the issue. The Code does note that consent should be sought ‘wherever practicable’61 and that when consent is withdrawn ‘[t]he clinician in charge of the treatment must consider whether to proceed in the absence of consent, to provide alternative treatment instead or to give no further treatment’.62 It notes the possibility of infringements of Articles 3 and 8 of the ECHR, but claims that ‘[s]crupulous adherence to the requirements of the legislation and good clinical practice should ensure that there is no such incompatibility’.63 It is difficult to see that this provides meaningful guidance. As there are no additional procedural safeguards for the first 3 months of detention, the Act provides no substantive criteria in this period. Even beyond this period, it is difficult to see that the ‘appropriateness’ test of section 58 provides anything resembling the level of certainty required by the Sunday Times test. Some guidance for SOADs is provided by the Code of Practice,64 but there is no mechanism in place to determine whether it is being followed.

V. ISSUES FROM THE POST-WILKINSON JURISPRUDENCE A. ‘Appropriate’ Treatment and ‘Therapeutically Necessary’ Treatment As noted above, the provision of treatment which is not ‘therapeutically necessary’ to detained patients risks violation of Article 3. The postWilkinson jurisprudence is directed to the pre-2007 test for SOADs, that ‘having regard to the likelihood of its alleviating or preventing a deterioration of [the patient’s] condition, the treatment should be given’. Since the 2007 Act took effect in 2009, the test has instead become whether it is ‘appropriate that the treatment be given’.65 There are a variety of difficulties with this standard. The first is that it would appear to set a standard well below therapeutic necessity. 61 62 63 64

65

Code of Practice, para 23.27. Code of Practice, para 23.38. Code of Practice, para 23.41. Code of Practice, para 24.58; Care Quality Commission, ‘Guidance for SOADs: Consent to Treatment & the SOAD Role Under the Revised Mental Health Act’ (CQC, 2008) Appendix A. MHA s 58(3)(b), as amended by the MHA 2007.

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Many treatments may appropriately be prescribed which are not therapeutically necessary. Treatments which attack the symptoms of a disorder but not the underlying disease are an obvious example. It may be entirely appropriate that doctors prescribe medication that merely makes us feel better ( painkillers, for example); but patients refusing such medication will not necessarily get better any slower than those taking it. Such medication cannot be seen as therapeutically necessary, if what is meant by that is treating the underlying disorder or improving outcomes. Therapeutic necessity also implies a severity to the disorder that is to be treated: treatment of minor or unthreatening conditions may certainly be appropriate; it is less obvious that it is therapeutically necessary to a degree that warrants compulsion, at least in the absence of incapacity. Consistent with this, some jurisdictions impose criteria related to the severity of the condition, before compulsory treatment may be given. Generally, these refer to the safety of the patient or others.66 The Court of Appeal in R(N) v (M) went some way to defining a standard of medical necessity: The answer to that question will depend on a number of factors, including (a) how certain is it that the patient does suffer from a treatable mental disorder; (b) how serious a disorder is it; (c) how serious a risk is presented to others; (d) how likely is it that, if the patient does suffer from such a disorder, the proposed treatment will alleviate the condition; (e) how much alleviation is there likely to be; (f ) how likely is it that the treatment will have adverse consequences for the patient; and (g) how severe may they be.67 This goes some way to establishing a framework, but it does little to determine a standard. The cases have not required formal evidence directed to these factors, and as noted, no patient has yet successfully challenged a decision to treat with compulsion, suggesting that the current requirements are not high. No standard is in the Mental Health Act 1983 itself. The Act does provide that ‘it is appropriate for treatment to be given to a patient if the treatment is appropriate in his case, taking into account the nature 66

67

See, eg, Mental Health (Care and Treatment) (Scotland) Act, s 57(3)(c). Safety-based standards also exist in America; see Hightower by Dahler v Olmstead, 959 F. Supp. 1549 (N.D. Ga. 1996), Fisk v Letterman, 501 F. Supp. 2d 505 (S.D. N.Y. 2007). Matter of Gertrude K., 177 Misc. 2d 25, 675 N.Y.S.2d 790 (Sup. Ct. 1998). These jurisdictions generally also require a lack of capacity or similar standard of impaired decision-making prior to involuntary treatment: see, eg, Matter of Joseph O., 245 A.D.2d 856, 666 N.Y.S.2d 322 (3d Dep’t 1997), and s 57(3)(d) of the Scots Act. [2002] EWHC 1911 (Admin) para 19.

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and degree of the mental disorder and all other circumstances of his case’.68 It is not obvious that this advances interpretation much, although it does seem to focus the evaluation on the individual patient, taking into account medical and non-medical factors. While a multi-faceted analysis may be desirable in the context of deciding on treatment under compulsion, it is problematic to apply to the Herczegfalvy standard, which refers expressly to the ‘principles of medical science’ and ‘therapeutic’ necessity. The Herczegfalvy standard seems to reflect an internalist medical discourse, where the statutory approach is expressly wider than this. The expansion to a wider field of analysis is appealing, in its acknowledgement that appropriateness of compulsion involves the actual effect on the individual patient, not merely internalist medical health outcomes. This broader approach is visible in cases such as Keenan, noted above; but it is less obvious how it integrates with the more insular medicalism Herczegfalvy. The broader range of factors further creates problems of its own. It appears to mean that enforced treatment of a person from one culture would constitute an ECHR violation where the same treatment in the same circumstances of a person from another culture would not. This is intuitively problematic, and potentially engages the nondiscrimination provisions of Article 14. At the same time, there may well be cases where failure to take cultural difference into account may itself trigger an ECHR claim, including a claim under Article 14. The expectation that a history of sexual abuse will be discussed in detail with a male therapist may impact very differently on women from different cultural or religious backgrounds, for example. This in turn opens up a wide range of issues about what is required by different religions or cultures, and how far human rights law should take that into account – issues outside the scope of this paper, but issues that need to be thought through with care if compulsion is to be justified. It seems very unlikely that they were considered in the rather bald language of the Herzcegfalvy decision. The language of ‘appropriateness’ reflects the similar phrase ‘appropriate medical treatment’, which must be ‘available’ for detention beyond 28 days.69 This test is discussed in some length in chapter 6 of the Code of Practice, and it may be that the similarity of language will mean that courts turn to this as an aid to interpreting the section 58 standard. This should be approached with considerable care, if at all. The Code notes that chapter 6 is about the test in the context of detention and supervised community treatment.70 Detention and involuntary 68 69 70

S 64(3). S 3(2)(d) and 3(4). Code of Practice, para 6.1.

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treatment are different decisions, with potentially quite different justifications. A key issue in detention may for example be public safety; but once the individual is detained, this objective is largely met. Justifications for compulsory treatment are different. As an ethical question, it may be quite appropriate to require appropriate treatment to be available prior to detention; it is quite a different thing to say that because appropriate treatment is available, it should be administered by compulsion. Chapter 6 of the Code requires that appropriate treatment ‘must be treatment which is for the purpose of alleviating or preventing a worsening of the patient’s mental disorder or its symptoms or manifestations’.71 This seems inoffensive, but not particularly enlightening in the context of compulsory treatment, beyond reinforcing the requirement in section 63 that the treatment must be for the mental disorder. More problematic are the Code’s comments regarding the purposes of the treatment: 6.4 Purpose is not the same as likelihood. Medical treatment may be for the purpose of alleviating, or preventing a worsening of, a mental disorder even though it cannot be shown in advance that any particular effect is likely to be achieved. *** 6.6 Even if particular mental disorders are likely to persist or get worse despite treatment, there may well be a range of interventions which would represent appropriate medical treatment. It should never be assumed that any disorders, or any patients, are inherently or inevitably untreatable. Nor should it be assumed that likely difficulties in achieving long-term and sustainable change in a person’s underlying disorder make medical treatment to help manage their condition and the behaviours arising from it either inappropriate or unnecessary. On one level, these statements are perfectly sensible. The first is an acknowledgement that medicine can be an inexact science. Patients with physical ailments may well consent to treatments that have uncertain outcomes, and there may be no suggestion that they are treated inappropriately in those circumstances. The same uncertainties exist with psychiatric care. The second paragraph is an encouraging statement to the effect that clinicians should not give up on patients. This seems entirely laudable. 71

Code of Practice para 6.8.

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As standards for compulsory administration of treatment, however, these paragraphs are highly problematic. The Article 3 test flowing from the ECHR focuses to a marked degree on therapeutic necessity; that is not the same standard as therapeutic appropriateness. There is a difference between treatment a reasonable and competent patient might choose for himself or herself, and treatment which warrants compulsion. Other jurisdictions include requirements regarding the likelihood of success of treatment as part of their compulsion criteria,72 and this makes sense. Can it really be said that a treatment is a therapeutic necessity, when likelihood of a given result cannot be shown? In what sense can treatment that will not achieve long-term and sustainable change in a person’s underlying disorder be understood as therapeutically necessary? The benefits that flow from the treatment must also, presumably, meet some sort of substantive threshold of degree of benefit to be ‘necessary’. The Code quite rightly notes in paragraph 6.15 that stabilization of a condition that would otherwise worsen may sometimes be all that is realistic, and it is possible to imagine that treatments that will reliably achieve this end might sometimes meet a therapeutic necessity test; but the outcomes of treatment over non-treatment must presumably be real, significant, and manifest if treatment is to be considered ‘necessary’. It is one thing to allow patients with capacity to choose to take treatment with significant risks and uncertain outcomes; it is quite another to compel them to do so. An approach requiring reasonable certainty may be problematic in practice. Often, the predictability of the result will increase with a history of the use of the intervention in the patient’s case: if drug A worked the last time, it may well work this time, if the individual’s symptoms are similar. Two potential difficulties flow from this. The first is that it will be difficult to apply to people in their first episodes of mental ill health, when the track record has not been established. In practice, it seems that responses to serious mental illness involve a considerable amount of trial and error by clinicians in individual cases, trying to find the drug or drug combination that gets the best result with the fewest adverse effects. The results of this process can be mixed: sometimes, drug combinations are found which largely alleviate the disorder with minimal adverse effects; sometimes drug treatments have minimal beneficial effects, following considerable unpleasant adverse effects. In these circumstances, knowledge of probable outcomes in the specific case may be low, and the above standard would not allow compulsory treatment to be used to establish the therapeutic history that would reach the optimal treatment. While the

72

See, eg, Mental Health (Care and Treatment) (Scotland) Act, s 57(3)(b).

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practical difficulties this raises are acknowledged, it is not obvious that this warrants a departure from the standard: from a human rights perspective, it is difficult to see that people should be forcibly treated with mind-altering drugs that may have considerable adverse effects without a reasonable certainty about the positive results. Trial and error does not belong in a human rights framework. The second difficulty is that the reasons for the patient’s rejection of the treatment may be increasingly significant when he or she has experience of the treatment. If one starts with a framework of nondiscrimination, of course, the reasons for a competent patient’s refusal of a treatment are not relevant: a competent patient is allowed in law to refuse treatment for any reason, good or bad, rational or irrational. That said, the ethical case for compulsion weakens when a patient objects to a treatment based on his or her actual experience of that treatment in the past. If, based on experience, the service user takes the view that the potential benefits do not warrant the adverse effects, that is a particularly powerful argument in opposition to compulsion: any other result makes a mockery of autonomy. The process of gaining the knowledge which might buttress a justification of compulsory treatment may therefore also enhance the respect that should be given to the patient’s refusal of such treatment.

B. Medical Disagreement and the Role of the Court It was argued above that reasonable certainty of diagnosis, therapeutically necessary treatment, and outcome should be required before involuntary treatment is contemplated. If such certainty is absent, it is difficult to see that a human rights infringement is ‘balanced’ by a corresponding benefit (if indeed such a balancing is the correct approach), since the benefit is speculative. The requirement that a therapeutic necessity must be ‘convincingly shown to exist’, as required by Herczegfalvy, suggests a medical consensus on the appropriate treatment in the patient’s case, and disagreements between medical professionals are thus particularly problematic. The response to disagreements between clinicians goes to the heart of the issue in Wilkinson itself, where the facts presupposed a real and legitimate clinical disagreement, and disagreements between clinicians feature in all the post-Wilkinson cases. The court in Wilkinson can be seen as adopting a classic judicial approach: evidence should be presented, including oral evidence if necessary; from this evidence, the court should reach the relevant findings of fact, and determine the questions at issue. While this may be the classic role of a court, the courts themselves sometimes acknowledge that it is not necessarily a role that they perform particularly well, particularly on technical medical matters.

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It is thus fair to ask whether it is the right approach: if there is a real and bona fide disagreement between the clinicians as to diagnosis or appropriate treatment, should the court rather than deciding who is correct – a finding the court is not really equipped for – instead find that a bona fide dispute exists and the level of certainty to justify compulsory treatment is therefore not met? This approach was argued in R (N) v M in terms of what might be conceived as a reverse-Bolam test: if reasonable clinicians disagreed, the requisite standard of certainty would not be reached, and the treatment would not be convincingly shown to be medically necessary within the terms of Herzcegfalvy. The submission was rejected, both at first instance and on appeal,73 essentially on the basis that there was no prior authority for the proposition, and on the basis that it was a test of negligence that should not be extended. Neither of these is particularly convincing, as they do not address the more significant point of how the court should deal with uncertainty or disagreement between clinicians about diagnosis and appropriate treatment. On this issue, a Bolam-like approach seems to have much to recommend it. It must be the case that when faced with a disagreement, the court can reject opinions that are clearly inadequate. The approach allows the court to do so: opinions which are outside the range that a competent body of medical opinion would accept would be able to be ignored by the Court. In the event of a serious disagreement between professionals, all of whom are meeting the standard expected of competent clinicians, the Court would not have to make a decision as to who is ‘right’, a decision the Court is ill-equipped to make. That matter deserves a much more extensive discussion than that accorded in the N case.

C. The Capacity of the Patient If non-discrimination on the basis of disability is a starting point for analysis, the capacity of the patient would seem to be of profound relevance. In England and Wales, non-psychiatric treatment is not imposed on patients who have capacity to consent to the treatment, even in cases where the refusal seems irrational or where the consequences of refusal are serious to the point of fatal. What can the justification be to enforce psychiatric treatment? We do, however, provide physical treatment without consent in the best interests of people who lack capacity.74 The presence of a mental illness does not, of course, necessarily mean that the patient lacks capacity,75 and a parallel 73 74 75

See [2002] EWHC 1911, para 113 –116; [2002] EWCA Civ 1789, para 29. See Mental Capacity Act 2005. Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819, [1994] 1 WLR 290 (H.C.). Regarding the empirical literature surrounding psychiatric

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approach could be adopted in mental health law.76 If this approach were incorporated into English mental health law, persons with capacity could consent or refuse, and patients without capacity could be treated in their best interests, reflecting the position for non-detained psychiatric patients and society as a whole for non-psychiatric treatments. Such an approach is viewed sympathetically by Simon Brown LJ in Wilkinson.77 The view of Hale L.J. was to the contrary: I do not take the view that detained patients who have the capacity to decide for themselves can never be treated against their will. Our threshold of capacity is rightly a low one. It is better to keep it that way and allow some non-consensual treatment of those who have capacity than to set such a high threshold for capacity that many would never qualify.78 Since Wilkinson, cases have viewed the presence of capacity as relevant but not determinative as to whether treatment should be enforced.79 On examination, Hale’s view is problematic. The standard of capacity in English common law and in the Mental Capacity Act 2005 is not really a low one. The classic array of tests of capacity to consent to medical treatment is contained in a paper by Roth, Meisel, and Lidz from 1977.80 They list a range of possibilities, from being able to manifest a choice, up to actual understanding of the information provided. The English test, like many other modern legislative thresholds of

76

77 78 79 80

patients and capacity to consent to treatment, see P Appelbaum and T Grisso, ‘The MacArthur Treatment Competency Study I: Mental Illness and Competence to Consent to Treatment’ (1995) 19(2) Law Hum Behav 105; T Grisso and others, ‘The MacArthur Treatment Competency Study II: Measure of Abilities Related to Competence to Consent to Treatment’, (1995) 19(2) Law Hum Behav 127; T Grisso and P Appelbaum, ‘The MacArthur Treatment Competency Study III: Abilities of Patients to Consent to Psychiatric and Medical Treatments’ (1995) 19(2) Law Hum Behav 149. Such an approach is, indeed, adopted in some jurisdictions: see Ontario, Health Care Consent Act 1996, S.O. 1996, c. 2, sch. A. For a discussion of this legislation, see P Bartlett, ‘English Mental Health Reform: Lessons from Ontario?’ [2001] JMHL 27-43. Available online at ,http://eprints. nottingham.ac.uk/144/.. Since Rogers v Okin, 478 F. Supp. 1342 (Mass. 1979), incapacity has also been pivotal to decisions regarding involuntary treatment in the USA. A similar standard of impaired decision-making is contained in the Scots legislation: see Mental Health (Care and Treatment) (Scotland) Act 2003, s 57(3)(d). Wilkinson at 30. Wilkinson at para 80. The third judge in Wilkinson, Brooke L.J., did not take a view on the relevance of capacity. See, eg, R (PS) v G [2003] EWHC 2335 (Admin) para 116; R (B) v SS [2005] EWHC 1936 (Admin) para 95. L Roth, A Meisel and C Lidz, ‘Tests of Competency to Consent to Treatment’, (1977) 134(3) Am J Psychiatry 279.

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capacity, is higher than any in their paper. It requires not merely an actual understanding of the information in question, but the ability to appreciate the consequences of the choice, and of the other choices open to the patient.81 This is not necessarily a criticism. It may well be appropriate that we insist that patients should have a reasonably developed understanding of the nature and consequences of their treatment choices; but it is not a low standard. Indeed, it is somewhat difficult to see what higher threshold could be phrased in law, and still have the test one of capacity. Hale’s position is further difficult to maintain when the actual case law is considered: the courts have seldom held that a patient has capacity, once that capacity is called into question.82 Hale’s concern that using a threshold of capacity would force the standard of capacity upwards is not convincing: that pressure already exists and will continue to exist for physical illnesses. Insofar as the threshold is to be raised, therefore, it will be raised in any event. It is not obvious why applying the same standard to psychiatric treatments would affect this unduly.83

81

82

83

Mental Capacity Act 2005, s 3(1)(c), 3(4). This largely reflects the common law test relating to capacity to consent to medical treatment existing at the time the statute was passed: see, eg, Re MB (Medical Treatment) [1997] 2 FLR 427; Tameside & Glossop Acute Services Trust v CH [1996] 1 FLR 762; Re L (Patient: Non-Consensual Treatment) [1997] 2 FLR 837. See discussion in P Bartlett and R Sandland, Mental Health Law: Policy and Practice (3rd edn Oxford University Press, Oxford 2007) section 10.4. It would appear that this is not a uniquely English phenomenon. While interpretation of the Scots legislation is still in its early days, the Sheriff’s Court has held that the requirement of impaired decision-making in the Scots act was met on the basis that a patient declined to speak or engage with staff regarding his treatment: see M v Murray, application B45/09, Sheriffdom of South Strathclyde, Dumfries and Galway, 17 April 2009, para 25. This does not suggest a robust approach to the Scots criterion. Section 58 of the Mental Health Act 1983 itself raises a problem of interpretation here that has to some degree vexed the courts. Treatment of a detained patient beyond three months may occur only if either the patient has capacity (as determined either by the responsible clinician or a SOAD) and consents to the treatment or the SOAD certifies that notwithstanding the competent refusal, the treatment should appropriately be given. The articulation of incapacity in s 58 requires that the patient ‘is not capable of understanding the nature, purpose and likely effects of that treatment’: s 58(3)(b). The absence of a requirement of appreciation in this test suggests that it is arguably lower than the common law threshold, and that contained in the Mental Capacity Act 2005. This view is supported by the case of R (X) v Mental Health Act Commission which further emphasises the patient’s ability to understand, rather than his or her actual understanding: (1988) 9 BMLR 77 (DivCt), eg, at 85. This apparently lower threshold has been used in some of the post-Wilkinson jurisprudence to marginalise the role of capacity. In R (B) v SS, the first instance court held under the s 58 test, ‘a patient might be regarded as having capacity even if he does not actually understand the nature, purpose and likely effects of the treatment’: [2005] EWHC 86 (Admin) at para 76. This is not a convincing approach. If a

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While Hale’s argument is problematic, her result should not necessarily be dismissed out of hand. Insofar as the tests of capacity are flexible, let alone manipulable,84 results are unlikely to be consistent, patient is able to understand the relevant aspects of the treatment and yet does not understand them, the question becomes why this is the case. Given that the patient has the relevant abilities, it is difficult to see that actual understanding would not be attainable, given additional effort and, perhaps, disclosure of relevant information to the patient. Thus a patient treated with medication covertly, as was the case in RM v St Andrews [2010] UKUT 119 (AAC), may have lacked actual understanding of the treatment; but this could presumably have been corrected if he were told he was being treated, and for what. This has obvious human rights advantages. The absence of a requirement of ‘appreciation’ is however a real difference between the s 58 test and the approach used for medical treatment more broadly. It is difficult to see a logical reason to adopt a different standard for psychiatric and physical treatments. Not unreasonably, the Code of Practice does not attempt to set different capacity thresholds for treatment under s 58 and for other medical treatments, adopting the Mental Capacity Act approach as the baseline: see Code of Practice, paras 23.28 and 23.29. It is therefore open to question how far the lower test in s 58 is actually applied, and therefore to what degree the distinction between the tests is relevant in practice.

84

The drafting of the Mental Health Act provisions and the decision in the X case pre-date the careful analysis of incapacity law conducted by the Law Commission, a process that both resulted in the passage of the Mental Capacity Act 2005, and in the long run-up to that Act, affected the common law in the area: See Law Commission, Mental Incapacity, Law Com No. 231 (HMSO, 1995); Law Commission, Mentally Incapacitated Adults and Decision-Making: An Overview, Consultation paper 119 (HMSO, 1991); Law Commission, Mentally Incapacitated Adults and Decision-Making: A New Jurisdiction, Consultation Paper 128 (HMSO, 1993); Law Commission, Mentally Incapacitated Adults and DecisionMaking: Medical Treatment and Research, Consultation Paper 129 (HMSO, 1993); Law Commission, Mentally Incapacitated Adults and Decision-Making: Public Law Protection, Consultation Paper 128 (HMSO, 1993). There is no suggestion in the reasons of Simon Brown LJ in Wilkinson that he was considering anything other than the common law standard, and Hale LJ in that case refers to the common law standards specifically as influenced by the Law Commission reports as the basis of her reasoning: see Wilkinson at 66; see also R (B) v SS [2006] EWCA Civ 28, para 33. In that sense, the apparently lower standard of s 58 is a diversion: the comments of Hale LJ are meant to apply to the higher standard of common law, now also contained in the Mental Capacity Act. In any event, if a capacity threshold were adopted as relevant for decisions regarding compulsion base in part on an argument about non-discrimination, it would seem that the same threshold of capacity must be used for psychiatric and non-psychiatric treatment. Subject to the requirements of the CRPD, it is presumably the test applicable to consent more generally that should be considered. The degree to which capacity is insufficiently robust is a matter of dispute. The judicial decisions relating to incapacity do not inspire confidence in the robustness of the concept: see discussion in P Bartlett, ‘The Test of Compulsion in Mental Health Law: Capacity, Therapeutic Benefit and Dangerousness as Possible Criteria’ (2003) 11 Med L Rev 326. More recent empirical literature

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valid, and reliable between decision-makers. This is in itself a reason to raise concerns about the use of capacity as a threshold, based on the Sunday Times threshold discussed above. That said, if an individual is agreed to meet the current standard of capacity, he or she is therefore able to understand the information relevant to the treatment, to retain the information for a sufficient time to make a judgment on it, and to appreciate the consequences of the decision he or she is making, including the consequences of withholding consent to the treatment and the consequences of choosing other treatments, when available. This is a high standard indeed, and the decision made by a person with that standard of capacity warrants considerable deference. The non-discrimination point here is particularly relevant: why would we impose psychiatric treatment on a person making this standard of decision, when we do not do so for people making decisions related to physical health in these circumstances? A rule that a capable person should be able to refuse psychiatric treatment may prove at least one piece of the best way forward. It is not entirely unproblematic, however. This is in part because of the malleability in the concept noted above. It is also because the effects of institutionalisation raise questions about the reality of choices made. This point was made in the YF case, where concern was raised that the applicant ‘could not have been expected to resist submitting to such an examination in view of her vulnerability at the hands of the authorities who exercised complete control over her throughout her detention’.85 This is in part a result of the perceived power of the authorities in the institution, but it is also likely to be a function of the nature of institutional life. While many detentions are now quite short, some are not. Wilkinson, for example, had been detained for 34 years.86 One of the post-Wilkinson litigants had been detained for 10 years,87 and another for 8 years.88 At least since Goffman’s work half a century ago,89 it has been acknowledged that institutionalisation has effects on people, inducing specific forms of behaviour. Whether one now views this behaviour as compliance eroded into an individual by the system, or the generation of resistance reflected by challenges to the system in Foucauldean micro-theatres of power, we are a long way

85 86 87 88 89

suggests a consistency of capacity determination among doctors in a psychiatric setting, however: see R Cairns and others, ‘Reliability of Mental Capacity Assessments in Psychiatric In-patients’ (2005) 187 Br J Psychiatry 372. YF v Turkey, application No. 24209/94, judgment of 22 July 2003, (2004) 39 EHRR 34, para 35. Wilkinson at para 1. R (B) v SS [2005] EWHC 86, para 8. R (PS) v G [2003] EWHC 2335 (Admin), para26. E Goffman, Asylums (1961).

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from the free and informed consent of liberal theory, and refusals of treatment must be understood accordingly. The unreality of voluntariness in the context of consent to psychiatric hospital admissions has long been noted;90 it seems likely that there is a similar haziness surrounding consent to treatment while in psychiatric hospitals, with capacity not really being questioned as long as the individual is taking his or her meds, in circumstances where the patient would not meet any meaningful test of capacity. All these issues may well become more problematic as the CRPD is implemented. On some readings, the CRPD requires us to move beyond the competent/incompetent distinction, to a world where capacity is never entirely lost, and supported decision-making takes a new prominence.91 Such an abandonment of capacity as a concept would be a significant shift in the legal landscape, as a move towards an increased role for capacity has for a number of years been a part of the drive for more progressive and non-discriminatory mental health law.92 While this is not necessarily the only reading of Article 12, it is a sufficiently prominent interpretation that a number of signatories to the CRPD entered reservations to the Convention, protecting their right to allow for substitute decision-making, 93 and initial indications are that it is the reading of the UN Committee on the Rights of Persons with Disabilities.94 Insofar as the result is a lowering or removal of the threshold of capacity, the temptation is to give additional credence to Hale’s view, where maximum capacity was traded off to compulsion of the capable in some circumstances. This would not be consistent 90

91

92

93

94

The groundbreaking paper on this point was J Gilboy and J Schmidt, ‘“Voluntary” Hospitalization of the Mentally Ill’ (1971) 66 Northwestern Law Rev 429. Since that time, there has been a considerable array of academic literature. The matter is further at the core of HL v the United Kingdom, application no. 45508/99, judgment of 5 October 2004 (2005) 40 EHRR 32. See UN Committee on the Rights of Persons with Disabilities, Concluding Remarks on Tunisia, CRPD/C/tun/co/1, para 23; A Dhanda ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?’ (2007) 34 Syracuse J. Int’l L. & Com. 429, 456– 60; Michael Bach and Lana Kerzner, ‘A New Paradigm for Protecting Autonomy and the Right to Legal Capacity’, report to the Law Commission of Ontario, 2010. Available at ,http://www.lco-cdo.org/en/disabilities-call-for-papers-bachkerzner., accessed 16 August 2011. See, eg, N Eastman and J Peay, Law without Enforcement: Integrating Mental Health Law and Justice (1999); J Dawson and G Szmukler. ‘Fusion of Mental Health and Incapacity Legislation’ (2006) 188 Br J Psychiatry 504 –9. See, eg, Australia, Canada, and Egypt. The UK made no reservation on this basis. Copies of all reservations are available online at ,http://www.un/ org/disabilities. accessed 11 May 2011. See UN Committee on the Rights of Persons with Disabilities, Concluding Remarks on Tunisia, CRPD/C/tun/co/1, para 23.

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with the tenor of the CRPD, however, which is specifically designed to minimise compulsion of people with disabilities. These comments serve as a reminder that capacity is not without its problems. And they do suggest that safeguards other than capacity may well be necessary prior to the provision of treatment without consent.

D. Resistance to the Treatment Some of the post-Wilkinson cases have held that the actual resistance of a patient to the proposed treatment is a relevant factor in deciding whether treatment should be enforced.95 This must be correct. The threshold for degrading treatment under Article 3 of the ECHR is met when treatment is ‘such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them’.96 There is nothing to suggest that people lacking capacity are somehow immune to feelings of fear, anguish, or humiliation. The existing English law does allow for the overriding of resistance to treatment where the intervention is in the best interests of a person lacking capacity, if the intervention is necessary to prevent harm and if the intrusiveness of the intervention is proportionate to the seriousness and likelihood of the harm.97 There is no reason not to incorporate that approach into the analysis of compulsory treatment in the Mental Health Act, at least for people lacking capacity. If that is the approach taken, many of the issues that arise in the context of a best interests test, discussed in the next section, will be relevant. In particular, some meaningful processes need to be developed to ensure that the tests do not become mere ‘tick boxes’, but do in fact represent real safeguards. E. Best Interests and Therapeutic Necessity A number of the post-Wilkinson cases adopted variants of a best interests model for compulsory treatment, either through provision of a gloss on the s 58 test as it was then phrased, or independent of that test. The High Court in R (N) v M applied the common law best interests 95 96

97

R (PS) v G [2003] EWHC 2335 (Admin), para 117, distinguishing Wilkinson. See also R(B) v SS [2006] EXCA Civ 28, para 62, discussed below. Kudła v Poland (Application No. 30210/96, judgment 26 October 2000), para 92. The suffering must go beyond that which is inevitable in the context of a legitimate form of treatment or punishment. While an intent to degrade or to treat in an inhuman fashion is relevant to the finding of a violation, it is not a requirement: Peers v Greece (Application No. 28524/ 95, judgment 19 April 2001, para 74; Price v UK, Application No. 33394/ 96, judgment 10 July 2001, para 30. See Mental Capacity Act 2005, s 6.

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test98 – a flexible ‘balance sheet’ approach of risk – benefit analysis that allows for inclusion of medical and non-medical factors, used prior to the Mental Capacity Act 2005 for decision-making for people lacking capacity. Similarly, the Court of Appeal in R (B) v SS extended the statutory language to include a best interests test by implication: The express criteria in section 58(3)(b), namely ‘the likelihood of its alleviating or preventing a deterioration of his condition’ should not be equated with the test of whether treatment is in the best interests of the patient. That question will depend on wider considerations than the simple question of the efficacy of the treatment, such as whether an alternative and less invasive treatment will achieve the same result. The distress that will be caused to the patient if the treatment has to be imposed by force will also be a relevant consideration. English common law and medical ethics both require that medical treatment shall not be imposed without the consent of the patient unless the treatment is considered to be in the best interests of the patient. Thus, while the specified criteria are obviously critical to the decision of whether the treatment should be given, they are not the only considerations that are relevant to that question. The SOAD has to certify that the treatment should be given and we do not see how he can properly do that unless satisfied that the treatment is in the best interests of the patient.99 Now that the criteria in section 58 have moved to an appropriateness standard, it is fair to ask to what degree the new standard mirrors a best interest standard, and insofar as the latter is relevant, how it should be determined. For people without capacity, a coherent argument can be made for the centrality of a best interests test. As noted above, the threshold for treatment other than that provided under sections 63 and 58 is the best interests test provided in the Mental Capacity Act 2005, enhanced by the provisions of that act relating to restraint, if the patient resists the treatment. It is not obvious why psychiatric treatment should be subjected to a higher standard than other medical care. This might suggest that for people lacking capacity, the statutory best interests test represents a sensible way forward. This may be the case, but its employment to this end diverges from current practice in ways that warrant consideration. The Mental Capacity Act test of best interests requires that the views of the person lacking capacity be considered, along with the values and 98 99

[2002] EWHC 1911 (Admin) at para 88–106. [2006] EXCA Civ 28, para 62.

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beliefs he or she would have taken into account had he or she had capacity.100 While not utterly determinative, the intent of the Act does seem to be that these factors are meant to hold considerable sway. This would be a departure from the approach of the Mental Health Act 1983, which would appear to adopt a more medically objective test. The difficulties of fitting non-medical factors into the Herczegfalvy framework have been noted already; in the present context, the question is instead whether the more subjective approach of the Mental Capacity Act test is workable and appropriate. Certainly, it has its advantages. For a patient who would consent to medically appropriate, albeit suboptimal treatment, this test provides a framework to consider the strength and relevance of those views. In cases of manifest objective justification, however, the patient’s preferences could be overridden. While the Mental Capacity Act approach has its merits, it is problematic in that it provides a range of factors for consideration as part of the determination, yet no clear way in which to prioritise those factors. It is all very well to say that the patient’s view should hold sway unless outweighed by objective factors, but how great a clinical or other advantage must there be before the views of the patient are overruled? It is difficult to see that this can be readily codified, but it raises the question of whether the best interest test in the Act is sufficiently clear that consistency of results can be reasonably assured. A test of compulsion must not become arbitrary, so the absence of a robust structure here is problematic. The views of a list of carers are also to be considered in determining the individual’s best interests. This too would represent a departure from the current law (although perhaps not current practice?)101 if applied in a mental health context, as in the 1983 Act has no role for carers or relatives in deciding whether treatment should be imposed. Once again, there are advantages to this. If the patient is to be discharged in the future, the views of the carers regarding treatment may well be pivotal to the treatment’s ongoing success post-discharge. Involvement of the carers while the individual is still in hospital can engage them early on in the treatment process, and establish a relationship of trust between them and the clinical team. There are also problems that flow from this, however. Involvement of carers places the compulsion issue into

100 101

Mental Capacity Act 2005, s 4. In the event that the treatment becomes subject to an opinion by a SOAD, Collins J in R (B) v Haddock makes it clear that the SOAD ‘should, if he thinks it desirable to do so’, consult with the patient’s nearest relative, family, carers, or advocate: [2005] EWHC 921 (Admin) para 8. This is reflected in the Code of Practice at para 24.55.

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a social network, where the tradition in human rights law is to look to the individual as autonomous: relying on carers to justify compulsion may merely shift the human rights issue from the doctor – patient relationship to the family – patient relationship. For the person on the receiving end of the compulsion, this is not necessarily an improvement. Further, the question arises as to how to respond if the carers are resistant to treatment that appears to be medically necessary. If mere consultation is required, then the refusal can be overridden; but if the carer is a holder of a lasting power of attorney (LPOA) for personal care which covers the treatment decision, the Mental Capacity Act approach would preclude the treatment from being given.102 One could, of course, not allow such binding decisions by attorneys in a mental health context, but that raises the discrimination question: what is different about psychiatric treatment that would justify a different regime from physical treatment, where such decisions are binding? Conceivably, such a refusal by the holder of an LPOA might be judicially reviewable, if it was clear that he or she was not applying the best interests test, although there has yet to be a case where this has been tested under the 2005 Act. Such an escape would not apply for advance decisions to refuse treatment under the Mental Capacity Act 2005,103 which raise comparable complexities. To adopt a nondiscriminatory approach, these ought to be as enforceable in a mental health context as they are in any other medical context. This is not necessarily impractical: Ontario’s legislation allows the enforceability of both advance treatment refusals and the decisions of holders of lasting powers of attorney.104 It would however be a significant departure from the current approach to mental health compulsion in England, as it would allow a patient in advance to determine the scope of treatment applied to him or her under compulsion, during a subsequent period of incapacity. That said, if the ethical case were accepted that a competent patient could refuse psychiatric treatment, it is not obvious why the ethical case for the enforceability of advance treatment refusals would not equally follow. For people with capacity, best interests may perhaps be a sine qua non of compulsory treatment, but it cannot be sufficient. People with capacity are permitted to make decisions against their best interests in other areas of life; it is not obvious why decisions regarding psychiatric treatment are different. Not all decisions in an individual’s best interest will be therapeutically necessary. They are different concepts and 102 103 104

Mental Capacity Act 2005, s 6(6). Mental Capacity Act 2005, s 24–26. See Ontario legislation discussed above. Regarding a controversial decision on this matter, see Starson v Swayze [2003] SCC 32, [2003] 1 S.C.R. 722.

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different standards. The argument here closely parallels the distinction between appropriate treatment and therapeutically necessary treatment. Even if best interests are a sine qua non of compulsory treatment of people with capacity, it is not obvious that the Mental Capacity Act framework provides a helpful model of best interests, relying as it does to a considerable degree on ascertaining what the views of the patient would be if he or she had capacity. When the patient in fact has capacity, this is not an issue. It is similarly not obvious what the people required to be consulted under the Mental Capacity Act would bring to the table when the person has capacity. If best interests are simply as perceived by the patient, the test will not assist, since a patient considering treatment to be in his or her overall best interests is likely to consent to it. The use of a best interests test must therefore involve the imposition of a different person’s view of the patient’s best interest onto the patient, raising obvious issues of social control. The ethical justification for such an imposition is at best problematic.

F. The Right to Process The conflicting factors of the best interests test are but one example of a much larger problem. While certainly, considerable improvements can be made to the precision of the statute law regarding treatment in psychiatric hospitals, inevitably the law cannot cover all eventualities, and disagreements will arise. A practical and effective mechanism does need to be established to determine these disputes. This was the point of Wilkinson itself: where it is alleged that an individual’s rights are being violated, there must be a forum to determine that issue, and it must be determined to a reasonable level of certainty. It flows further from Articles 6 and 8: the requirement that an intervention is to be prescribed by law means nothing if the application of the law cannot be challenged in individual cases, to ensure compliance. Leaving the matter to the sole discretion of clinicians is not in the end acceptable: they are likely to be too caught up in the situation to be perceived as objective, and if it is accepted that the test should be more than medical, it is not obvious that they are best placed to balance the overall range of factors for consideration. It is not obvious that the appropriate body to engage in this enquiry needs to be the High Court, or the Court of Protection. It may well be that a suitably trained review tribunal would do at least as good a job. The point at the core of Wilkinson remains strong, however: human rights are at issue, and a meaningful process must be established.

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VI. CONCLUSIONS The compulsory treatment of detained psychiatric patients has long been left essentially to the discretion of the responsible clinician. Few if any legal standards have been applied in the vast bulk of instances, and no legal process is routinely available to patients wishing to challenge their treatment. Wilkinson provided a false dawn in this regard. Hearings were few, and there have been none reported for 5 years. The ECHR jurisprudence in the area is undeveloped and unsatisfactory. With the increasing attention of the last decades paid to human rights in a mental health context, and with the introduction of the CPRD in 2008, it is difficult to see that this is a sustainable situation. The time has come for a serious discussion of when, if at all, compulsory treatment should be imposed. Such a discussion will no doubt raise fears of patients ‘rotting with their rights on’, but this is not the experience in countries that have moved to enhance patient rights in this area: log jams can be broken.105 It further cannot be concluded from the fact that we have always had compulsory psychiatric treatment that it is vital in the future, and it certainly does not follow that the current discretionary system is not open to challenge. An intelligent debate is required, taking into account empirical research into the positive and negative effects of compulsion and the doctrinal frameworks of mental health and human rights.

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In the leading empirical studies, no patient for whom the doctors availed themselves of procedures for compulsory treatment was eventually left entirely untreated: see S Hoge and others, ‘A Prospective, Multi-center Study of Patients’ Refusals of Antipsychotic Medication’ (1990) 47 Arch Gen Psychiatry 949; J Kasper and others, ‘Prospective Study of Patients’ Refusal of Antipsychotic Medication Under a Physician Discretion Review Procedure’ (1997) 154 Am J Psychiatry 483.

Medical Law Review, 19, Autumn 2011, pp. 548–580 doi:10.1093/medlaw/fwr024 Advance Access Publication October 27, 2011

DETENTION AND TREATMENT DOWN UNDER: HUMAN RIGHTS AND MENTAL HEALTH LAWS IN AUSTRALIA AND NEW ZEALAND BERNADETTE MCSHERRY∗ AND KAY WILSON∗∗ Monash University, Clayton, Australia

ABSTRACT Mental health law reform in recent decades has drawn on the international human rights movement. The entering into force of the Convention on the Rights of Persons with Disabilities (CRPD) on May 3 2008 has been hailed by some as signalling a new era in relation to how domestic mental health laws should be reformed. Both Australia and New Zealand have ratified the CRPD and Australia has acceded to its Optional Protocol. New Zealand and the Australian Capital Territory and Victoria have statutory bills of rights which have an interpretive effect, but are unable to render other statutes invalid. Drawing on the results of interviews conducted with fifty-two representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries and outlines what changes, if any, may be brought to domestic legislation in light of the Convention. Keywords: mental health laws, human rights, Convention on the Rights of Persons with Disabilities.

I. INTRODUCTION International human rights discourse has influenced the shaping of modern mental health laws in many developed countries and mental health statutes generally refer to rights somewhere in their provisions. During the 1980s in the UK, Larry Gostin’s concept of a ‘new legalism’, which aimed to introduce procedural safeguards into mental health laws ∗ ∗∗

Professor of Law and Australian Research Council Federation Fellow, Faculty of Law, Monash University, Clayton, Vic 3800, Australia. Research Associate, Faculty of Law, Monash University, Clayton, Vic 3800, Australia. The authors confirm the research meets the ethical guidelines, including adherence to the legal requirements, of the study country.

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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and to regulate the control of treatment by psychiatrists, drew on the European Convention on Human Rights.1 The ‘new legalism’ was reflected in the Mental Health Act 1983 which contained increased rights to challenge detention and to seek review of involuntary detention. Similarly, the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health, which were adopted in 1991, influenced the move towards emphasising rights in Australian mental health laws throughout the 1990s and led to the development of a ‘rights analysis instrument’ to measure the rights compliance of mental health legislation in the six Australian states and two territories.2 The Convention on the Rights of Persons with Disabilities (CRPD) entered into force on May 3 2008. While neither ‘disability’ nor ‘persons with disabilities’ is defined in the CRPD, Article 1 states that the latter term includes ‘those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. Penny Weller has argued that the CRPD’s emphasis on the principle of non-discrimination expands the operation of Article 25 (the right to health) and Article 12 (the right to equality before the law) to encompass effective limitations on involuntary medical treatment through the requirement to develop supported rather than substitute decision-making in health care.3 Tina Minkowitz has gone one step further in interpreting the CRPD as justifying the abolition of mental health legislation because of its discriminatory nature.4 For countries such as Canada and the USA with an entrenched bill of rights which cannot be modified or repealed by the country’s legislature through normal legislative procedure or, as in the case of the UK, a Human Rights Act that forms part of a regional human rights system,5

1 2 3

4

5

P Fennell, ‘Institutionalising the Community’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart, Oxford 2010) 16. H Watchirs, ‘Human Rights Audit of Mental Health Legislation – Results of an Australian Pilot’ (2005) 28(2) Int J Law Psychiatry 99. P Weller, ‘Supported Decision-Making and the Achievement of NonDiscrimination: The Promise and Paradox of the Disabilities Convention’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 85. T Minkowitz, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart, Oxford 2010) 151. Without overstating the role of the Human Rights Act 1998 (UK) in shaping the nature and scope of mental health laws in the UK, it is important to note that regional human rights systems ‘have created additional fora for the protection and promotion of human rights, often through more direct means. Courts and commissions established at a regional level have granted individuals the ability to redress human rights grievances that have not been dealt

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the existence of the CRPD may simply serve to bolster pre-existing human rights structures in relation to mental health. However, Australia and New Zealand both lack an entrenched bill of rights and are not part of any regional human rights system. It would appear that, as a consequence, the CRPD has the potential to influence human rights compliance and alter the scope and content of existing mental health laws in these countries more so than in those countries already steeped in a culture of human rights. John Dawson, for example, has argued that despite New Zealand, the Australian Capital Territory (ACT) and Victoria enacting statutory bills of rights, which have a lesser constitutional status than entrenched bills of rights, governments in Australia and New Zealand ‘retain the power to enact mental health legislation of their choice’.6 He argues that community treatment orders have been legislatively mandated and used much more in Australia and New Zealand than in the UK and Canada because ‘the new Canadian and British constitutional arrangements may preclude their Parliaments lawfully enacting the extensive kinds of powers to enforce community psychiatric care that are now authorised by statute in Australasia’.7 Drawing on the results of interviews conducted with forty-seven representatives of consumer and carer organisations, lawyers, and mental health professionals across Australia and New Zealand, this paper examines the current thinking on human rights and mental health laws in these countries. The next section outlines the statutory forms of human rights in Australia and New Zealand and the ensuing sections examine perceptions of human rights as they pertain to the mental health systems in these countries. The final section outlines what changes, if any, may be brought to domestic legislation in light of the CRPD.

II. STATUTORY FORMS OF HUMAN RIGHTS IN AUSTRALIA AND NEW ZEALAND Australia is the only common law country which does not have a national bill of rights or Human Rights Act. In December 2008, the

6

7

with appropriately at the domestic level or to challenge domestic policies and practices that violate human rights norms’: L Gostin and L Gamble, ‘The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health’ (2004) 63 Med L Rev 20, 47–8. Unfortunately, individuals with mental illnesses, their carers, and families in Australia and New Zealand do not have recourse to any ‘additional forum’ to enforce their rights. J Dawson, ‘Community Treatment Orders and Human Rights’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 148, 151. ibid 151 –2.

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Federal Government set up a committee chaired by Father Frank Brennan AO to conduct a nationwide consultation as to how best to protect and promote human rights. The Brennan Committee handed down its report in September 2009.8 The Brennan Committee noted that the most division of opinion concerned whether or not a Human Rights Act needed to be implemented and, if it did, what form it should take.9 The Committee stated that, of the 35,014 submissions received, 95 per cent discussed the option of introducing a Human Rights Act, and of those, 87.4 per cent were in favour of this option.10 The Committee fell short of recommending that a Human Rights Act should be introduced, but recommended that any such Act be based on the so-called ‘dialogue’ model.11 This model informs the Human Rights Acts of New Zealand, the UK, Victoria and the ACT where a ‘dialogue’ is meant to occur between the three arms of government—the executive, the parliament, and the judiciary—in relation to ensuring legislation conforms with human rights. Where legislation is found by the relevant court to be inconsistent with the rights set out in the relevant Human Rights Act, the legislation continues to operate and it is up to Parliament to respond to the court’s notification of an inconsistency. This is in contrast to the Canadian approach where legislation inconsistent with the Charter of Rights and Freedoms is inoperative to the extent of the inconsistency.12 On April 21 2010, the Australian Attorney-General announced the establishment of a ‘human rights framework’ for Australia, but stated that ‘a legislative charter of rights’ was not included within it.13 The human rights framework will apparently not be reviewed until 2014 and there is little political will to revisit the case for a Human Rights Act in the meantime. 8

National Human Rights Consultation Report (2009) ,http://www.human rightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHuman RightsConsultationReportDownloads. accessed 16 March 2011. 9 ibid 361. 10 ibid 264. 11 ibid 371. 12 Section 52(1) of The Constitution Act 1982 (being Schedule B to the Canada Act 1982 (UK) c 11) which is often referred to as ‘the supremacy clause’ states that ‘[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect’. Part 1 of The Constitution Act 1982 sets out the Canadian Charter of Rights and Freedoms and while section 52(1) is not part of the Charter, it nevertheless enables the courts to strike down laws that violate Charter rights. 13 The Hon Robert McClelland MP, Attorney-General for Australia, Address to the National Press Club of Australia – Launch of Australia’s Human Rights Framework (Canberra, 21 April 2010) ,http://www.ag.gov.au/www/ministers/ mcclelland.nsf/Page/Speeches_2010_21April2010-Addresstothe NationalPress ClubofAustralia-LaunchofAustraliasHumanRights Framework. accessed 16 March 2011.

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In the absence of a national Human Rights Act, the interaction between international human rights law and Australian domestic law is often uncertain. While Australia has ratified many international human rights treaties, they do not form part of Australian law unless they are specifically incorporated by Parliament into domestic law.14 The Federal Parliament has enacted legislation to give effect to some of the international treaties to which Australia is a party, but many international treaty obligations remain unincorporated into domestic law, including the rights set out in the International Covenant on Economic, Social and Cultural Rights15 and some of the rights in the International Covenant on Civil and Political Rights.16 While international law can contribute to the interpretation of domestic law where there are gaps or uncertainty, different interpretations of international principles at the domestic level remain a ‘persistent feature of the complex interface between international and domestic law’.17 There is as yet no developed body of jurisprudence in Australia that can reliably guide decisionmakers in protecting human rights. Two Australian jurisdictions have introduced human rights statutes in order to assist in ensuring legislation conforms with human rights as far as possible. In 2004, the ACT Parliament enacted the Human Rights Act which is an ordinary statute that can be amended or repealed by the ACT Parliament and which does not include a direct right of action for individuals against public authorities or any explicit remedies for a breach of human rights. It requires ACT courts to interpret legislation as far as possible in a way that is consistent with the rights set out in the Human Rights Act. Where legislation is inconsistent, the ACT Supreme Court may make a declaration of incompatibility which does not invalidate the legislation, but requires a response from the government. A review of the Act carried out in 2006 indicated that the Human Rights Act 2004 had led to a greater oversight of the development of legislation, but that it had not led to a flood of litigation.18 In July 2006, the Victorian government enacted the Charter of Human Rights and Responsibilities which came into force in January 14 15 16 17

18

Kioa v West (1985) 159 CLR 550, 570. Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), ratified by Australia 10 March 1976. Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), ratified by Australia 13 November 1980. P Weller, ‘Supported Decision-Making and the Achievement of NonDiscrimination: The Promise and Paradox of the Disabilities Convention’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 87. H Charlesworth and G McKinnon, Australia’s First Bill of Rights: The Australian Capital Territory’s Human Rights Act (Law and Policy Paper 28, Centre for International and Public Law, Canberra 2006).

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2007. Like the Human Rights Act 2004 (ACT), the Charter is an ordinary statute that can be amended or repealed like any other statute. It explicitly excludes any separate right to claim damages for breach of human rights obligations and allows Parliament to declare that legislation explicitly overrides the Charter.19 It mandates that Bills introduced into Parliament must be accompanied by reasoned statements of human rights compatibility and requires Victorian courts to interpret legislation in a way that is compatible with the Charter. The Victorian Supreme Court has the power to make a declaration that legislative provisions are inconsistent with the Charter, but this does not affect the legislation’s validity. Such a declaration simply requires a response to Parliament from the Minister administering the Act. A recent example of this occurred when the Victorian Court of Appeal made a declaration that section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), which deems illegal substances to be in the possession of an accused unless he or she can satisfy the court to the contrary, cannot be interpreted consistently with the presumption of innocence under section 25(1) of the Charter.20 Despite exploring the option of enacting an entrenched bill of rights, in 1990, the New Zealand Parliament enacted the Bill of Rights Act 1990. As with the ACT and Victorian statutes, the Bill of Rights Act 1990 (NZ) does not empower the courts to override inconsistent legislation, but when interpreting legislation, courts are required to favour a meaning that is consistent with the Act. The rights outlined in the Act are not absolute, but are subject ‘only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’.21 The Bill of Rights Act 1990 (NZ) does not provide for a free-standing right to bring court actions against public authorities for human rights breaches, but allows individuals to raise a human rights complaint in the context of other court proceedings. The Act does not expressly refer to remedies for human rights breaches, but the courts have found that a variety of remedies are nonetheless available.22 Overall, the Act has been described as having ‘infused debate, influenced public attitudes, shaped legislation, and improved the conduct of state actors’.23 19 20

21 22 23

s 31. R v Momcilovic (2010) 265 ALR 751. However, on appeal, a majority of the High Court of Australia has ordered that the declaration be set aside on the basis that it either was invalid or ought not to have been made: Momcilovic v The Queen & Ors [2011] HCA 34. s 5. See, for example, R v Shaheed [2002] 2 NZLR 377; Simpson v AttorneyGeneral [1994] 3 NZLR 667. EW Thomas, ‘A Bill of Rights: The New Zealand Experience’ (The Australian National University Comparative Perspectives on Bills of Rights Conference, Canberra, 18 December 2002) 30.

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These statutory bills of rights thus have the power to influence the interpretation of legislation within the relevant jurisdiction, but are much weaker than entrenched bills of rights which have a controlling effect on the capacity of the legislature to enact laws by enabling judges to strike down unconstitutional statutes and regulations or parts of statutes and regulations. Entrenched bills of rights are also often part of a country’s constitution and therefore subject to special procedures in the case of amendments; they cannot be repealed or amended by the legislature at will. As pointed out in the introduction, the Australian and New Zealand parliaments can enact mental health legislation of their choice and, while human rights are mentioned in relevant Mental Health Acts in these jurisdictions, it may be that because of the lack of entrenched bills of rights and the absence of any regional human rights scheme, the human rights ‘culture’ that exists in other countries is still in the process of development in practice.

III. PERCEPTIONS OF HUMAN RIGHTS AND MENTAL HEALTH LAW IN GENERAL Given that there is no national bill of rights in Australia, that the human rights laws in New Zealand, the ACT and Victoria are not entrenched, but rather can be amended or repealed, and that Australia and New Zealand are not part of a regional human rights system, it is worth considering how far a human rights framework for mental health laws has influenced practice in Australia and New Zealand. As part of an Australian Research Council Federation Fellowship project,24 a number of semi-structured interviews have been conducted in Australia, New Zealand, Canada and the UK with psychiatrists, psychologists, members of professional bodies (such as human rights and law reform commissions, service providers, and public advocates), consumer and carer representatives, lawyers, academics, and judges/ decision-makers who had current or past involvement in their relevant mental health systems. The findings reported in this paper form part of a wider qualitative study aimed at exploring the role the law has and should have in improving access to optimal mental health care and promoting and maintaining good mental health, including the 24

A 5-year Australian Research Council Federation Fellowship was awarded to Professor Bernadette McSherry in 2007. The main aim of the Federation Fellowship project entitled Rethinking Mental Health Laws is to explore the role the law has and should have in improving access to optimal mental health care and promoting and maintaining good mental health. As well as the Federation Fellow, the research team for the project now includes an adjunct professor, a postdoctoral research fellow, nine doctoral students, a research associate, an Executive Officer, and three research assistants.

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development of model frameworks for both civil commitment laws, for those with serious mental illnesses and sentencing laws for mentally ill offenders. In conducting the interviews, the researchers were keen to understand the lived experience and practice of mental health law and how what happens in practice may have an impact on emerging issues in mental health law. The researchers were particularly interested in: (i) what issues participants raised, where they could raise any issue in response to the broad stimulus interview questions; (ii) whether there were any common themes in the issues raised by participants; and (iii) any consensus or divergence between issues raised by the participants based on their jurisdiction (such as local versus global issues) or their role in the mental health system (for example, any similarities or differences in issues raised by psychiatrists, consumer representatives or lawyers). For the purposes of this article, the researchers were particularly concerned with understanding how the relationship between human rights and rights-based mental health care in Australia and New Zealand was conceptualised by participants with different perspectives in different jurisdictions. Ethics approval was obtained from the Monash University Standing Committee on Ethics in Research Involving Humans prior to the commencement of the interviews.

A. The Sample Between August 20 2008 and August 25 2010, the researchers sent letters inviting various stakeholders, such as psychiatrists, psychologists, professional bodies, consumer and carer representatives, lawyers, academics, and judges/decision-makers who had current or past involvement in the mental health system in Australia, New Zealand, Canada and the UK, to participate in a semi-structured interview. These persons were identified through the researchers’ informal networks and by contacting the relevant consumer and carer organisations in each jurisdiction and asking them to nominate a person who would like to participate in the study. Based on this approach, the researchers were able to select participants with expert knowledge and extensive professional and personal experience of mental health laws in theory and practice in their jurisdiction with the purpose of obtaining a sample that was broadly representative of people with their perspective. While the sample was diverse and this may have the effect of limiting some of the inferences that can be drawn from it, it also reflected the aims of the study in examining the convergence and divergence of the

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Table 1. Number of participants interviewed by jurisdiction Jurisdiction ACT NSW NZ SA TAS VIC WA Total

No. of sample 10 4 11 7 2 11 7 52

views of individuals with different perspectives and identifying and understanding those different conceptions. Seventy-eight persons were invited to give an interview in Australia (sixty-seven) and New Zealand (eleven) and of these fifty-two agreed to participate in the project. This paper focuses on the results of a total of forty-seven interviews that were carried out in Australia and New Zealand with fifty-two participants between September 2008 and August 2010.25 While this is a small sample that should not be seen as representative of the views of larger populations, the responses raise different approaches to human rights that are worth exploring. A break-down of the number of participants by legal jurisdiction is set out in Table 1.26 The role of each participant is set out in Table 2.27

B. The Interviews The interviews were entirely voluntary and were conducted on the basis that the identity of the participants would not be revealed in any publications without the prior consent of the participant concerned. Each interview lasted for between 30 and 60 minutes, depending on the time available to the interviewee and how much each interviewee 25

26 27

The interviews were conducted by Professor Bernadette McSherry, ARC Federation Fellow, Dr Penny Weller, Post-Doctoral Research Fellow, and Ms Danielle Andrewartha, Research Associate. Participants have yet to be interviewed in Queensland and the Northern Territory. The researchers decided to be very specific with how they categorised the role of participants rather than combining them into broader representative groups, such as ‘clinicians’ or ‘legal professionals’. Given the high calibre of the expertise of the participants, many of them served more than one role in the mental health system and this was also taken into account when the participants were classified into their roles. For example, one participant was categorised as a carer representative/lawyer.

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Table 2. Number of participants interviewed by role Role Academic Psychologist Academic/judicial/decision-maker Carer Carer/lawyer Consumer rep. Consumer rep./lawyer Judicial/decision-maker Lawyer Lawyer/judicial/decision-maker Legal academic No info. Professional bodies Professional bodies/judicial/decision-maker Professional bodies/lawyer Psychiatrist Psychiatrist/judicial/decision-maker Psychologist Total

No. of sample 1 1 6 1 4 1 4 1 1 5 1 11 1 2 9 1 2 52

wanted to say. Most interviews were in person, but there were a few telephone interviews where a face-to-face interview was impractical. Most interviews were on a one-to-one basis between the interviewer and the participant. On four occasions there was a group discussion between the interviewer and up to three participants,28 where this was requested by the participants. All interviews were tape recorded and transcribed by a transcription service, except where participants did not consent to tape recording. In those instances, the interviewer took hand-written notes.29 Each participant was asked to explain his or her own background and involvement with mental health law and practice and to answer the following broad stimulus questions:

28

29

Two interviews conducted in the ACT involved two interviewees per interview, one interview conducted in Victoria involved three interviewees and one interview conducted in New Zealand involved two interviewees. Time and resource constraints and the willingness of participants to talk to the researchers one-on-one or in a group and to have the interviews tape recorded or not meant that the methodology used was not ideal. The limitations on resources also meant that it was impossible to have a larger overall sample and sub-samples in each different group and to be able to continue researching until all issues were exhausted.

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† What do you think should be the appropriate scope of civil commitment legislation? † What options should exist for sentencing mentally disordered offenders? † In what ways could current mental health laws be improved? † Are there any other specific issues relating to mental health laws you think should be addressed by the project? The interviewers asked participants supplementary questions as required to clarify and expand on their answers during the course of each individual interview.30 The interviewers gave more emphasis to those questions that reflected the expertise and interests of each particular participant. For the purposes of this article, each of the forty-seven interviews conducted in Australia and New Zealand were analysed using the computer software package, NVivo 8, using classic content analysis, supplemented by key-word-in-context analysis.31 Classic content analysis involves the constant comparison of the content of interview transcripts to look for and code content with the same theme into categories. The frequency with which the participants discussed those themes is then counted to reveal patterns in the data set.32 The counting of codes that appear multiple times is not intended to be used to quantify the concept in terms of its statistical significance,33 but to assist in 30

31 32 33

Three examples of supplementary questions were: (i) in the context of a discussion about the fusion of mental health and guardianship laws: ‘Can you talk about why you think that doesn’t accord with the UN Principles in a little bit more detail?’, (ii) in the context of a discussion of the Human Rights Act 1998 (UK) with some Australian participants: ‘Can I probe you on another point: you mentioned that you thought that the impact of the Human Rights Act was that it worked as a lever for cultural change. Can you talk about that a little bit?’, and (iii) in a discussion about self-directed care and recovery the interviewer posed the question: ‘Would that extend to forensic patients also?’ NL Leech and AJ Onwuegbuzie, ‘Beyond Constant Comparison Qualitative Data Analysis: Using Nvivo’ (2011) 25(1) School Psychol Q 70. ibid 76. As Margarete Sandelowski points out using descriptions such as ‘very few’ or ‘many’ can be misleading and actual numbers of participants expressing a particular view should be disclosed to allow the reader to judge for themselves the weight they place on a particular claim: M Sandelowski, ‘Real Qualitative Researchers Don’t Count: The Use of Numbers in Qualitative Research’ (2001) 2 Res Nurs Health 230. See also L Richards, Handling Qualitative Data: A Practical Guide (2nd edn, Sage, London 2009) 37–9; A Bryman and RG Burgess, ‘Reflections on Qualitative Data Analysis’ in A Bryman and RG Burgess (eds), Qualitative Data Analysis (Routledge, London 1994) 224. In contrast, Patricia Bazeley points out that ‘there are some, indeed, who would argue that a single case can be a sufficient base from which to generalize for a particular culture, from the point of view that the basic structures of social order pervade the cultural setting, and so

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‘understanding what concepts were predominantly discussed’34 by the participants in the study. In relation to key-word-in-context analysis, the researchers conducted text searches for particular words or phrases to understand how often and the context in which participants were using such words or phrases.35 The researchers did not pre-determine any categories or themes, but rather allowed them to emerge from the interviews in accordance with a ‘grounded theory’ approach.36 The researchers manually coded categories and themes in the entire study until no new categories and themes emerged and saturation was reached. In addition, a manually coded ‘Human Rights’ category was merged with the results of an automated key-word-in-context search for the terms ‘human rights’, ‘civil rights’, and ‘United Nations Conventions’ (collectively, Human Rights), to ensure that all cases where human rights were referred to were contained in the Human Rights category (thereby improving coding reliability). While the participants were not specifically asked any questions about human rights, it is interesting that thirty-six participants out of fifty-two spontaneously referred to human rights during their interviews without being prompted by the interviewer or the interview questions. Those participants who discussed human rights in their interviews were fairly evenly distributed across each of the jurisdictions in which interviews were conducted. This demonstrates a good level of consensus between participants from different jurisdictions and roles in this study that human rights were important in mental health law and practice, despite human rights not being entrenched in the Australian and New Zealand Constitutions and these countries not being part of a regional human rights system. There was, however, considerable divergence between participants in different roles within their respective mental health systems about how human rights were conceptualised in mental health law and practice specifically in relation to their (i) perceptions of human rights in general, (ii) how human rights should be balanced, and (iii) the usefulness of United Nations Instruments. These issues will be discussed in turn.

34 35 36

will be evident within any case which has been part of it . . .’. P Bazeley, Qualitative Data Analysis with Nvivo (Sage, London 2007) 126 –7. NL Leech and AJ Onwuegbuzie, ‘Beyond Constant Comparison Qualitative Data Analysis: Using Nvivo’ (2011) 25(1) School Psychol Q 70, 77. ibid 75. A Straus and J Corbin, Basics of Qualitative Research (3rd edn, Sage, Thousand Oaks 2008).

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C. Perceptions of Human Rights 1. Human rights in general Most participants used the term ‘human rights’ very generally, at times referring to specific rights, such as rights to liberty, privacy, and confidentiality. What is less clear, however, is whether the participants were using the term human rights in the same way with the same meaning, especially where they used the term human rights in a very general or theoretical way. It may be that participants wanted to show the interviewer that they knew that human rights existed or that they thought that the interviewer, being from a study initiated by legal academics, expected them to mention human rights even though they may not be overly familiar with the particular rights as they apply to mental health law. With that rider, what was clear was that participants (i) differed in their own attitudes to human rights and (ii) had different perceptions of what the attitudes of members of the community are to human rights. Attitudes to human rights were clearly divided according to the role of the participants and fell into three categories being: (i) those who felt that there should be more emphasis on human rights; (ii) those who supported the status quo; and (iii) those who felt that human rights had already gone too far in protecting the rights of consumers. Those participants who felt that there should be more emphasis on human rights (four from professional bodies and one consumer representative) were particularly concerned with operationalising United Nations conventions and in creating a human rights culture. Those participants who supported the status quo (one psychiatrist and one academic/judicial decision-maker) felt that the current checks and balances and the tribunal system have overall been successful in protecting human rights and preventing abuses. Those participants who believed that there was too much emphasis on the human rights of consumers in mental health law (four psychiatrists and one carer/lawyer) had various reasons for this attitude. There was a concern that the human rights of consumers over-shadowed the rights of carers (as expressed by the carer/lawyer), a concern that the emphasis on human rights doubted medical judgment and integrity, a view that a general lack of resources meant that from a practical perspective there was no risk that individuals would be treated unnecessarily, and that conversely human rights could create a waste of resources especially in terms of the professional time taken up by tribunal and court hearings. There was also the idea that treatment of mental illness was all that was required to promote human rights and a concern that those

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advocating human rights did not understand the nature of mental illness. As one psychiatrist put it: [A] lot of the problem when you are dealing with people who have severe psychotic illnesses is that they don’t believe they are unwell, and so they are not going to accept treatment unless they are coerced. So the notion of individual liberty and individual rights has to be interpreted in a different kind of way when you are dealing with those sorts of people I think. This, of course, raises the issues of whether the human rights of individuals with mental illnesses are different from the general population; and if so, on what basis can that difference be justified? Participants were also divided by their role in the mental health system in terms of their perceptions of community attitudes to human rights. Typically, participants would say that if those in the community knew what they knew, they would support their point of view. For example, a psychiatrist who mentioned community attitudes stated: [Y]ou actually come down to what society can tolerate . . . I come back to this: the scope of any Act is the balancing act between the needs of the person, the needs of the community, and you might say the human rights framework. In contrast, two consumer representatives who referred to community attitudes were concerned that the community lacked knowledge about how a person’s human rights could be lost when he or she became mentally ill. The first consumer representative stated: The fact that your human rights are lost when you’re under the Mental Health Act is — I mean, the fact that we don’t actually have a human rights charter in Australia is problematic in and of itself, but you know, the fact that you lose your rights. The fact that the rest of the community doesn’t understand quite what it means. I’ve been witness to a number of people who found themselves, you know, older people, or others that have found themselves sectioned because of one reason or another, and they’ve gone ‘But you can’t do this,’ and we have to say ‘Well I’m sorry, but they can.’ And they have no idea. The general community has no idea of what can happen. The second consumer representative stated: It really concerns me that I think particularly in Australia and New Zealand that the worry gauge about these issues is very low. Now if you go to England you can see that when the new Mental Health Act was coming in there, I mean there was huge opposition, and

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combined opposition right from service users through to the College of Psychiatrists . . . so it really concerns me that in these two countries that people are removing these rights from people . . . as [a] matter of routine, not really as a matter of last resort, but I mean there’s the legal issues and then there’s the practice issues and I’m pretty appalled by the practice issues, particularly the routine way people do this, and also without thinking, ‘We must minimise the use of compulsory powers, how can we do this?’, because there’s a myriad of ways you could minimise the use of compulsory powers. In contrast, a carer representative speculated that community attitudes to the human rights of individuals with mental illness would be driven by fear, remarking: You know we are all trying to better and protect the rights of individuals and treat people in a humane and dignified manner as well as protecting the community. But gee it would be interesting to hear what those folk who are not working in the mental health sector in some way or another feel about this, because I’m sure they would have . . . views about all of this, which would probably be quite different to us. They’d probably say lock the lot up. A key-word-in-context search revealed that the concept of social and community tolerance was referred to by several participants who were involved in the study (four psychiatrists, one carer representative, and one consumer representative). This indicates that many of the psychiatrists interviewed were conscious of community or social expectations in thinking about and justifying their role and decision-making. Conversely, the carer representative noted that the taking away of rights by mental health law would not be tolerated by society in any other context, while the consumer representative observed that there was a lack of social tolerance of different points of view. In this way, the participants were aware that social tolerance had an underlying role in setting the boundaries of the amount of respect given to human rights in mental health law. 2. Balancing human rights Many participants observed that human rights are not absolute and that there were often issues surrounding how the human rights of individuals with mental illnesses were balanced against the rights of other individuals in the community as well as against each other. The ‘balancing act’ is a useful metaphor to explain the different ways that participants conceptualised the role of human rights in mental health law and practice. In general, more participants were concerned about how the human rights of individuals with mental illnesses were balanced against the

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rights of the community than how the differing rights of individuals with mental illnesses were balanced against each other. a. The ‘Balancing Act’ between the rights of the individual and the community There were four main ways by which the participants conceptualised the role of human rights when weighing the interests of individuals with mental illnesses against the interests of the community. These can be described as: (i) (ii) (iii) (iv)

the the the the

utilitarian liberal approach; human rights ‘add-on’ approach; human rights ‘safety-net’ approach; and legalistic approach.

(i) The Utilitarian Liberal Approach. The most liberal perspective, from a participant from a professional body, was that ‘human rights should be able to function as far as possible, while avoiding restriction of the rights of others’. This represents a utilitarian liberal approach that has been described as underlying legalistic rights-based mental health models.37 The participants, however, had different views about how far the rights of individuals with mental illnesses should be able to function when being balanced against the rights of the community. For example, carer representatives were concerned that the rights of carers may not be protected where individuals with mental illnesses did not receive adequate treatment. That is, they perceived there to be an imbalance between the human rights of consumers and the rights of carers in the community and that the rights of consumers should not extend so far as to put carers at risk. A legal academic also commented in the context of discussing community treatment orders that human rights are not absolute and that ‘the current security risk-conscious world that we’re now in’ would weigh heavily in striking a balance between individual liberty and community expectations. In contrast, a participant from a professional body observed how the balancing of the rights of individuals with mental illness against the interests of the community could be confounded if a ‘best interests’ test adopted in a capacity model of mental health law did not look at the best interests of the person with a mental illness as an individual. That is, there was a danger that no proper balancing act could be carried out at all if the law was structured in such a way so as the 37

T Carney, ‘Involuntary Mental Health Treatment Laws: The ‘Rights’ and Wrongs of Competing Models?’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart, Oxford 2010) 266.

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‘best interests’ of the individual with a mental illness were simply subsumed within the notion of the public interest and were not permitted to function. (ii) The Human Rights ‘Add-on’ Approach. One psychiatrist participant took the view that human rights were only a secondary part of a much larger ‘balancing act’ between the competing interests driving mental health law. This participant noted that ‘one of the issues is whether human rights so-called is sufficient a criteri[on] alone [on which] to base this legislation. I suspect not’. This is interesting because it suggests that human rights are a separate ‘add-on’ rather than an integral part of balancing the needs of the person and the community. This participant felt that human rights could also be an impediment or a ‘distracting noise’ in the relevant tribunal’s assessment of risk, especially if the tribunal did not include a psychiatrist as a member, because ‘medical practitioners are used to exercising some judgment with a degree of risk . . . but this is often lost in the hubris of and [the] clamour for so-called human rights’. This ‘add-on’ approach may reflect a perception that international human rights law has a limited role to play in the reality of providing treatment for those with severe mental illnesses. That is, there may be a perception that current mental health legislation should be focused more on the protection of the community through treating those with severe mental illnesses than facilitating human rights. (iii) The Human Rights ‘Safety-net’ Approach. A psychologist, in the forensic context, also conceptualised the role of human rights as being external to ‘the balancing act’ between victims (that is, the interest of community protection) and offenders (a high proportion of whom have a mental illness). But, in this conceptualisation, the ‘balancing act’ between the individual and the community was taking place on a high wire, with human rights acting as ‘a safety net’ or minimum standard underneath to deal with any imbalance. This participant was concerned that the rights of offenders, including offenders with a mental illness, were often, for political reasons, pitted against the rights of victims so that ‘. . . you’ve got to the stage now that if you maintain a basic human right of an offender somehow that’s an affront to victims. And so now you’re carving into that safety net of civil rights that affects all of us’. That is, if the safety net is weakened so that vulnerable individuals can fall through the net, it diminishes civil society as a whole and makes the entire ‘balancing act’ more dangerous for everyone.

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(iv) The Legalistic Approach. Another participant, a psychiatrist, described a way in which human rights can be brought into the balancing act to correct imbalances, as follows: [There is a need] to balance up competing interests. The interests of a caring society to provide services to people who are either neglectful of their own care, unable by nature or mental disorder to consent or participate [in] care, versus the civil liberty issues around that . . . Advocacy that helps to balance [rights] and an easy, yet appropriate process for legal review of those legal orders [are needed]. In this model, advocacy and legal review provide the mechanism to balance the human rights of the individual with mental illness against the community and the different rights of the individual against each other. While society is ‘caring’ and paternalistic, the rights of the individual are included as part of the balancing process through legal avenues. b. Balancing the rights of people with mental illness against each other The comments about the balancing of the rights of individuals with mental illnesses against each other reflected a concern about how to balance the rights of the individual to liberty, autonomy, and bodily integrity, especially where the individual may not have decision-making capacity, against the right to access treatment or to health, often where there are limited resources. As one participant from a professional body posed the question: The tribunal can make an order, or not make an order, but it’s also if an order is made and those rights are taken away, how do we as a community, and as a government service, then give that service to those individuals, and how do we limit the you know when those rights they do have certain rights taken away, but they do have other rights, and how do we protect those rights, and how do we ensure that we minimise and be least restrictive in our servicing of them in our treatment of them? Another participant, a psychiatrist, commented: I think the plight of those people who have chronic illnesses which are essentially untreatable, and again a minority of people but those people by and large would not agree that they had a mental illness. Most of them as part of their illness don’t have any insight and I have got to stress that. It’s not that they are being bloody-minded, it’s just that they really haven’t got the cognitive capacity to see themselves as unwell. So those people suffer awful lives, they have terrible, terrible lives at the moment and our society seems prepared to tolerate that, you know? We want to respect their

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autonomy as opposed to offering them some kind of humane existence. . . I would envisage some kind of community where they had . . . individual housing arrangements and 24 hour nursing availability and that sort of thing, where they wouldn’t have to deal with life. They wouldn’t have to deal with traffic. They wouldn’t have to deal with shopping and therefore eating dreadful diets, or not eating at all and sleeping rough and that sort of thing. From this, it appears that the participant was concerned that in balancing rights, society was prepared to give individuals with mental illnesses autonomy at the expense of ‘some kind of humane existence’. In essence, the participant felt that the civil and political rights of individuals with mental illnesses had outweighed the social, economic, and cultural rights to accommodation and better service delivery. 3. Perceptions of United Nations Instruments Eight participants (four from professional bodies, one carer/lawyer, one consumer representative, and two judicial decision-makers) referred to international human rights conventions and the 1991 United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health (the UN Principles) in relation to issues such as: (i) the limitations of conventions; (ii) the usefulness of conventions; and (iii) the CRPD. Six of these participants were from Victoria, the ACT, and New Zealand, suggesting that participants from jurisdictions that have statutory bills of rights had a greater awareness of international human rights conventions and the UN Principles in mental health law and practice. a. Limitations of international human rights instruments There were two kinds of limitations with international human rights instruments noted by the participants. The first related to criticisms of the scope of the UN Principles and their being out of date and the second related to the implementation of those conventions. Specifically, it was noted by a participant from a professional body that: (i) the UN Principles did not sufficiently take into account community treatment; and (ii) the UN Principles were not that helpful in the forensic arena. As a judicial decision-maker put it, ‘we’re signatory to a whole lot of conventions, [but] much of what is said is the usual mouthing of platitudes by governments’. Only one participant, from a professional body,

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referred to the Optional Protocol to the Convention against Torture38 and the fact that the practices of most psychiatric units would fall short of the requirements of the Protocol. b. Usefulness of international human rights instruments Most of those who discussed international human rights conventions, typically participants from professional bodies and consumer and carer representatives, were positive about their usefulness. As one participant from a professional body, in the context of discussing the need to focus on recovery from mental illness, observed: [I]t’s about getting back to the UN Charters around rights of people with disabilities and things like that. They do describe it pretty well and concepts like citizenship and it’s really supporting people to kick on, like have a good life rather than dumbing it down to ‘it’s just these bunch of symptoms’. I guess the unstated view around that is to say it’s a chemical imbalance in your brain, if we can give you the right chemical that will fix it up but in reality like a bout of major illness has a lead up where people may [break] their social networks, they might damage their family support, lose their job, lose their house, lose confidence and be left with perhaps a permanent change in their cognitive abilities or their thought processes in other ways and so then there’s a lot of potential there to support people through those disabling impacts around rebuilding networks with the family, with friends, getting either work or just something that pursues their interest, that kind of stuff. c. The CRPD Only three participants referred specifically to the CRPD (one from a professional body in the ACT, one from a professional body in New Zealand, and one consumer representative from New Zealand). The participant from a professional body in the ACT was interested as to how the CRPD might relate to individuals with intellectual disabilities and mental health problems, especially as a large percentage of people do not see themselves as disabled at all. The other, a participant from a professional body in New Zealand, said of the CRPD: I haven’t analysed it from its coverage of mental health, but I think it’s a good model that mental health and ordinary health have similar rights, not just because it’s mental health and you forgo consent. In that rights analysis review we did in the ’90s and 2000, there is a real trend towards—well if you’re involuntary 38

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by UNGA Res 57/199 of 18 December 2002 (entered into force 22 June 2006).

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when you detain them, you automatically have to have treatment, whereas I think you could have a system where treatment could be voluntary, and then you go the next step if there’s refusal. And then advance directives of course would be relevant in that. The third participant, a consumer representative from New Zealand, was very familiar with the CRPD and said: One really interesting development has been the Convention on the Rights for People with Disabilities. Are you familiar with the article fourteen or something? It’s the strongest statement in international law which really quite unambiguously I think. . .says that a person shall not be deprived of liberty on the basis of their disability. It’s a pretty unambiguous statement that we can’t do compulsory treatment and the special rapporteur on torture has commented on this and so has the office of the human rights [High Commissioner]. . . I’d be very interested to see how this is going to filter down to governments, but I really think it’s a basic human rights issue that’s just not being addressed and I hope that the Convention helps the addressing of it, and I’d like to be alive in a hundred years to see if there’s still Mental Health Acts.

D. Analysis The above overview of participants’ perceptions of human rights and mental health issues in Australia and New Zealand indicates the complexity of the different values and interests of those with different roles in the mental health system. This complexity and diversity of views from participants with a variety of backgrounds makes it difficult to draw general inferences about the role human rights has, or should have, in mental health law and practice in Australia and New Zealand. While no unifying theory or consensus emerged from the interviews, the disparity in views between participants demonstrates that the incorporation of human rights into mental health law in Australia and New Zealand is a highly controversial issue. It is also an issue that, prior to this study, has received little attention. Further research is required to understand and explain more fully the reasons for this diversity and how representative these views are of the broader social context. For example, are participants’ attitudes to the role of human rights in mental health law related to their attitudes to people with mental illness or their level of awareness of treatment approaches that are more respectful of human rights? Or do their attitudes simply reflect an under-developed human rights culture? While it is only possible to make limited inferences to explain the diversity of participants’ views in this study, when analysing the responses of participants, differences in the way participants conceptualised the role of human rights in

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mental health law were evident in four broad groups: (i) participants from professional bodies, (ii) consumer representatives, (iii) carer representatives, and (iv) psychiatrists. Participants from professional bodies and consumer representatives had the most positive attitudes to the operation of human rights in mental health law and practice. They were the most concerned about the lack of community knowledge relating to the loss of rights experienced by individuals with mental illnesses. They took the most liberal approach to the balancing of the rights of individuals with mental illnesses against those of the community and had the most awareness of international human rights instruments, including the CRPD. In general, carer representatives were concerned that there was too much emphasis on the rights of consumers in mental health law and practice at the expense of the rights of carers, and looked to human rights principles to redress that perceived imbalance and to provide them with more protection. Psychiatrists tended to equate human rights with improving the lives of individuals with mental illnesses, their families, and carers and the community by providing treatment. Psychiatrists saw the balancing of human rights as being intertwined with community or social tolerance and were concerned that in striking that balance the rights to liberty and autonomy that allowed individuals with mental illnesses to refuse treatment tended to outweigh the right to health and a ‘humane existence’. Some psychiatrists acknowledged that their powers did have an impact on the rights of individuals with mental illnesses and one accepted the need for advocacy and the right to legal review. It appears that those participants who were more supportive of implementing a human rights culture in mental health services, such as consumer representatives, carer representatives, and participants from professional bodies, looked to human rights principles to ensure their voices could be heard, rather than assuming the views of mental health professionals should be paramount. This may reflect the possibility that consumers and carers wish to increase their rights through law reform, whereas psychiatrists are more concerned about reform in terms of greater flexibility in service delivery. The participants’ different conceptualisations of the role of human rights in mental health law also revealed the wide range of sociopolitical interests involved in the development of mental health law and practice in Australia and New Zealand. This was most clear in relation to how participants conceptualised the ‘balancing act’ between the rights of individuals with mental illnesses with the rights of the community in mental health law into four models being (i) the utilitarian liberal approach, (ii) the human rights ‘add-on’ approach, (iii) the human rights ‘safety-net’ approach, and (iv) the legalistic

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approach. Against this backdrop, the role of community or social tolerance played a role in setting the boundaries of mental health law and the extent to which human rights were respected. The fact that thirty-six of fifty-two participants spontaneously referred to human rights during their interviews indicates that despite the lack of an entrenched bill of rights in Australia and New Zealand or an Asia-Pacific regional human rights system, there is certainly an awareness that human rights are important to the scope of mental health laws in both the civil and criminal law fields. However, it appears that those participants from jurisdictions with a statutory bill of rights had more knowledge of specific international human rights instruments. The question as to how much more knowledge of specific international human rights instruments participants in jurisdictions with statutory bills of rights had when compared with their counterparts in other jurisdictions and whether that knowledge was acquired because of the statutory bill of rights is beyond the scope of the current study.

IV. THE POTENTIAL EFFECT OF THE CONVENTION OF THE RIGHTS OF PERSONS WITH DISABILITIES It is not surprising that only three out of fifty-two interviewees commented on the ambit of the CRPD, because while the CRPD was drafted from 2002 to 200639 and was much anticipated in the academic literature40 and by certain consumer groups who were involved in the negotiation process,41 it did not enter into force until May 3 2008, only 4 months before the first of the interviews were carried out. While this short timeframe means that only limited inferences can be drawn about the lack of knowledge of the CRPD in the mental health sector in Australia and New Zealand, it may be unrealistic to expect that many non-lawyers or policy-makers would have a sufficiently detailed awareness of human rights to be able to name the CRPD and comment on its provisions, even if the CRPD had been in force for longer. Only a few participants named other international human 39

40

41

B McSherry, ‘Protecting the Integrity of the Person: Developing Limitation on Involuntary Treatment’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 112. See for example, L Gostin and L Gamble, ‘The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health’ (2004) 63 Md L Rev 20. See B McSherry, ‘Protecting the Integrity of the Person: Developing Limitation on Involuntary Treatment’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 112 –4 for a discussion of the role of particular organisations, such as People with Disabilities Australia and International Disability Caucus in drafting aspects of the CRPD.

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rights instruments such as the UN Principles which had been in existence for 16 years prior to the interviews taking place. In addition, most participants’ knowledge of human rights was of a high-level rather than based on specific international documents. Future research may, however, reveal whether the CRPD becomes more well known the longer it is in force and whether other factors such as statutory bills of rights, training, and the development of a human rights culture have an impact on the awareness of human rights amongst those involved in the mental health system. Nevertheless, the different conceptualisations of the role of human rights in mental health law revealed by the interviews encapsulates some of the practical difficulties of interpreting and implementing human rights instruments, like the CRPD, in domestic law in Australia and in New Zealand. As John Tobin argues, the expectations of states in signing human rights conventions are a relevant factor in reaching an interpretation of human rights provisions that is persuasive for the international ‘interpretative community’ because states can disengage from the interpretation dialogue if their obligations are interpreted in ways they do not expect, or simply not implement them.42 The interviews reveal the tension between human rights, including those in the CRPD, which is designed to promote the individual rights of persons with disabilities, and the wider socio-political interests that exist within the community in Australia and in New Zealand. These community socio-political interests can have a role in forming states’ expectations, interpretation, and implementation of human rights conventions, especially conventions like the CRPD which attempt to act as a lever for social and attitudinal change. The four models proposed by the interview participants suggest different approaches to resolving this tension by giving different emphases and weight to human rights in mental health law and mental health law reform. This section explores some of the aspects of the CRPD which may serve to influence how human rights issues are perceived and likely to be interpreted and implemented in relation to domestic mental health laws in the future and how the CRPD fits within those four models. As pointed out in Section I, Article 1 of the CRPD includes ‘those who have long-term . . . mental . . . impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’ within the term ‘persons with disabilities’. The rights outlined include the right to life (Article 10), the right to equal recognition before the law (Article 12), the right to

42

J Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23 Harv Hum Rts J 1, 44–9.

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liberty and security of the person (Article 14), the right to respect for physical and mental integrity (Article 17), the right to live in the community (Article 19), the right to education (Article 24), and the right to enjoyment of the highest attainable standard of health without discrimination on the basis of disability (Article 25). What is significant here is that the CRPD combines civil and political rights, which are often referred to as ‘negative’ rights in the sense of freedom from state interference, with economic, social, and cultural rights, which are often referred to as ‘positive’ rights in placing obligations on States Parties to ensure certain rights are upheld. While these two sets of rights have been described as ‘indivisible and interrelated’,43 in practice, civil and political rights ‘have dominated the international agenda’.44 The CRPD is thus significant in outlining a number of obligations to ensure non-discrimination in the areas of employment, education, health, housing, transport, and access to justice.45 The CRPD was the first Convention to be drafted with the full and active participation of non-governmental organisations such that it has been viewed as ‘having been largely written by disabled people’.46 Annegret Ka¨mpf points out that the CRPD ‘recognises that disability is a social construct in which differences in human conditions have led to the exclusion and marginalisation of persons with disabilities’ and that it ‘identifies what adaptations have to be made and what practical measures can be taken to ensure the realization of the human rights of persons with disabilities’.47 In the mental health arena, the scope of four Articles in particular has already been debated. These are discussed in turn.

A. Article 12: Equal Protection Before the Law Article 12 of the CRPD is entitled ‘Equal Protection Before the Law’. Paragraph 2 of Article 12 requires States Parties to ‘recognize that 43

44

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United Nations, ‘The Vienna Declaration and Programme of Action: Report of the World Conference on Human Rights, UN Doc A/CONF. 157/24 (13 October 1993) [5]. P Alston, ‘Putting Economic, Social and Cultural Rights Back on the Agenda of the United States’ in WF Schulz (ed), The Future of Human Rights: U.S. Policy for a New Era (University of Pennsylvania Press, Philadelphia 2008) 120. See, in general, A Lawson, ‘People with Psychosocial Impairments or Conditions, Reasonable Accommodation and the Convention on the Rights of Persons with Disabilities’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 62. A Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34(2) SJILC 563, 618. A Ka¨mpf, ‘The Disabilities Convention and its Consequences for Mental Health Laws in Australia’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 26.

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persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. Paragraph 3 then imposes a duty to ‘take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. This has been interpreted as signalling a move away from substituted decision-making schemes to that of ‘supported’ decision-making.48 Thus, if an individual with a mental illness needs assistance with making a treatment decision, Article 12 implies that he or she needs to be given support to make a decision rather than immediately having a substitute decision-maker exercise that decision in his or her place. The concept of supported decision-making has already been explored in certain legislation, particularly in relation to those with intellectual impairments. For example, section 6(1) of Manitoba’s Vulnerable Persons Living with a Disability Act49 defines supported decisionmaking as ‘the process whereby a vulnerable person is enabled to make and communicate decisions with respect to personal care or his or her property and in which advice, support or assistance is provided to the vulnerable person by members of his or her support network’. Although the Australian government, in ratifying the CRPD, formally tabled a declaration clarifying that Article 12 allows for ‘fully supported or substituted decision-making arrangements . . . as a last resort and subject to safeguards’,50 it is apparent that this Article has already influenced a number of Australian government law reform enquiries into mental health and guardianship laws.51 It is expected that a number 48

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A Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34(2) SJILC 563, 597; P Weller, ‘Supported DecisionMaking and the Achievement of Non-Discrimination: The Promise and Paradox of the Disabilities Convention’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 85; T Minkowitz, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart, Oxford 2010) 151, 157 –9; A Ka¨mpf, ‘Involuntary Treatment Decisions: Using Negotiated Silence to Facilitate Change’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart, Oxford 2010) 129, 142–3. Manitoba, CCSM c V90. Australia’s declaration can be found at: ,http://treaties.un.org/Pages/View Details.aspx?src=TREATY&mtdsg_no=IV-15&chapter=4&lang=en# EndDec. accessed 16 March 2011. See, for example, Mental Health and Drugs Division, Victorian Government Department of Human Services, Review of the Mental Health Act 1986 – Consultation Paper (December 2008) 11; Victorian Law Reform Commission, Guardianship Consultation Paper (March 2011) 84–5; Government of Western Australia, Mental Health Commission, ‘Initiatives and Projects – Mental Health Bill’ ,http://www.mentalhealth.wa.gov.au/Initiatives_ and_Projects/mh_bill.aspx. accessed 16 March 2011; John Brayley, South Australian Public Advocate, ‘Supported Decision Making in Australia’

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of supported decision-making schemes will be trialled in Australia and in New Zealand within the next few years.

B. Article 14: Liberty and Security of the Person Under paragraph 1(b) of Article 14, States Parties are to ensure that persons with disabilities, on an equal basis with others, are ‘not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty’ [emphasis added]. Tina Minkowitz has argued that the latter part of this paragraph means that detention in psychiatric institutions contravenes this right and mental health legislation must accordingly be abolished.52 This view can also be found in a 2009 Report by the Office of the High Commissioner for Human Rights.53 The Report states: Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness. There is a rider to this call for abolition in that the Report then goes on to state: This should not be interpreted to say that persons with disabilities cannot be lawfully subject to detention for care and treatment or to preventive detention, but that the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.

52

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,http://www.opa.sa.gov.au/documents/08_News_&_Articles/Supported% 20Decision%20Making.pdf. accessed 16 March 2011. T Minkowitz, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart, Oxford 2010) 151, 167. Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the SecretaryGeneral, Thematic Study by the Office of the United Nations High Commissioner for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities [A/HRC/10/48] 26 January 2009 [49] ,http://www.un.org/disabilities/documents/reports/ ohchr/A.HRC.10.48AEV.pdf. accessed 16 March 2011.

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It is interesting to note that this reading of Article 14 was mentioned by the New Zealand consumer representative quoted above. This interpretation of Article 14 will undoubtedly continue to form the basis for calls for the abolition of mental health laws, but from a practical viewpoint and in light of the wider socio-political interests revealed by the interviews, it is difficult to imagine involuntary treatment schemes readily disappearing. The above interpretation of Article 14 may be seen as aspirational in that the abolition of mental health laws can be viewed as a long-term goal rather than something that should be given an immediate effect. It may be that jurisprudence in this area will concentrate on the concept of what constitutes unlawful and arbitrary detention as has been the case with the right to liberty and security of the person under Article 9(1) of the International Covenant on Civil and Political Rights. Arbitrary detention may connote unreasonable or unjust detention and traditionally, detention for treatment (including detention on public health grounds of those with infectious diseases) has not been considered either unreasonable or unjust. This Article could therefore be interpreted as requiring due process to be followed before liberty is curtailed.

C. Article 17: Protecting the Integrity of the Person Article 17 which is entitled ‘Protecting the Integrity of the Person’ states that ‘[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’. In the original drafts of this Article, specific mention was made of forced institutionalisation and involuntary treatment but these were omitted in the final version due to differences in opinion as to the scope of this right.54 Tina Minkowitz has argued that Article 17, when read with the prohibition against torture or cruel, inhuman and degrading treatment or punishment in Article 15, provides the basis for understanding forced psychiatric interventions as a violation of human rights.55 Another view is that it will serve to limit certain practices such as restraint and seclusion and possibly protect those unable to consent to treatment form ‘unbeneficial treatment’ or ‘overly intrusive’ 54

55

For background on the negotiations that led to this version of Article 17, see B McSherry, ‘Protecting the Integrity of the Person: Developing Limitation on Involuntary Treatment’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 111, 112 –5. T Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Nonconsensual Psychiatric Interventions’ (2007) 34(2) SJILC 405.

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treatment.56 Again, further clarification is needed as to the scope of this Article.

D. Article 25: The Right to the Enjoyment of the Highest Attainable Standard of Health Article 25 reiterates Article 12(1) of the International Covenant on Economic, Social and Cultural Rights but adds detailed obligations including the necessity to provide ‘those health services needed by persons with disabilities specifically because of their disabilities’57 and to require ‘health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent’.58 While the impact of this Article remains to be seen, the detailed obligations within it certainly raise the bar in relation to positive rights. It may be that this Article can be used to support calls for a right to access mental health services and more focus on ‘voluntary’ rather than involuntary admissions to mental health services.59 E. The Effect of the CRPD upon Mental Health Laws in Australia and New Zealand It is clear that academics and policy-makers in Australia and in New Zealand are now looking to the CRPD as a framework for mental health legislation.60 Its main effect may indeed be in the role it plays in policy formation and the drafting of new legislation. In relation to the four approaches expressed by interview participants to the conceptualisation of human rights listed above, it would seem that the CRPD reflects a utilitarian liberal approach by emphasising the importance of individual rights in the balance between respect for individual autonomy and harm to others. The CRPD may also reflect a legalistic approach to human rights, given that it may influence policy-makers to include provisions in mental health laws dealing 56

57 58 59

60

B McSherry, ‘Protecting the Integrity of the Person: Developing Limitation on Involuntary Treatment’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 111, 121. Para (b). Para (d). See B McSherry, ‘The Right of Access to Mental Health Care: Voluntary Treatment and the Role of the Law’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Hart, Oxford 2010) 379. See, for example, Mental Health and Drugs Division, Victorian Government Department of Human Services, Review of the Mental Health Act 1986 – Consultation Paper (December 2008) 11; Victorian Law Reform Commission Guardianship Consultation Paper (March 2011) 84– 5; Government of Western Australia, Mental Health Commission ‘Initiatives and Projects – Mental Health Bill’ ,http://www.mentalhealth.wa.gov.au/Initiatives_ and_Projects/mh_bill.aspx. accessed 16 March 2011.

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with access to supported decision-making schemes, the use of advance directives and increased access to advocacy services. For example, as part of Victoria’s ongoing review of the Mental Health Act 1986, a community consultation report was released in 2009, stating that the CRPD provided a ‘clear impetus and framework to improve the rights safeguards in the new Act’ by including ‘reforms such as advance statements and a nominated person scheme . . . to support the presumption of capacity’ and ‘a more robust external review system’.61 What seems clear, however, is that the CRPD does not reflect the ‘add-on’ or ‘safety-net’ approach to human rights expressed by two of the interview participants. By emphasising human dignity throughout its articles, the CRPD puts the rights of those with disabilities at the forefront of any potential interference with them. In contrast, the human rights ‘add-on’ and ‘safety-net’ approaches give the CRPD a more limited role in balancing the individual and community interests in mental health law and reform, with more emphasis on risk management and the community interest in treatment provision. The danger of course with this is that the selective incorporation of human rights principles in mental health law could erode the ground-breaking shift in the CRPD from a medical to a social model of human rights and entrench community discrimination. However, the ‘safety-net’ approach serves as a reminder that the community also has an interest in respecting the human rights of its most vulnerable citizens, including those with mental illnesses, because once human rights are devalued for some members of the community, it means that human dignity is devalued by the community generally. Perhaps some of the difficulty in balancing individual human rights and community interests in domestic mental health law is reflected by the CRPD itself which as a whole is clearly focused on the rights of individuals with disabilities rather than third parties. Its preamble does indirectly refer to carers which sets out that States Parties are [c]onvinced that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, and that persons with disabilities and their family members should receive the necessary protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of persons with disabilities.62 61

62

Mental Health and Drugs Division, Victorian Government Department of Human Services, Review of the Mental Health Act 1986 – Community Consultation Report (July 2009) 9. Preamble to the Convention on the Rights of Persons with Disabilities, para (x).

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However, there is no direct reference to any rights of carers, for example, to access treatment for their loved ones or to gain access to care and treatment information. This is a drawback for those arguing for a more communitarian approach to mental health laws.

IV. CONCLUSIONS This article has focused on understanding how the relationship between human rights and rights-based mental health care in Australia and in New Zealand has been conceptualised by participants with different perspectives in different jurisdictions. It is probably fair to say that, as jurisdictions that do not have an entrenched constitutional bills of rights or an overriding regional human rights scheme, Australia and New Zealand have not embraced human rights principles in mental health law in the same way as jurisdictions with more developed human rights cultures. The statutory bills of rights that have been more recently enacted in New Zealand, the ACT, and Victoria using the ‘dialogue model’ have gone some way to ensure that human rights are routinely considered as part of legislative drafting, and are used as an interpretive tool. They also create a mechanism for the courts to alert the executive to legislative inconsistency with human rights principles. However, as John Dawson has pointed out, the ‘dialogue model’ is carefully designed to retain parliamentary control of the way in which international human rights law is incorporated into domestic law.63 Human rights in Australia and New Zealand, therefore, remain subject to broader social and political considerations, as opposed to a judicial focus on individual rights. Hence, the value of international human rights law in Australia and New Zealand could be said to be in the political sphere as much as the legal sphere: that is, the ‘new legalism’ may now be the ‘new politicism’. In this context, the recent development and ratification of the CRPD is particularly significant in Australia and New Zealand because it offers a new focus for rights-based discourse. By creating a social model of disability, the CRPD broadens the debate beyond the confines of a strict medical model. Those interviewed in Australia and New Zealand had a good general awareness of the importance of human rights in mental health law with thirty-six of the fifty-two participants spontaneously referring to human rights in their interviews, despite there being no entrenched bill of rights in Australia or in New Zealand, no regional human rights system and 63

J Dawson, ‘Community Treatment Orders and Human Rights’ in B McSherry (ed), International Trends in Mental Health Laws (Federation Press, Sydney 2008) 148.

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despite the otherwise limited legal status of international human rights in domestic law. However, participants had more knowledge of specific human rights instruments, including the CRPD, in jurisdictions with a statutory bill of rights. While the study allows only limited inferences about how much greater knowledge those participants had or whether statutory bills of rights were the cause of this observation, it suggests that the statutory bills of rights may have promoted awareness of human rights in mental health law in those jurisdictions, even though those rights are not directly enforceable. The diversity of views contained in the interviews also indicated that support for rights-based mental health law was not universal. The divisions between the opinions of different participants reflected the tensions between different stakeholders in the mental health system in terms of their perceptions of their own and community interests. While the study did not explain the reasons for these differences or how representative these differences were of the broader social context, the responses of participants seemed to differ between participants with different roles. In general, participants from professional bodies and consumer and carer representatives had more knowledge of and more support for human rights in mental health law and practice; consumers and carers drew on human rights to support their calls for more freedom and more protection, respectively. Psychiatrists generally had less specific knowledge of human rights, but were concerned that the ‘negative’ human rights had gone too far in the mental health system. Overall, they were more supportive of ‘positive’ human rights. The interview participants also had different approaches to conceptualising the role of human rights in balancing the rights of people with mental illness and the community in mental health law and practice being: (i) the utilitarian liberal approach, (ii) the ‘add-on’ approach, (iii) the ‘safety-net’ approach, and (iv) the legalistic approach. The utilitarian liberal and legalistic approaches may be viewed as more accommodating of the CRPD’s framework for human rights than the ‘add-on’ and ‘safety-net’ approaches in relation to integrating international human rights in domestic mental health law and practice. These complex underlying political considerations mean that it is unlikely that many of the rights set out in the CRPD, such as the right to equal protection before the law (Article 12) and the right to protection of the integrity of the person (Article 17), will be interpreted as broadly as many consumer representatives and the Office of the High Commissioner for Human Rights have advocated. As set out above, the complete abolition of compulsory medical treatment and supervision, based on the CRPD, would be unlikely in the short-to-medium term at least, although as one consumer representative pointed out in their interview, may occur in 100 years.

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On a positive note, the lack of an established human rights culture in Australia and New Zealand has created the opportunity for the CRPD to be used to introduce further safeguards in reforming mental health law and practice. Potentially, the most significant of these may be the introduction of supported decision-making rather than substitute decision-making for individuals with mental illnesses (Article 12), thereby changing the power dynamic between individuals with mental illnesses and those who treat them. Other initiatives may include further regulation of practices like seclusion and restraint, ensuring individuals are not subject to unbeneficial or overly intrusive treatment (Article 17), and the introduction of better access to and resourcing of the mental health system (Article 25). The CRPD may also shift the debate from the balancing act between the needs of the individual with a mental illness and the needs of the community with the human rights framework being an add-on or external factor, to a balancing act between the needs of the individual with a mental illness and the needs of the community within the human rights framework offered by the CRPD.

Medical Law Review, 19, Autumn 2011, pp. 581–605 doi:10.1093/medlaw/fwr023 Advance Access Publication October 27, 2011

THE AGE OF RISK: RISK PERCEPTION AND DETERMINATION FOLLOWING THE MENTAL HEALTH ACT 2007 NICOLA GLOVER-THOMAS∗ University of Liverpool

ABSTRACT Reforms to the mental health law framework for England and Wales, which were introduced by the Mental Health Act 2007, are now having a practical effect on day-to-day mental health decision-making. The 2007 Act amends the Mental Health Act 1983, which governs the compulsory hospitalisation and treatment of people with mental disorder; and represents the culmination of a protracted and controversial reform process which has spanned much of the last 15 years. One of the key foci in the 2007 Act is the question of the risk posed by the patient, primarily to others; a result of both the social and political impetus behind the reform process and mounting public anxiety at the management of the mentally disordered. The new Act seeks, as with past legislation, to find the elusive balance between protecting and facilitating the individual’s autonomy while also providing an effective framework for the wider public right to protection. The 2007 Act solidifies the dominance of risk by providing a legitimating framework in which risk can be assessed, monitored, and managed. This attitudinal change is demonstrated by the gradual and almost insidious adoption of risk terminology within the practical decision-making setting and the increasing use of risk assessment and management tools. This article is informed by an empirical study which examined individual professional and institutional responses to the mental health legislation in relation to risk. It examines whether the amended legislative framework amplifies risk as an increasingly dominant concern within decision-making. The paper then goes on to consider how ∗

Professor of Law, School of Law and Social Justice, University of Liverpool, L69 7ZS, UK, [email protected]. The author would like to thank Professor Michael Dougan and Mr Warren Barr for some insightful suggestions on an earlier draft of this paper. Sincere thanks to Mr John Fanning, PhD candidate and research assistant, to the project. The author confirms the research meets the ethical guidelines, including adherence to the legal requirements, of the study country, Nicola Presley (15 September 2011) 18:15.

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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decision-makers use risk to assist with their daily roles. Extrapolated from data obtained through the study, several models of risk determination are then discussed. Finally, some thought is given to whether the extension of the risk concept has the potential to become more fundamental within the organisation and legitimisation of mental health care. Keywords: Mental Health Act, risk, decision-making processes.

I. INTRODUCTION Mental health decision-making has always entailed an element of risk assessment. Over recent decades it has featured more prominently in the mental health legislation of England and Wales.1 Successive legislative frameworks have reflected the practical reality of risk evaluation and its determination, albeit in a fairly oblique manner. However, following the Mental Health Act 2007, risk assessment and management have become explicit concerns of the civil commitment process. Consequently, a patient’s risk either to self or others necessarily plays a significant part of the mental health decision to engage the civil commitment procedures.2 Yet, the mental health legislation neither defines risk nor delimits the factors relevant to it, and this forms the basis for many difficulties. While soft law, such as the Code of Practice3 and generic NHS Trust Clinical Risk Assessment Tools,4 provide some guidance, what 1

2 3

4

See, e.g., The Lunacy Act 1890, argued by Jones (K Jones, Asylums and After: A Revised History of the Mental Health Services: From the Early 18th Century to the 1990s (Athlone Press, London 1993) ch 6) to represent a ‘triumph of legalism’, provided that no one could be admitted and detained in an asylum without ‘certification’ under a reception order from the judicial authority (a magistrate or a county court judge).The criteria for detention were that the patient had to be certified as a lunatic, insane person, idiot, or a person of unsound mind and ‘a proper person to be taken charge of and detained under care and treatment’. There was no express requirement of dangerousness to self or others, but the petitioner had to state whether the patient was dangerous to others or suicidal. Therefore, though not terminologically explicit, risk to self or others was an important consideration in the decision-making process. See, Department of Health, Code of Practice Mental Health Act 1983 (The Stationary Office, London 2008) para 4.6, 4.7 (hereafter ‘Code of Practice’). Decision-makers may rely on ‘soft law’, such as the Code of Practice, but this is intended to offer broad guidance to decision-makers. While the Code is not legally binding, decision-makers require good reasons to depart from its guidance. Section 118, as amended by the Mental Health Act 2007, confirms this position, as elucidated by the House of Lords in R v Ashworth Hospital Authority, ex parte Munjaz [2005] UKHL 58. Mersey Care NHS Trust, Organisation Portfolio: Clinical Risk Assessment Tools, March 2009. ,http://www.merseycare.nhs.uk/Library/Who_we_are/ Policies_and_Procedures/SA10%20-%20Use%20of%20clinical%20risk% 20assessment%20-%20june%2009.pdf..

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constitutes a risk to self or others is a matter for decision-makers alone. How reliable, valid, and professionally rigorous risk assessments may be is unclear. Bartlett contends that some decision-makers ‘operate on a personal and ad hoc system of interviewing, based on their own experience of what patients have turned out to be dangerous in the past’.5 This approach to risk prediction and determination raises some grave challenges for those working within the mental health system and for those regulating and scrutinising the operation of the legislation, not least the problem that any system of risk assessment and management cannot be wholly accurate.6 For mental health decision-makers, clinicians, and social workers, the risk agenda means that in practice they must endeavour to strike a balance between their patients’ personal freedoms and the public’s safety. The purposive character of the mental health legislation emphasises that decisions should be taken with a view to minimising the undesirable effects of mental disorder, by maximising safety and well-being.7 In theory, risk provides a facilitative tool with which decision-makers may achieve this balance, i.e. by deploying the compulsory powers under the Mental Health Act where a patient’s level of risk becomes so great that he or she poses a threat to either self or others. However, this is necessarily a subjective process and one that is prone to inaccuracy and inconsistency. In order to compulsorily admit a person suffering from mental disorder to hospital, two registered medical practitioners must certify that he or she poses a threat to self or others.8 A patient must suffer from a mental disorder as defined by section 1 of the Mental Health Act 19839 in order for decision-makers to engage the compulsory powers. The standards which the compulsory criteria require are ambiguous10 and as such, decision-makers enjoy a wide discretion to interpret

5

P Bartlett, ‘Civil Confinement’ in J McHale and others (eds), Principles of Mental Health Law (Oxford University Press, Oxford 2010) para 12.19. See also, J Langan and V Lindow, Living with Risk: Mental Health Service User Involvement in Risk Assessment and Management (Policy Press, Bristol 2004) 11 (hereafter Langan and others). 6 See, M Grann and others, Psychiatric Risk Assessment Methods: Are Violent Acts Predictable? A Systematic Review (Summary and Conclusions) 2005. SBU Report No 175 ,http://www.sbu.se/upload/Publikationer/Content1/1/ Risk_Assessment.pdf. accessed 1 February 2011. 7 Code of Practice para 1.2. 8 Mental Health Act 1983, sections 2 (admission for assessment) and 3 (admission for treatment); within both provisions ‘threat to health’ would be seen as sufficient to enable the appropriate provision to be applied. 9 As amended by section 1(2) of the Mental Health Act 2007. Mental disorder can be ‘any disorder or disability of the mind’. 10 Even the belief that a mental disorder exists must only be founded on reasonable grounds that an individual is suffering from such a disorder. For

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relevant factors according to their professional judgment. Sections 2(2)(b) and 3(2)(b) presume that decision-makers will assess a patient’s level of risk, although the provisions neither use the term ‘risk’ explicitly nor delimit the scope of material considerations which might apply. Risk is an open-ended construct for decision-makers to assess and interpret in accordance with their professional judgment and experience. The existing jurisprudence and the considerable work of socio-legal theorists in this area have done little to clarify these issues.11 It is clear that simply restating the statutory criteria will not justify a decision-maker’s admission of a patient under the Mental Health Act,12 yet neither the Act nor attendant case law disclose ‘what’ factors might count towards satisfying the same criteria, and within this how an evaluation of risk of harm might be determined. Similarly, decision-makers may interpret the phrase ‘nature or degree’ separately— where a mental disorder is of a nature warranting detention under the section, but not of a sufficient degree, admission may still be legitimate.13 As such, where a patient’s disorder is at risk of deterioration though has not yet reached this critical point, the patient can be detained on the basis of the nature of the disorder, even though the degree of the disorder is not yet sufficient to warrant intervention.14 As discussed below, the determination of risk within given commitment provisions is also handled by decision-makers as a divisible concept, whereby risk is not seen as serving as a universal measure in mental health practice; but rather, the concept is divisible depending on the context in which it is deployed. These interpretations are hardly surprising given the need for pragmatism in mental health practice. Yet what this broad discretion invites is a more pervasive influence of risk within the decision-making process; unfortunately, the lack of clear definitional parameters surrounding risk presents concerns about just how far risk will be perceived and determined.

11

12 13 14

example, R v Kirklees MBC, ex p C [1993] 2 FLR 187 at 190 and St George’s Healthcare NHS Trust v S [1998] 3 WLR 936 at 961. For a detailed and informative discussion of mental health law reforms in the USA, particularly in terms of the focussed public debate on how decisions are made to find the balance between rights and protection, see P Appelbaum, Almost a Revolution: Mental Health Law and the Limits of Change (Oxford University Press, New York 1994). Bone v Mental Health Review Tribunal [1985] 3 All ER 330. See also, Code of Practice, para 4.76. R v Mental Health Review Tribunal for South Thames Region, ex p Smith [1999] COD 148. See generally, P Bartlett, ‘Civil Confinement’ in J McHale and others (eds), Principles of Mental Health Law (Oxford University Press, Oxford 2010) (hereafter, Bartlett). See also, Smirek v Williams [2000] 1 MHLR 38 (CA) at para 19 in relation to detention for treatment applications under section 3.

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Rose argues that the language of risk seems ‘all-pervasive’ in mental health practice; an observation which has even more pertinence in the more challenging post-Human Rights Act 1998 mental health environment.15 This is unsurprising. In many ways, risk determines the nature, duration, and extent of a patient’s engagement with the mental health services,16 and a patient’s risk profile determines the level of any supervision in the community.17 The significance of risk’s socio-political influence as a policy driver increased during the 1990s and throughout the lengthy period of mental health law reform. Fennell argues that successive governments have pursued a ‘public safety agenda’ in response to concerns ‘about homicides by mentally disordered people’.18 This political discourse has infused public policy and mental health law with the risk agenda. While the Richardson Committee recommended that capacity and autonomy be at the heart of mental health law,19 the Labour Government prioritised public safety ‘in determining the question of whether compulsory powers should be imposed’.20 This paper is informed by data obtained in interviews conducted with individuals employed by Mersey Care NHS Trust, all of whom were involved in mental health decision-making either directly (decision-making affecting individual cases) or indirectly (decisionmaking affecting institutional and organisational design).21 The main 15 16 17

18 19 20 21

N Rose, ‘Governing Risky Individuals: The Role of Psychiatry in New Regimes of Control’ (1998) 5(2) PPL 177 –195, 177. For example, Mental Health Act 1983 (as amended by the Mental Health Act 2007) sections 20 (duration of authority) and 23 (discharge of patients). Mental Health Act 1983 (as amended by the Mental Health Act 2007) sections 17A–17G. Where a patient’s condition is deemed sufficiently controlled to enable a move to the community, an assessment of that individual’s risk will inform the level of care and support provided. For example, for those patients with very unpredictable and challenging conditions, care via an Assertive Outreach Team which offers intensive one-on-one support to an individual in the community might be regarded as the safest option. However, the nature of this service makes it very resource intensive and expensive, so a balancing exercise is required between several, often conflicting, tensions, such as budgetary considerations, availability of services, and the overall risk a patient is thought to pose to others. P Fennell, Mental Health: The New Law (Jordans, Bristol 2007) 6. Department of Health, Report of the Expert Committee: Review of the Mental Health Act 1983 (The Stationary Office, London 1999). Department of Health, Reform of the Mental Health Act 1983: Proposals for Consultation. CM 4480 (The Stationary Office, London 1999), ch 3, para 4. This study was funded through tender to the Mersey Care NHS Trust Research and Development Funding Scheme 2008–2009. See, N Glover-Thomas, An Investigation into Initial Institutional and Individual Responses to the Mental Health Act 2007: It’s Impact on Perceived Patient Risk Profiles and Responding Decision-Making (Mersey Care NHS Trust Final Research Report, Liverpool April 2011) 1 –170. Research Ethics Approval was obtained from the NHS Liverpool (Adult) Research Ethics

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objectives of this study were 2-fold. First, given the growing political emphasis on the risk agenda and the breadth of interpretive scope within the Mental Health Act 2007, the study sought to gain a clearer understanding of how risk was perceived and interpreted by mental health decision-makers working under the governance of the Mental Health Act 2007.22 Secondly, the study sought to identify the impact of risk on the civil commitment procedures by investigating decision-makers’ experiences following the 2007 Act. In particular, focus was placed upon the nature and extent of risk in decisionmakers’ fulfilment of their legal responsibilities and how risk influenced decision-making, if at all. This paper shares some of the findings of the study and examines current perceptions of patient risk-profiles, the influences of socio-political trends towards risk assessment and its management and how this is transposed into decision-making in practice.

II. THE UNDERSTANDING OF RISK AND ITS DETERMINATION WITHIN THE CLINICAL MENTAL HEALTH SETTING A. Difficulties of Definition When examining NHS Trust organisational clinical risk assessment tools, it quickly becomes clear that ‘risk’ is both a nebulous and fluid conception; and something negative that is to be avoided or minimised. Determining risk is initially a hermeneutic exercise. It then becomes a process of transposing this interpretive problem into something which offers a practical structure (within a statutory framework). This is by no means an easy exercise, particularly when the decision-maker within the mental health context rarely has a legal background. For example, the process of risk assessment is often an ‘estimation of risk potential based on . . . [an] . . . understanding of the presence and relevance of certain conditions that . . . [are] . . . assume[d] to be “risk factors” and the absence of certain other conditions that . . . [are] . . .

22

Committee (Ref: 09/H1005/54) and Mersey Care NHS Trust Research Governance approval was obtained prior to the commencement of the interviews. The empirical study began with an initial meeting of the study’s focus group which comprised key mental health decision-makers with considerable experience and cutting across all levels of mental health care provision from acute in-patient services through to Community Mental Health Teams (CMHTs). This was followed by nineteen semi-structured interviews with psychiatrists, Assertive Outreach Practitioners, Approved Mental Health Act Professionals (AMHPs), hospital managers, and several administrators involved in different aspects of legislative implementation on the ground.

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assumed to be “protective factors”’.23 Likewise, efforts to define risk are often formulated in terms of the function of the process. This functionalist stance recognises the risk determination process as being one which can ‘prevent’ hazardous outcomes from occurring, or at least to ‘reduce’ and ‘minimise’ the impact of such risk on others. Indeed, clinical risk assessment tools are generally couched in language that focuses on ‘negative’ outcomes, such as the risk of violence to others or the risk of an individual neglecting himself; which, in turn, then gives the appearance that risks associated with a diagnosis of mental disorder are best avoided. These NHS Trust definitions seek to position the particular organisation apropos the conception of risk within an abstract sphere of possible risk assessment and management protocols; for example, the institution’s position on personality disorders will feed into the daily decision-making processes of the individual professional. Such broad brush definitions seek to define what the risk is, to the extent that risk is deemed a legitimately acceptable consideration in the decisionmaking process, yet leave sufficient scope for wide professional discretion in individual cases. Unfortunately, while such definitions clarify the ‘abstract’ concept of risk, what actually constitutes a ‘risk factor’ ‘in practice’ is left to the discretion of decision-makers to determine in accordance with their professional judgment and experience. The Mental Health Act neither defines risk nor delimits the scope of factors pertaining to it. This highlights a tension between promoting a degree of pragmatism, essential to mental heath practice by not prescriptively fettering decision-making, and providing clarity in such decision-making through prescriptive, and consequently easily predictable, criteria. Moreover, clear criteria also promote more effective rights protection. . . . The European Court of Human Rights (ECtHR)24 recognised that flexibility is essential, but, where individual liberties are at stake, deprivations of rights should not result from administrative discretion or be arbitrary in any way.25 It is perhaps telling that without a clear definitional guide under the 2007 Act, there was a significant variation in the meanings attributed to risk by decision-makers in the research sample. The prevailing attitude was that a patient’s risk to self (including risk to health) or others provides the primary basis for all mental health decision-

23 24 25

Mersey Care NHS Trust, Organisation Portfolio: Clinical Risk Assessment Tools, March 2009, p 4. Sunday Times v the United Kingdom, Application No. 6538/74, judgment of 26 April 1979, A.30 (1979) 2 EHRR 245, para 49. HL v UK (App no 45508/99) [2004] ECHR 471.

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making, but, despite this central role of risk in the decision-making process, all participants admitted that there was no comprehensive definition of the concept with which they worked. It was anticipated that this divergence in the understanding of risk might be more evident among particular professional groups owing to the different professional perspectives and agendas. In fact, no evidence of this emerged from the study; rather, it found that definitions of risk did not alter according to a decision-maker’s background—there was no connection evident between a decision-maker’s professional background, experience, or environment (for example, hospitals or community-based facilities) and his or her definition of risk. This was a counter-intuitive finding and one which can be explained in several ways, though a likely explanation would be the strong professional relationships that exist within the mental health context. The statutory decision-making framework requires effective joint working to enable decisions to be made and duly processed; in the research sample, the strength of these relationships was particularly evident, offering the potential for a blurring of traditional professional boundaries. It appears that decision-makers apply self-authored ‘working definitions’, which appear somewhat esoteric and abstruse. For example, it was noted by one participant that ‘. . . risk is . . . a slightly wide version of safety’. Often the decision-maker’s understanding of the conception of risk was tautological and, predictably, a definition of risk representing a rephrasing of the statutory criteria was common among the sample. Of greater concern, some professionals appeared to read provisions into the Mental Health Act that simply do not exist. One participant, for example, noted that defining risk under the legislation involves a distinction between ‘risk of harm’ and ‘risk of dangerousness’ and that these ‘ . . . [have] . . . two different meanings within the Act’.

B. Professional Perceptions of ‘Risk’ Castel defines risk management as ‘the identification, assessment, elimination or reduction of the possibility of incurring misfortune or loss’. In his view, risk has ‘become an integral part of the professional responsibility of all those involved with psychiatry’.26 The psychiatrists interviewed as part of this study demonstrated the truth of Castel’s definition and assessment of risk. There was a clear recognition that risk is an integral part of the decision-making process under the 26

R Castel, ‘From Dangerousness to Risk’, in G Burchell and others, The Foucault Effect: Studies in Governmentality (Hemel Hempstead, Harvester Wheatsheaf 1991).

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Mental Health Act; with clinicians often responding to perceived risks depending on whether they are deemed ‘dynamic’, ‘static’, ‘acute’, or ‘chronic’. They classified risk factors in this way to distinguish historical (static) and future (dynamic) trajectories of a patient’s condition: (i) static risk factors relating to historical events which cannot be changed or reversed, for example, the age at which the first violent act occurred; and (ii) dynamic risk factors that can and often do change over time, for example, substance misuse, housing arrangements, and support networks. The assessment of risk seeks to determine the probability that an adverse event will occur at a given point in time. The changing nature of a patient’s profile means that assessment is necessarily an ongoing and evolving process, which in turn becomes part of a continuum of care and treatment. Different factors can increase or decrease a patient’s level of risk.27 Such factors can include: † † † † † † † †

dysfunctional family background; non-compliance with medication; low socio-economic circumstances; difficult temperament; low living standards; community problems; low self-esteem; alcohol or substance use; and previous trauma.

Some risk factors may act as protective mechanisms. For example, the responsibility attendant on raising a family may dissuade a service user from acting on suicidal ideation. In consequence, it is clear that decision-makers will often have to go beyond the ‘clinical’ when assessing and determining risk. This ‘beyond clinical’ approach to risk assessment is very functional in character, and mirrors the Department of Health’s risk framework, published in 2007.28 This guidance relates to three areas of risk: violence (including anti-social and offending behaviour); self-harm or suicide; and self-neglect. Given that the objective of risk management is to find a way of ‘reducing the risk of harm occurring and increase the potential for a positive 27

28

For a detailed evaluation of risk factors within mental health, developed over a twenty-year research period, see, J Monahan and H Steadman, Violence and Mental Disorder: Developments in Risk Assessment (John D. and Catherine T. MacArthur Foundation Series on Mental Health and Development) (University of Chicago Press, Chicago 1996). Department of Health, Best Practice in Managing Risk (Department of Health, Accepted set by nicola, London 2007).

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outcome’,29 it is expected that a decision-maker will, in the first instance, decide how such risk might become acute and what triggers this: ‘The process involves identifying and describing the predisposing, precipitating, perpetuating and protective factors relating to the risk, and how these might interact to produce an increase or decrease in level of risk’.30 The Department of Health recommends that every risk formulation should have attached to it a plan that makes clear what should be done if and when warning signs become apparent. Nevertheless, despite the operation of a ‘harm-reduction model’31 that is designed to tackle risks, interviewees were generally unwilling to offer clear examples of factors that they ‘would’ regard as ‘almost-always’ pointing to risk in practice. It is contended that this reticence stems largely from the concern that such a step could fetter future professional discretion. The central problem with the pragmatic approach identified above is that it bears little relation to the formal legal provisions. Indeed, it may compromise patient safeguards by relying so heavily on a high degree of professional discretion. When this is placed within the socio-political context, decision-makers may feel compelled to construct a risk profile before deciding whether evidence indicates the need for a compulsory detention response, particularly for those patients with a long and tempestuous psychiatric history. In seeking to strike a balance between the need to ensure adequate governance of decision-making, on the one hand, and recognising that risk determination ‘is not a science’ and has an ‘organic quality’, on the other hand, decisionmakers face potentially intractable tensions. An observation by a psychiatrist within the research sample was that risk was often deemed to be ‘the possibility of adverse incident[s] of harm coming either to a person or to others’, which suggests that decision-makers must seek to quantify the probability of hazards occurring. Whether the risk agenda is gently shifting the rationale of mental health decision-makers remains an open question. If, indeed, risk has distorted the decision-making process, some serious implications may ensue. Of particular concern is the question whether risk is now displacing other considerations in decision-making? Kempsell et al. acknowledged as far back as 1997 that, social and medical services ‘ . . . at both a policy and practice level are increasingly focused on issues of risk. [It is 29

30 31

A Perry and others, Mental Health (Youth Justice Board, 2008) 1617. ,http ://www.yjb.gov.uk/Publications/Resources/Downloads/Final%20Mental% 20Health%20source.pdf. (last accessed on May 15th 2011). Ibid 17. ‘Harm reduction’ is a phrase that defines policies, programmes, services, and actions that work to reduce the health, social, and economic harms to individuals’ communities and society that are associated with the use of drugs and is commonly linked to mental health management.

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postulated] . . . that risk assessment, risk management, the monitoring of risk and risk-taking itself are rapidly becoming the dominant raison d’eˆtre of such agencies, thus supplanting ideologies of meeting need or welfare provision’.32 This attitudinal revolution has been demonstrated by the adoption of risk terminology within the practical decisionmaking setting and the increasing use of risk assessment and management tools.33 This notion that risk is self-evident was pervasive amongst many of the research participants. As identified above, several psychiatrists restated or paraphrased the statutory admissions criteria when asked to define risk—a tendency that may be termed the ‘risk is risk paradox’, in which decision-makers define the concept circuitously without any elucidation of which factors actually constitute risk. Despite risk’s open-ended quality, one research participant hypothesised that if one hundred patients, hitherto unknown to mental health services, presented before one hundred sets of gatekeepers, they would all come to the same conclusions. This belief was drawn from the notion that practitioners’ professional imperatives would ensure that the concept of risk generates consistency in the aggregate. Although the concept lacks certainty, the research participant considered that decision-makers’ outcomes are self-regulating and so dictated by an internal governance system. However, this conflicts with existing research undertaken by Peay, which suggests that mental health decision-making by teams of joint-decision-makers is neither consistent nor predictable, but is instead arbitrary and uncertain:34 [I]t is readily apparent that whilst the facts of [a patient’s] circumstances may remain the same, their interpretation will depend very much upon the individuals who are required to assess him. Or, whilst ‘no two cases are the same’; no single case is likely to look the same to any two individuals.35

32

33

34 35

K Kemshall and others, ‘Concepts of Risk in Relation to Organizational Structure and Functioning within the Personal Social Services and Probation’ (1997) 31(3) Social Policy Administration 213 –232 at 213. The difficulty is how to strike a balance between the implicit public protection objectives of the 2007 Act while also recognising that the emergence of risk management processes have seriously eroded and undermined trust between the individual and professional. See M Power, The Audit Society (Oxford University Press, Oxford 1997). J Peay, Decisions and Dilemmas: Working with Mental Health Law (Hart Publishing, Oxford 2003) (hereafter ‘Peay’). Peay 20. Indeed, Peay found that only 40% of joint-decision-making between psychiatrists and Approved Social Workers were ad idem in recommending compulsion under the Mental Health Act 1983.

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Crucially, in tandem with the belief that risk was deemed a largely unrestricted paradigm, just under half of the sample also believed that the Mental Health Act 2007 introduced a broader definition of risk distinct from the detention criteria. This is erroneous, as a definition of risk is omitted within the legislation. Fifty-eight per cent of the sample interpreted the law in a way which presupposes that considerations of risk occur in isolation, separated from the Act’s detention criteria. While this may be the case in practice (when dealing with non-compulsory patients, for example), this distinction between the risk concept and the detention criteria reveals a disconnection between the legal requirements and practical necessity. The task of finding an effective equilibrium between patient rights to liberty and meeting the public protection agenda is necessarily difficult, yet several psychiatrists acknowledged that at times their own professional discretion was also fettered by the wider influence of public policy.36 Sometimes admitting a patient to hospital is not clinically justifiable though maintaining them in the community presents significant dangers, if mishandled. Often psychiatrists who are based in Assertive Outreach Teams must consider both the ‘short-term’ risks, for example, the risk of harm to members of the public when the patient was not admitted, and ‘long-term’ risks, for example, the risk of irreparable damage to the therapeutic relationship following a patient’s admission. Also, decision-makers operating in Assertive Outreach Teams37 often work at a higher level of risk as patients tend to have chronic and enduring mental health difficulties which are often difficult to manage, yet they are cared for in the community. This particular type of service provision requires very careful management of patients, yet service providers often demonstrate a greater willingness to take positive risks38 which might increase the risk of harm occurring in the short term

36

37

38

K Heilbrun, ‘Prediction versus Management Models Relevant to Risk Assessment: The Importance of Legal Decision-Making Context’ (1997) 21(4) Law Hum Behav 347 –359. Assertive outreach is designed to reduce hospital admissions; reduce length of stay when hospitalisation is required; to increase stability in the lives of service users and their carers/family; and, to improve social functioning in the community environment. Assertive Outreach Teams tend to be made up of a variety of staff from health or social backgrounds, including psychiatrists, nurses, social workers, and occupational therapists. These teams have a lower case load than traditional CMHTs; they see their clients more frequently and stay in contact, even when there are engagement problems. Such care is often provided in the patient’s own environment. For more detail on this mode of psychiatric care and support, see, T Burns and M Firn, Assertive Outreach in Mental Health: A Manual for Practitioners (Oxford University Press, New York 2002). Positive risk taking occurs when a decision is made to weigh up the potential benefits and harms of exercising one choice of action over another, with

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but have a much greater therapeutic benefit to the patient in the longer term. Such decision-making is labelled positive risk taking, because the therapeutic benefit to the patient of a particular care and/or treatment decision is taken over and above all other risk concerns. On positive decision-making, one research participant indicated that risk-taking forms an integral part of a mental health decision-makers’ process. It was explained that, for some cases, it necessitates decision-makers to take a long view. For instance, when a patient has a history of recurrent self-harming behaviour, often intervention is regarded as more likely to reinforce that behaviour; so a decision is made to step back from the intervention. However, with the increasing public policy pressure on decision-makers to place risk of harm at the top of the agenda, they may become much more cautious in their interactions with patients which may ultimately jeopardise such positive risk taking approaches in the future. From this, it is contended that the conception of risk does not serve as a universal measure in mental health practice but is, instead, seen as a divisible notion depending on the context in which it is deployed.39 Instead of acting in a binary sense, risk may apply on different levels. Terms like ‘significance’, which were used frequently by all members of the research sample, possess no legal basis. . . . They serve only to modify the concept of risk across a practitioner-constructed continuum. Moreover, the data suggest that decision-makers only intervene using the compulsory powers where risk goes ‘above and beyond’ a predetermined level, without elucidating what that level or limit might be. This raises concerns about the true purpose of the Mental Health Act: does it require that patients with a high risk profile be detained in hospital for assessment and/or treatment?40 Or should it facilitate medical intervention for these patients in the community?41

39 40 41

particular emphasis on the positive potentials and stated priorities of the service user. ‘It involves using available resources and support to achieve the desired outcomes, and to minimise the potential harmful outcomes. It is not negligent ignorance of the potential risks . . . it is usually a very carefully thought out strategy for managing a specific situation or set of circumstances’, see S Morgan, ‘Positive Risk-taking: An Idea Whose Time Has Come’ (2004) 10(10) Health Care Risk Report 18-19. See also D Carson, ‘Developing Models of Health to Aid Cooperation between Law and Psychiatry’ (1996) 6(1) Crim Behav Mental Health 6–10. For example, one research participant referred to risk in terms of significance, implying that decision-makers do indeed interpret it as a ‘divisible’ concept. G Szmukler and F Holloway, ‘Reform of the Mental Health Act: Health of Safety?’ (2000) 177 Br J Psychiatry 196 –200. Community Treatment Orders (CTOs) may offer the solution to this very real concern. A patient who has been subject to a ‘treatment’ section in hospital may be eligible for a CTO. However, it is quite possible that the CTO regime in England and Wales, which has a ‘least restrictive’ rather than ‘preventive’

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This important question aside, risk has been and remains a fundamental and integral part of the process of mental health decision-making.42 Many participants demonstrated the ubiquitous nature of risk—the fact that risk was generally recognised as the universal currency within mental health practice. However, while they claimed to be comfortable using the concept, their definitions of risk were, as identified above, either circular or lacked a convincingly legitimate and consistent application. For these reasons, ‘risk’ possesses wide semantic variation in mental health practice, encompassing both clinical (e.g. suicide ideation) and non-clinical factors (e.g. the patient’s socio-economic background). This wide hermeneutic stance confers a freer hand on decision-makers, but it also promotes inconsistency and diminishes certainty in reaching decisions. Consequently, an individual subject to the mental health legislation may not know what his or her position is, or what it is likely to be, at any given point in the process. The net result of indistinct criteria and a lack of clarity in the implementation of the law is twofold: it potentially jeopardises individual patient rights, while also undermining public trust in the system as a whole. It should be made clear that research participants involved directly with patient care were all strongly motivated by their patient’s welfare; they had an explicit awareness of ‘rights’ and the Human Rights Act 1998. However, the actual decision-making process, as explained by the interviewees, habitually appeared divorced from the broader rights-based statutory and jurisprudential mechanisms that exist to protect the rights of individuals. The various interpretations of risk that emerged in this study stem from the concept’s fluid character and the minimal guidance provided by the Mental Health Acts and associated soft law, such as the Code of Practice. The existence of such varying interpretations has potentially significant consequences. For those involved in making decisions with individual patients, the individual conceptions of risk they applied had considerable impact upon the outcomes for those patients. Perhaps of even greater concern, though, is the impact for those who

42

character, will offer little scope to deal with patients who sit squarely between the acute in-patient service and the community mental health service and are often dealt with by Assertive Outreach Teams. For a detailed discussion of the merits and difficulties surrounding CTOs, see R Churchill and others, International Experiences of Using Community Treatment Orders (Department of Health, London March 2007) ,http://www.dh. gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/ dh_072728.pdf. accessed 28 February 2011. For a wider discussion on how risk is used to define and regulate activity in several areas, see C Hood, H Rothstein and R Baldwin, The Government of Risk Understanding Risk Regulation Regimes (Oxford University Press, Oxford 2001).

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make decisions at an administrative level, which can have a wider impact on the effective working of both the organisation and, ultimately, the mental health legislation itself. Such persons, often administrators and ex-clinicians with legal advice roles, who work at the margins of clinical activity, but are central to the clinical/legal interface are at the heart of the Trust’s operations. Any erroneous interpretations of law by them have the potential to become embedded in the Trust’s institutional framework. In-house training provision is an obvious avenue for this entrenchment of misunderstanding to take place. When coupled with evidence that these ‘administrators’ exhibited the same uncertainties about the definition of risk as all the other research participants, their roles could have the potential to influence the establishment of procedural norms within the organisation. March and Simon found that a decision-maker’s organisational and social environment can often determine what consequences may be anticipated from a given decision.43 From this, the organisational structure can also feed into alternative decision-making processes that take place.44 How risk is interpreted and applied within the practical setting will be likely to feed into the institutional training which will then create a self-fulfilling template of risk perception and responding management processes at a broader organisational and institutional level.

III. MODELS OF RISK DETERMINATION IN MENTAL HEALTH A. The ‘Risk Recipe’ Model The study began with the hypothesis that decision-makers establish a patient’s risk profile with reference to evidence of existing ‘factors’; these then provide evidence to legitimise the use of the Mental Health Act’s compulsory powers. Placing this hypothesis within a theoretical framework, Honore´’s recipe model of causation in tort law is borrowed. Honore´ posits that ‘a cause is a necessary member of a set of conditions together sufficient to give rise to a given consequence’.45 He argues that causing an outcome is analogous to ‘completing’ a recipe—the culmination of factors or ‘ingredients’ generates a result.46 In many ways, it is 43 44 45 46

H Mintzburg, ‘Structure in 5’s: A Synthesis of the Research on Organization Design (1980) 26(3) Management Sci 322 –341. J March, H Simon and H Guetzkow, Organizations (2nd edn Blackwell Business, Oxford 1993)160. T Honore´, Responsibility and Fault (Hart Publishing, Oxford 1999) at 2 (hereafter, ‘Honore´’). Honore´ 120.

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contended that this process mirrors mental health decision-making—a decision-maker will conclude that a patient poses a risk to self or others where the requisite combination of factors or ‘ingredients’ (both clinical and non-clinical) exists in his or her case. This may be termed the ‘risk recipe’ model. To ascertain whether this ‘risk recipe’ model reflected mental health decision-making, two related issues were addressed during the interviews: (i) whether staff considered the ‘risk recipe’ model a fair representation of their decision-making processes; and, if so, (ii) which ingredient or combination of ingredients would lead decision-makers to the conclusion that a service user poses such a risk to self or others that it is necessary for him or her to be compulsorily detained under the Mental Health Act? It has already been identified that the relevant ingredients that suggest a patient poses a risk to self or others are not defined by an exhaustive list of factors in the legislation or associated Code of Practice, but instead fall to be determined at an individual decision-maker’s discretion. In this way, someone subject to the Mental Health Act may never be certain about which aspects of his or her diagnosis, characteristics, or circumstances a decision-maker has considered of material relevance. Decision-makers enjoy a largely free hand to identify and attribute weight to any factors that they believe are relevant to a patient’s risk profile. The Mental Health Act’s juridical framework then provides the scope to legitimise any potential arbitrariness that may flow from the decision-making process. The ‘risk recipe’ model is limited in its application, particularly given the fact that a patient’s risk profile is continually evolving and changing; with the assessment process being part of a continuum. Also, the presence or the absence of a particular factor from a patient’s profile is not necessarily conclusive of risk in every case, as some risk factors can emerge and then recede depending on an individual’s current mental state, his or her circumstances and a wealth of ‘other’ factors and triggers. For example, decision-makers may know that a patient with a diagnosis of depression with suicidal ideation will not act on the impulse, as he has not done so in the past just as a patient expressing no suicidal intent at all may kill him or herself. Some, if not all, factors are beyond absolute quantification—what level of suicidal ideation, for example, might be ‘acceptable’; when does self-harming behaviour become ‘dangerous’? It follows that the ‘risk recipe’ model is limited in its scope and cannot facilitate the creation of an accurate predictive framework, but it does serve as a useful illustration of the decisionmaking process.

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The ‘risk recipe’ model was discussed with all the research participants in the study. The entire research sample, spanning the whole professional spectrum, accepted the model as a fair reflection of the ‘mechanics’ of decision-making; however, they were largely unwilling to be bound by a set of ‘risk’ factors which would evince risk in every case.

B. Too Many Cooks? Professional Responses to the ‘Risk Recipe’ Model The concerns raised by participants related not to the ‘risk recipe’ model itself, but to the potential limitations of the model; namely, would the use of a fixed list of relevant factors have the potential to fetter professional discretion or hamper the ability of decision-makers to acknowledge and respond to the inherent nuances within mental health care? On analysis, such concerns may be more theoretical in character than they first appear. Many interviewees (84%) did in fact acknowledge the presence of ‘factors’ that were fed into the decision-making process. First, risk was categorised as a product of ‘acute’, ‘chronic’, ‘static’, or ‘dynamic’ factors, followed secondly, by the recognition and pertinence of ‘social’ and ‘occupational’ factors within the process.47 Therefore, both recognised clinical and non-clinical factors were often deemed to be either contributory to the risk of harm to self or others or protective against such risk. Approximately 26% of the interviewees were of the view that such a broad range of relevant factors means that the concept of risk does not lend itself to a rigid taxonomy which reflects the necessity that decision-makers must be free to attribute appropriate weight to the issues affecting each individual patient. Interestingly, this approach demonstrates a clear rejection of ‘tick-box exercises’—risk assessments conducted using a universal pro forma—though this is precisely what is used to legitimise and corroborate compulsory detention decisions, thereby lending authority to institutional governance procedures.48 C. Relevant Considerations in Determining Risk The overwhelming view of the research sample was that ‘past behaviour’ is regarded as the ‘main predictor’ of a patient’s current risk profile. In addition, decision-makers must be aware of contextual factors, such as 47

48

For a broad discussion of these factors and their nature, E Elbogen and others, ‘Perceived Relevance of Factors for Violence Risk Assessment: A Survey of Clinicians’ (2002) 1(1) Intl J Forensic Mental Health 37–47. Predominately, tick-box style decision-making is used for blame avoidance purposes, see C Hood, The Blame Game: Spin, Bureaucracy, and SelfPreservation in Government (Princeton University Press, Oxford 2010) 11, 93– 97.

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the effects of illicit substances and alcohol, particularly in relation to how these affect the patient’s mental state. These factors, which feature in a patient’s psychiatric background, are then fed into the overall risk assessment process. Hence, risk is ‘organic’ in character, determined by reference to context, personality, and current diagnosis; then an assessment is undertaken to evaluate how these interact. Throughout the research sample, research participants, particularly the psychiatrists, emphasised the primacy of clinical history. Some decision-makers believed that past incidents are largely conclusive of current risk; others took the view that previous encounters with mental health services cannot prejudice an assessment of the patient’s current presentation. While this may simply be a matter of preference, the prejudicial impact of clinical history means that risk assessment is never wholly a value-neutral, fact-finding exercise. Many of the Approved Mental Health Professionals (AMHPs) interviewed concurred with this approach, acknowledging that the outcome of a risk assessment often depends on whether a patient is ‘known or not known’ by the mental health services—in other words, whether the individual has a psychiatric ‘history’. Interestingly, the data suggest that where a service user had a history of contact with mental health services, this factor would ensure that they were much more readily engaged by those services again; ‘history’ is, therefore, a key ‘ingredient’ of the ‘risk recipe’. Clearly, reliance on an individual’s psychiatric history is sensible as it represents a static variable within a sometimes quite turbulent patient profile. This approach is also reflective of institutionally approved systematic risk assessment tools. The HCR-20 is one of the most frequently engaged scale for psychiatric dangerousness prediction and half of the relevant considerations fall within the category of ‘static’ risk factors, such as the age at which violent tendencies first emerge. Despite the logic of relying on these types of factors, it opens up significant potential for discriminatory behaviour (whether intentional or unintentional) by the decision-maker, as these factors will be revealed each time a risk assessment process is undertaken. As Bartlett points out, ‘[ p]sychiatric control begins to appear to be a life sentence’.49 In addition to the patient’s psychiatric history, the decision-maker will then look into the current clinical factors that indicate a particular diagnosis within a broader non-clinical context. These dynamic risk factors can, and often do, evolve over time and so the process of risk assessment seeks to evaluate a ‘snapshot’ by virtue of the static and dynamic risk factors combined. By focussing on matters that go ‘beyond the clinical’,

49

Bartlett, Accepted set by nicola, para 12.20.

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risk is more than a clinical measure of the chance of adverse incidents.50 However, the suggestion that a patient’s socio-economic background could become a dominant feature in a Mental Health Act risk assessment was categorically refuted by the interviewees: ‘it’s not about socioeconomic status, it’s about support networks, it’s about alternatives to admission’. In spite of this, it was acknowledged that where an individual is living in a deprived area where there are limited support services, the risk of harm to self or others is deemed higher than for someone living in an affluent area with family and friends rallying round. Similarly, some research participants openly recognised that some ‘ingredients’ such as gender, age, race, and socio-economic background should not influence a risk assessment, but also that these factors inevitably feature in the process. It may be postulated whether the Act inadvertently promotes discriminatory tendencies among the decision-makers who apply it. Beyond identifying the nature of risk factors used by decision-makers in the study, it is clear that any presumption that within the mental health context there is a reliance on rigid, bright line rules51 can be rebutted. Gut instinct has a significant role to play and this stems largely from professional experience and the context of decisionmaking—whether decision-makers are working in an in-patient or community environment. Decision-makers certainly do identify relevant factors, as discussed above, but they then filter these by using ‘personal intuition’ in order to generate an outcome. The entire research sample acknowledged that you ‘can never be 100% sure’, and noted that the ‘stress in the job’ arises from ‘a level of unpredictability’ attendant on risk assessments. In many respects, decision-makers would argue that part of the skill of a clinician’s job is to compare cases with previous experience and to be guided by a kind of self-imposed system of ‘binding precedent’. While in theory this approach generates consistency, in practice it has the opposite effect: decision-makers will inevitably attribute different values to certain ingredients in accordance with their own subjective moral codes. This internal system of professional regulation was evident particularly within the assertive outreach professionals in the research sample. Assertive outreach decision-making is strongly underpinned by the benefit of close experience and contact with service users. The Mental Health Act 2007 and the accompanying Code of Practice may provide the skeleton of the decision-making process, but the integrity of the mental health service appears equally

50

51

See M Grann, K Sturidsson and U Hagga˚rd-Grann, ‘Methodological Development: Structured Outcome Assessment and Community Risk Monitoring (SORM)’ (2005) 28(4) Intl J Law Psychiatry 442 –456. CR Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, Oxford 1996).

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dependent on there being a rigorous, disciplined, and ethical selfregulation by decision-makers themselves. While there was general consensus among the research sample that the ‘risk recipe’ model reflected the mechanics of determining risk, few participants were able or willing to offer any examples of ingredients or combinations of ingredients that would culminate in a decision to detain a patient under the Mental Health Act. While participants endorsed the model, their evidence suggests that ‘anything goes’ when a decision-maker tries to establish whether the ‘risk recipe’ is complete. Decision-makers draw the ingredients from (i) clinical and/or (ii) social, economic, and environmental factors (non-clinical); while also placing them within a ‘static’/‘dynamic’ configuration. The suggestion that legislators should draft a catalogue of material risk factors from which they must operate was rejected on the basis that such an approach would generate an enormous compendium of factors that would still not cover every relevant issue. It is contended that the production of a comprehensive list of factors would be a hopeless task; as such a list could never completely reflect the myriad of factors which could emerge in any given case. However, the production of a list which does not seek to be all-inclusive, but guiding in character, could be achievable and create a framework, however fluid, which would capture an essence of certainty in an otherwise uncertain landscape.

D. Strategic Decision-making The absence of a definition of risk, or a clear delineation of the factors relevant to determining it, led to a hypothesis in the research study that the conception of risk facilitates a strategic opportunity for mental health decision-makers. Not only are decision-makers permitted to engage the compulsory powers in the Mental Health Act more readily when the conception’s understanding is so mutable but also, by attaching the ‘risk’ label, a decision-maker can more fully legitimise detention in cases where the evidence may be speculative. Hence, a strategic opportunity is provided to decision-makers to generate desired outcomes while circumventing legal or procedural obstacles. Two models of strategic decision-making flow from this: the ‘yardstick’ model, and, the ‘outcome-based’ model. In the ‘yardstick’ model, decision-makers use risk as a fact-finding mechanism to determine outcomes. Here, risk is a neutral variable reflecting pre-determined standards. The machinery of this decisionmaking process involves a patient’s diagnosis, characteristics, and circumstances being fed into the framework, which then calculates a risk profile by gauging the extent of the patient’s deviation from fixed norms. Decision-making under this model is analogous to using a ruler or ‘yardstick’ to determine the deviation. This approach underpins

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standard risk assessment tools, such as where decision-makers ‘score’ patients in a tick-box exercise. It also underpins the ‘risk recipe’ model, as discussed above. In the ‘outcome-based’ model, decision-makers employ risk as a wholly strategic device to generate desired outcomes. By using the term ‘risk’, decision-makers could legitimise a patient’s compulsory admission to hospital by the (un)intentional concealment of potentially weak or more speculative evidence. In this way, decision-makers can reason backwards by targeting an outcome first then finding the evidence to justify it. The ‘value’ a decision-maker attributes to risk factors therefore varies depending on the patient and the desired outcome of the process. Such techniques represent a practically expedient solution in a field that handles significant uncertainty. Decisions made in this way allow decision-makers to overcome procedural and evidential gaps to administer necessary treatment and care ultimately for the good of the patient and the wider community. Peay’s work informs the ‘outcome-based’ model as she found that discussions about the law among mental health practitioners were often ‘ill-informed or based on an intuitive understanding, which was not necessarily correct’.52 Peay discovered that decision-makers employed a ‘mix-and-match’ approach, picking any factual permutation to justify ‘any of . . . [a] range of conceivable outcomes’.53 She also observed decision-makers engage in ‘post-hoc rationalisations’, whereby they targeted their desired outcome before retrospectively cherry-picking a key factor or combination of factors to justify it.54 In this way, it was suggested that the law seldom plays a ‘determining role’ in mental health decisions.55 During the research study, Peay’s assertion was tested with the Mental Health Act 2007 particularly in mind. It was anticipated that risk would have become a more pronounced consideration in the mental health decision-making process because of the policy shift towards the risk agenda.

E. Application of the Models It was found in the study that the context in which the decision-making process took place and the professional base from which these decisions were generated were again relevant. It was seen that community-based professionals—both psychiatrists and AMHPs—viewed their role as being ‘facilitative’ and supportive in nature. For that reason, strategic decision-making was less likely to occur in the community than in the 52 53 54 55

Peay Peay Peay Peay

29. 40. 74. 67.

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acute in-patient context. What was conceded by several communitybased research participants was that decision-makers must take a broader view in the process, and that often other steps are commonly taken before using the Mental Health Act. This suggests that the approach found within the ‘outcome-based’ model may be particularly evident in a non-legal sense, before engagement with the compulsory framework. Interestingly, the data also indicate that there is a slight deviation in response to the ‘outcome-based’ model from psychiatrists and AMHPs. The psychiatrists, based in the community, were scathing of such an approach, yet several of the AMHPs within the sample acknowledged that they often need to ‘change . . . [their] mind[s]’. They also agreed that social workers tend to ‘err on the side of caution’, especially when handling individuals with no history of engagement with mental health services. It was explained that when managing these ‘unknowns’, the threshold for compulsory intervention is ‘slightly lower’. Indeed, decision-makers may subsequently regret detaining previously unknown patients, but sometimes the team ‘cannot afford to take the risk’. It was noted by one participant that: it would be better to ‘get it wrong and have somebody in hospital . . . for one night than be at an inquest . . . ’ For decision-makers based in hospitals, the ‘outcome-based’ model may also not be representative of the decision-making process. For those working at the ‘coalface’ of acute in-patient care, decision-makers may operate at a lower threshold of risk determination for admission into hospital. Once the mental health services engage a patient, and this is done more easily if the emergency detention56 or assessment provisions57 are activated under the legislation, the need for strategic decisions becomes less urgent and the process increasingly resembles the classic ‘yardstick’ approach. How the ‘outcome-based’ model sits with the legislation led to some noteworthy responses by the research sample. Several participants recognised that decision-makers may work backwards to justify a targeted outcome, but said that this sort of approach ‘is going to be really difficult to justify . . . [under] a section 3 (detention for treatment)’. Many of the acute care psychiatrists in the research sample believed that strategic decision-making occurs legitimately only under section 2 (detention for assessment) of the Mental Health Act. In making this point, the participants seemed unaware that, on a literal construction of its provisions, the Act does not ever permit such strategies.58 While section 2 permits decision-makers 56 57 58

Mental Health Act 1983, section 4 (emergency admission). Mental Health Act 1983, section 2 (admission for assessment). The Mental Health Act Code of Practice notes that under section 2, the full extent of the nature and degree of a patient’s condition may often be unclear.

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to recommend detention despite gaps in diagnostic knowledge, it still demands a level of risk, albeit at a lower threshold. Other decision-makers adamantly regarded the ‘outcome-based’ model and the theory of strategic decision-making as not operating on ‘the right [legal] premise’; yet, in practice, a patient’s risk profile is indissolubly linked to the compulsory admission criteria. Decision-makers must certify that a patient’s detention is necessary in the interests of his or her health or safety or for the protection of others. Without this risk to self or others, decision-makers cannot authorise a patient’s admission to hospital under the Mental Health Act.

IV. CONCLUSION At this early stage of the Mental Health Act 2007’s implementation, and its impact as an amendment Act on the application of the Mental Health Act 1983, any conclusions drawn of the impression of the legislation’s impact on the clinical landscape must be tentative. The main focus of the research study was risk and how the 2007 Act, as a legislative conduit for governmental policy, was perceived by decision-makers on the ground, at both an individual and an institutional level. Throughout the long and often controversial reform process, governmental policy emphasised the risk agenda; that risk to self or others should be the key trigger of compulsory admission to hospital and that the rights of the wider community to protection from harm should become the predetermining factor in risk assessment. From the empirical data, there is strong evidence to suggest that the risk agenda is now firmly embedded in the legislative framework and whether decision-makers like it or not, they must now deal in the currency of risk. Risk terminology now has a common usage within the clinical setting, yet defining this notion or giving it some clearer definition remains elusive. Participants of the research recognised that despite reference to and use of ‘risk’ within their daily activities, they did not have a working definition upon which they relied. Indeed, participants offered circular definitions or restated or paraphrased the statutory criteria for compulsory admission—what has been called in this paper, the ‘risk is risk’ paradox: decision-makers cannot define risk in the abstract, but they know it when they see it. This is unsurprising as section 2 allows a patient to be admitted to hospital for psychiatric assessment. Yet, to justify such admission there must still be evidence of some ‘nature or degree’ of mental illness to justify detention, but inevitably the full extent of that nature or degree is not known at the time of admission. As such, there may be a need to carry out an initial in-patient assessment in order to formulate a treatment plan, or to decide whether the patient will accept treatment on a voluntary basis following admission, see Code of Practice, para 4.26.

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When trying to grapple with actual factors, decision-makers used when undertaking a risk assessment, the ‘risk recipe’ model was developed. Participants were asked what ‘ingredients’ were sought to determine risk. This model was acknowledged as being a fair representation of the mechanics of risk assessment, as part of the whole decision-making process. However, none of the research samples was prepared to go as far as specifying factors as they all saw such a step has having the potential to fetter their professional discretion. While a patient’s clinical history is the most significant risk ingredient, the research team found generally that ‘anything goes’. Decision-makers can draw relevant ingredients from (i) clinical and/or (ii) non-clinical factors existing in a patient’s diagnosis, characteristics, and/or circumstances. Clearly, the extensive scope for professional judgement within the legislation presents a strategic opportunity to decision-makers. While, on the one hand, this can be very beneficial to the patient, particularly when considering how positive risk-taking can allow some individuals to remain in the community, despite being chronically unwell. However, it also represents a significant threat to patient rights. The ‘outcome-based’ model, as part of a strategic decision-making, and drawn from Peay’s work, contends that practitioners could use risk as a strategic device to identify an outcome, then work backwards to find the evidence to justify it. This contrasted with the ‘classic’ understanding of risk as a measure against which practitioners measure patients in order to determine an outcome—the ‘yardstick’ model. Apart from one or two participants who saw such a strategic approach as a necessary part of mental health practice, the overwhelming view held that the ‘outcome-based’ model constitutes the improper use of the Mental Health Act. It has been contended throughout that an ill-defined, open-ended concept of risk is not conducive to certainty in mental health law. It is argued that the Mental Health Act 2007 exacerbates this problem by introducing a broad definition of mental disorder59 and the appropriate treatment test without any supporting guidance in terms of how the test should be applied.60 By broadening the filters for compulsion and decision-makers’ discretions in this way, the potential scope for applying the Mental Health Act is significantly widened. None of the interviewees indicated any concerns about this, and instead welcomed the simplified provisions. Also, many were indifferent to the 2007 Act and 59 60

Code of Practice, para 3.3. However, chapter 6, Code of Practice, indicates that the threshold for risk should be set at a fairly low level; however, no detailed guidance is provided which demonstrates just how this should apply in practice.

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its implications, taking the view that its provisions simply aligned mental health law with pre-existing practices. Perhaps, most noteworthy is that participants expressed innate trust in their expertise and experience—their professional judgement, to act as a defence against arbitrary decisions. Whether this should offer comfort to individuals who are subjected to the compulsory provisions of the mental health legislation is questionable as the overwhelming response to the 2007 Act was summed up by one participant: I don’t think it’s been the, the big transformation we were expecting, and I think in practice it is still more or less the same, it appears more or less the same to me, apart from the fact that we have these CTOs. It’s not what was billed . . . It looked like there [was] a certain degree of cop-out occurring in the end and actually when we think that, you know, the previous political administration promised that prior to the ’97 election that they would change the law, you know, it took . . . many years for not very much really. The fact that mental health decision-makers do not seem overly aware of or concerned about the changes introduced by the 2007 Act or the opportunities there are for significantly extending the compulsory powers to a much wider group of individuals should raise some disquiet. While the risk agenda remains a fixed concern within the decisionmaking process (yet risk itself remains a wholly fluid concept), this opens up the prospect for political pressure to steer the decision-making process further towards the public protection agenda. In light of the Mental Health Act’s broad criteria and its wide reliance on professional judgment, it is difficult to resist the conclusion that patients’ rights will increasingly become secondary to public safety in the post-2007 Act era.

Medical Law Review, 19, Autumn 2011, pp. 606–635 doi:10.1093/medlaw/fwr030

MENTAL HEALTH LAW AND THE EU: THE NEXT NEW REGULATORY FRONTIER? J. V. McHALE∗ Law School, University of Birmingham [email protected]

ABSTRACT Over the last decade the EU’s engagement with health law and policy has rapidly increased and there is now a growing body of literature highlighting this evolution and the impact of legal and regulatory structures in this area. In contrast the specific impact of EU law and policy in relation to the area of mental health remains the subject of comparatively little engagement. The aim of this paper is to examine whether mental health law and policy will become a major site for EU policy and law in the future. It examines the development of EU policy in this area. It sets this in the context of related legal developments such as the Charter of Fundamental Rights and the new EU Patients Rights Directives. It suggests that while it might be at present premature to envisage that a single body of EU mental health law itself may be unlikely that nonetheless the EU presents what is a potentially very influential site for regulation, law and policy in this area in the years to come. Keywords: Mental Health Law and Policy, EU, Fundamental Rights, Patient Rights.

I. INTRODUCTION Mental disability is something which is no respecter of national borders, nor of gender, race, or social class. WHO Europe has noted that mental ill health represents almost 20% of ill health in the WHO European region.1 Over the last thirty years, there has been a notably enhanced ∗

1

The author would like to thank Tamara Hervey and Marie Fox who read earlier drafts of this article and the anonymous reviewers. She would also like to thank Nicola-Glover Thomas, the editor of this special edition, for all her help. All opinions expressed and any errors which remain are of course those of the author alone. See further ,http://www.euro.who.int/en/what-we-do/health-topics/ noncommunicable-diseases/mental-health. and WHO Mental Health:

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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global engagement with human rights and mental health2 and the recognition of the need for responsive care and treatment of those with mental illness across the international community. Mental health is an issue which is of growing concern in the context of an ageing society. Yet despite heightened awareness, it is still the case that those suffering from mental illness may be subject to discriminatory behaviour and indeed may be stigmatised as a consequence.3 Across Europe, attitudes and approaches to those with mental illness are the subject of considerable diversity. There are a spectrum of approaches to care options from institutionalisation to community care and patient choice. There is equal diversity in the range and types of practitioners involved.4 Compared with the care and treatment of those with other forms of ill health, the resources devoted to the care and treatment with those with mental illness are notably small. For example, a WHO Ministerial Conference report in 2006 noted that on average in the European region only some 5.8% of total health expenditure was in the area of mental health and the vast proportion of such expenditure was in relation to service provision rather than in relation to promotion and prevention.5 Moreover, institutional attitudes to the treatment of those with mental illness vary considerably across the member states of the EU. The health services of some member states show greater responsiveness to mental health needs and patient rights than those of others. Particular concerns have been expressed about mental health abuses in certain accession states. Some of the former Eastern Bloc countries such as Bulgaria and Romania came under very heavy criticism in the 2000s for the state of the mental health care which was being provided. Social care homes in Bulgaria, for example, were condemned for their squalid conditions and their restrictive discharge policies.6 In 2004, Amnesty International Romania produced a Memorandum to the Romanian Government on In-Patient Psychiatric Treatment highlighting abuses of those with mental illness and violations of human

2

3

4 5 6

facing the challenges, building solutions: report from the WHO European Ministerial Conference (WHO, Geneva 2006). See further, P Bartlett, O Lewis and O Thorold, Mental Disability and International Human Rights (Martinus Nijhoff 2007) and in L Gable and L Gostin, ‘Human Rights of Persons with Mental Disabilities: The European Convention of Human Rights’ in L Gostin, P Bartlett, P Fennell. J McHale and R McKay (eds) Principles of Mental Health Law (OUP, Oxford 2010). See further, J Read and S Baker, A Survey of the Stigma, Taboos and Discrimination Suffered by People with Mental Health Problems (MIND, London 2006); G Thornicroft, Stunned: Discrimination Against People with Mental Illness (OUP, Oxford 2006). See further, WHO Europe Policies and Practices for Mental Health in EuropeMeeting the Challenges (WHO Europe, Geneva 2008). WHO, above, n 1 at 5. Ibid.

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rights.7 While new legislation was introduced in Romania concerning children’s rights in 2005, a highly critical report was published by the advocacy group Mental Disability Rights International in 2006 highlighting continuing abuses in the care of children with disabilities. This included detention of children in adult institutions which the group argued was in clear contravention of the UN Declaration on the Rights of the Child and the European Convention of Human Rights (ECHR).8 This report commented that there is no legal process and oversight for children and adults with mental illness detained in such institutions and that the conditions constituted a violation of Article 3 of the ECHR. The WHO has highlighted some of the main differences in mental health care and treatment across Europe.9 As it comments: There is a strong correlation between trends in mental health expenditure, trends in the development of community mental health services and the involvement of users and carers.10 The engagement of NGOs and organisations such as the WHO in raising awareness and lobbying for change in this area may prove influential. However, given the differences in the approaches to care and treatment and the need not simply to change treatment structures but also to change fundamental attitudes, this is undoubtedly a challenging task which will take some time.11 Here the focus is upon mental health and the approaches of law and policy in this area across the European Union (EU). The engagement of EU law and policy with mental health is a huge area. It ranges from ‘conventional’ mental health law and policy relating to issues such as detention and compulsory treatment through to social care provision and employment law. In this paper, we focus upon the impact of EU law and policy on more traditional mental health law and policy, detention, and the patient’s rights to care and treatment. In considering the potential impact of EU law and policy upon this issue, it is necessary to set this in the context first of the EU’s broader engagement with ‘health’ and 7 8

Amnesty International AL Index: EUR 39/003/2004. L Ahern and Mental Disability Rights International, ‘Hidden Suffering Romania’s Segregation and Abuse of Infants and Children with Disabilities’ (2006) ,http://www.mdri.org/mdri-reports-publications.html.. A report which was equally condemnatory of the conditions of treatment of adults and children with mental illness in Serbia was published in 2007. Mental Disability Rights International, ‘Torment Not Treatment: Serbias Segregation and Abuse of Children and Adults with Disabilities’ (2007) ,http://www.disabilityrightsintl.org/ wordpress/wp-content/uploads/Serbia-rep-english.pdf.. 9 Above, n 5 at 32–3. 10 Ibid 171. 11 K Krosnar, ‘Mentally Ill Patients in Central Europe being kept in Padlocked Caged Cells’ (2003) 27 BMJ 249.

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‘health law’. Over the past fifteen years, the EU has become increasingly engaged with issues concerning health and health care.12 Following the EU Commission Health White Paper in 2007, health is something which has now been ‘mainstreamed’ into EU policy.13 But while EU engagement with health issues has been particularly notable in areas as diverse as blood and tissue safety14 to the regulation of clinical research,15 the area of mental health and the EU is something which has in the past been the subject of what appears to have been far less direct engagement, both at the EU level and in the legal academic community.16 However, several recent developments in a range of related areas suggest that the mental health policy and law at the EU level is likely to develop further with the potential for considerable impact at the member state level in the future. It is important to emphasise that the EU’s involvement in relation to mental health extends much more broadly than could be encompassed within the scope of this article. This is unsurprising given the multiplicity of factors which can impact upon health promotion and protection in relation to mental illness. Given the constraints of space within the current article, further discussion of areas such as employment law is necessarily precluded.17 This paper sets out to examine first how the EU has come to be involved in the area of mental health law and policy. It explores the legal basis for the EU’s engagement in relation to mental health in general as a question of public health. It examines the development of current EU mental health policy both before and after the publication of the Commission Green Paper in 2005.18 Secondly, the paper explores two recent major developments at EU level in the area of health law which are likely to have a considerable impact upon mental health

12 13 14 15 16

17

18

See further, T Hervey and J McHale, Health Law and the European Union (CUP, Cambridge 2004). EU Health, ‘Together for Health: A Strategic Approach for the EU 2008–13’ (White Paper) Com (2007) 630. See eg Blood Safety Directive, Directive 2002/98/EC; Tissue Directive (2004), Directive 2004/23/EC. Directive 2001/20/EC on the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use. For an excellent examination of the emerging EU policy several years ago, see B Kelly, ‘The Emerging Mental Health Strategy of the European Union: A Multi-level Work in Progress’ (2008) 85 Health Policy 60. See further, eg, P Watson, EU Social and Employment Law: Policy and Practice in an Enlarged Europe (OUP, Oxford 2009); Fundamental Rights Agency, ECHR, Council of Europe Handbook on European NonDiscrimination Law (FRA, Strasbourg 2011). Green Paper, ‘Promoting the Mental Health of the Population: Towards a Mental Health Strategy for the EU’ (2005) ,http://ec.europa.eu/health/ archive/ph_determinants/life_style/mental/green_paper/mental_gp_en.pdf..

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law and policy. These are first the impact of the EU Charter of Fundamental Rights post the Treaty of Lisbon and secondly, the new EU Patients’ Rights Directive. Thirdly, the paper concludes by examining what other challenges and developments may impact upon law and policy in this area and whether indeed there may be room for a defined body of ‘European Union mental health law’ in the future.

II. THE EVOLUTION OF EU LAW AND POLICY RELATING TO MENTAL HEALTH The provision of mental health care and treatment in Europe has been scrutinised for many years through the involvement of the Council of Europe before more defined EU policy in the area began to develop. The European Convention of Human Rights has played an important role in changing approaches to the care and treatment of those with mental disabilities. In a series of cases, the ECHR provided the basis for scrutinising a range of matters such as procedural issues around admission and detention in mental institutions19 and the conditions in the institution where individuals are detained through rights to care and treatment.20 While litigation at the ECHR level has provided a catalyst for change in itself, such change is inevitably incremental and dependent upon ad hoc case law development. Much is still left to member states to formulate and regulate their mental health law and policy. However, it should be noted that the Council of Europe has highlighted the need for safeguards in this area and in 2004 published recommendation REF (2004) 10 concerning the rights and dignity of persons with mental disorders.21 The EU’s own engagement with mental health has become increasingly evident since the 1990s.22 This can be seen initially in the 19

20

21 22

Eg, X v UK judgement of 27th November 1981, 46 Eur Ct HR (ser A); Winterwerp v the Netherlands 33 Eur Ct HR (ser A); Rakevich v Russia [2003] ECHR 5897/300; Ashingdane v UK (1985) 7 EHRR 528; DN v Switzerland (2003) 37 EHRR 21; HL v UK [2005] 40 EHRR 32. See Herczegfalvy v Austria judgement of 24 September 1992, (1993) 15 EHRR 437; Litwa v Poland 4 April 2000 [2000] ECHR 141; Keenan v UK (2001) 33 EHRR 38. Adopted by the Committee of Ministers on 22 September 2004 at the 896th meeting of the Ministers Deputies. Council Resolution of 18 November 1999 on the promotion of mental health, OJ 2000 C 86/1; and see Conference organised by the Presidency on ‘Mental Illness and Stigma in Europe: facing up to the challenges of social inclusion and equity’, ,http://www.eu2003.gr/en/articles/2003/3/24/ 2338. and the Council’s adoption of ‘Conclusions on combating stigma and discrimination in relation to mental health’ in 2512th Council Meeting Employment, Social Policy, Health and Consumer Affairs, Luxembourg, 2 and 3 June 2003, 9688/1/03 REV 1 (Presse 152), 12–4.

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context of concerns regarding the mental health of children and adolescents,23 and regarding suicide rates. At a joint meeting of WHO and European Commission in April 1999 to consider mental health promotion and mental health care, nine key principles were identified. These were personal autonomy, sustainability, effectiveness, accessibility, comprehensiveness, equity, accountability, coordination, and efficiency.24 The meeting also highlighted what it saw as being ten important goals and strategies in this area: first, that of raising visibility and recognition of the value of mental health; secondly, increasing the sharing of knowledge and experience in this area; thirdly, the development of ‘innovative and comprehensive’ policies for mental health following stakeholder consultation; fourthly, the need to define priorities for groups, conditions, and interventions in mental health promotion; the fifth element was the appropriate development of mental health services both in primary care and, in addition, more specialised care, with the aim that these will be concerned with both quality and ‘new, non-stigmatizing approaches’; sixthly, it raised the need to address issues of inequality in care in this area with particular attention being paid to addressing the needs of those who were marginalised and deprived in society. It also addressed issues such as the need for promotion and care to be rooted in evidence-based guidelines and the need for research and development to be emphasised; and finally, and critically, it emphasised the need for development of mental health legislation based on human rights. Subsequently, mental health was considered in October 1999 at the European Conference on Promotion of Mental Health and Social Inclusion organised by the Finnish Presidency of the European Union in Tampere, Finland. This led to further conferences and symposia.25 In the Council Resolution of 18th November 1999 on the promotion of mental health, the Council called on the Commission to include mental health in any future programme on public health.26 Concerns regarding the impact of stress and depression across all age groups were highlighted by Council conclusions 23 24

25

26

R Watson, ‘EU Makes Mental Illness a Top Priority’ (1999) 319 BMJ 1389. R Watson, ‘EU Aims to Reduce Suicides’ (2000) 321 BMJ 825. ‘Balancing mental health promotion and mental health care: A joint WHO/European Commission meeting’ Brussels 24–27th April 1999. Broschure MNH/ NAM/99.2, Brussels, WHO 1999. Future mental health challenges in Europe: strengthening collaboration between WHO and EU, final report ,http://europa.eu.int/comm/health/ ph_determinats/life_style/mental/ev_2002211_en.htm.; M Knapp, ‘Mental Health: Familiar Challenges; Unprecedented Opportunities’ (2001–2) 8(1) eurohealth. OJ C86 of 24 March 2000.

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published in 2001.27 The EU recognised the need for stronger cooperation with the WHO in addressing mental health challenges.28 A closed conference examining mental illness and stigma was held in Athens under the auspices of the Greek Presidency in 2003.29 The conference formed the backdrop to the mental health green paper. In 2005, the Health and Consumer Protection Directorate General of the European Commission published the Green Paper ‘Improving the mental health of the population: Towards a strategy on mental health for the European Union.’30 It began by stating that there was agreement that ‘a first priority is to provide effective and high quality mental health care and treatment services accessible to those with mental ill health’.31 The Green Paper emphasised that this was only one part of a mental health strategy. It suggested that there needed to be a comprehensive approach dealing with health promotion and prevention and to address issues of stigma and of discrimination which arise in the context of mental health. EU Competency in mental health was initially derived from Article 152 and is now rooted, as we shall see below, in Article 168 of the Treaty on the Functioning of the European Union. The Green Paper stated that: mental health is an issue for the European Community through: The contribution that good mental health of the population can make to some of the EU’s strategic policy objectives; The role of the Community to encourage and support co-operation between Member States and to address inequalities between them and The obligation of the Community to contribute to a high level of health protection through all its policies and activities.32 The legal basis for action in this area giving the EU competency to act came from the EU Public Health Programme 2003– 08. As the Green Paper has illustrated, other initiatives target a range of other issues pertinent to mental health. The Discrimination Directive 2000/78/EC which prohibited disability discrimination in employment was one 27 28 29 30 31 32

Council Conclusions 2002/C 6/01 on combating stress and depression-related problems. OJC 006, 09 January 2002. EU/WHO, ‘Future Mental Health Challenges in Europe: Strengthening Co-operation between EU and WHO’ (December 2002). D McDaid, ‘Mental Illness and stigma in Europe’ (2003) 9(1) eurohealth 5. See, n 19, above. Ibid at 5. Ibid.

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notable example.33 In 2005, in their Communication to the Council on non-discrimination and equal opportunities, the Commission wanted to mainstream non-discrimination through all policies.34 The EU Framework Programmes for research have also supported research in the area of mental health through funding initiatives. As noted earlier in this paper, some of the greatest challenges facing EU policy in relation to mental health related to the differences between individual states on a range of matters from suicide rates through to considerable disparities in the resources which are devoted to mental health across member states.35 The Green Paper went on to state that: Given the diversity between Member States it is not possible to draw simple conclusions or to propose uniform solutions. However there is scope for exchange and co-operation between Member States and the opportunity to learn from each other.36 The Green Paper highlighted the need for an EU mental health strategy building upon the work of the WHO in this area. It proposed that such a strategy could: (1) Promote the mental health of all; (2) Address mental ill health through preventive action; (3) Improve the quality of life of people with mental ill health or disability through social inclusion and the protection of their rights and dignity; (4) Develop a mental health information, research, and knowledge system for the EU.37 The Green Paper saw health promotion in this area as operating in a range of situations involving children, the work place, older persons and vulnerable persons in society. In relation to prevention, the document highlighted the EU’s existing work in relation to, for example, drugs, alcohol, and suicide.38 It noted how de-institutionalisation could lead to a change in paradigm and could contribute towards a reduction in the stigma often suffered by those with mental illness.39 The Green Paper also engaged with questions of fundamental human rights. 33 34

35 36 37 38 39

Council Directive 2000/78/EC of the 27 November 2000 establishing a general framework for equal treatment in employment and occupation. ‘Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions—non-discrimination and equal opportunities for all—a framework strategy’ COM/2005/0224. n 19, above 6. Ibid 7. Ibid 8. Ibid 10. Ibid 11.

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It recognised the need for interface with the Council of Europe noting that it was due to initiate work in 2006 with the aim of developing a ‘European reference tool for ethics and human rights in mental health’.40 It noted the considerable variation of practices in relation to compulsory admission across EU member states.41 This is one major challenge facing any development of EU mental health policy and indeed ultimately mental health law. The Green Paper made two suggestions for possible initiatives in relation to human rights and mental health at EU level. First, that this could ‘identify best practice for promoting the social inclusion and protecting the rights of people with mental ill health and disability’.42 Secondly, that ‘people with mental health and disability and the situation in psychiatric institutions could be included in the activities of the Fundamental Rights Agency of the EU’43 (the role of this Agency will be considered further below). Overall, the Green Paper suggested a Dialogue with member states on mental health to facilitate exchange of information and co-operation.44 It also suggested that such a Dialogue could ascertain whether to take forward Council recommendations on promotion of mental health and reduction of depression.45 The Green Paper also recommended the creation of an EU-Platform on Mental Health. The aim of such a platform was the promotion of cross-sectoral co-operation and consensus on mental health. It also suggested that there was room for the development of an interface between policy and research on mental health.46 The Green Paper clearly recognised the considerable challenge to address policy across this area where so many diverse variables can impact upon mental health. The Green Paper can be seen as aspirational, being based upon recognition that rights need to be respected and also the need to facilitate health promotion. One of the difficulties in relation to implementing such policy across member states is of course how to rationalise its aspirational nature with the harsh realities of disparity of approaches to attitudes, care, and treatment practices and funding across member states and this issue is returned to below. In the years which have followed the Green Paper, support for evolving mental health policy has been reinforced in subsequent documents. Following the Green Paper, the European Parliament published a ‘Resolution on improving the mental health of the population. Towards a 40 41 42 43 44 45 46

Ibid. Ibid 12. Ibid 12. Ibid 12. Ibid 13. Ibid. Ibid.

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strategy on mental health for the European Union’ in 2006.47 Again there was emphasis upon health promotion, non-discrimination, and safeguarding individual rights. It called for greater priority for mental health promotion in EU policies. It also argued for greater engagement with the dimension of gender in developing mental health policies. Greater partnership was needed in proposals in the area with service users and their families. The recommendation recognised the need for integration of mental health in the workplace.48 It stressed the need for respect for the dignity of the individual in care and in treatment. It also noted that any restriction of personal freedom should be avoided due to concerns of abuse of power and that this might constitute infringements of human rights.49 It also proposed that there should be a Directive on mental health in Europe and a defence of individual rights. The proposal for a Directive is interesting as it would at very least highlight the importance of the issue, but this has not been taken forward. In 2008, an EU High Level Conference ‘Together for Mental Health and Wellbeing’ held in Brussels produced the ‘European Pact for Mental Health and Wellbeing’.50 It focused upon the need for action in what it saw were five ‘priority areas’. The first area which was identified was that of the prevention of depression and suicide, including restricting access to suicide methods and raising mental awareness in the public as a whole. Secondly, mental health in youth and education, with the aim of providing programmes to promote parenting skills, prevention of bullying, and violence against young people and, thirdly, mental health in workplace settings. Here the pact recommended that there was a need to improve cultures at work, implementing programmes to address behaviour which might have an adverse impact upon mental wellbeing at work. The fourth priority area which was identified was that of the mental health of older people. Recognising the growing ageing population across the EU, the document was concerned to promote active participation of older persons in the life of the community and develop flexible retirement schemes. The final priority area which was identified was that of combating stigma and social exclusion.51 This stressed the need for both stakeholders and policy makers to take action to combat stigma and social exclusion. The Pact invited the Commission and member states: 47

48 49 50 51

‘European Parliament Resolution on Improving the Mental Health of the Population. Towards a Strategy on Mental Health for the European Union’ COM 2006/2058. Ibid, para 25. Ibid, para 33. ‘European Pact for Mental Health and Wellbeing’ (Brussels 12– 13 June 2008) ,http://ec.europa.eu/health/mental_health/docs/mhpact_en.pdf.. Ibid 3.

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to establish a mechanism for the exchange of information; † to work together to identify good practices and success factors in policy and stakeholder action for addressing the priority themes of the Pact and to develop appropriate recommendations and action plans; † to communicate the results of such work through a series of conferences on the Pact’s priority themes over the coming years.52 These are known as ‘soft-law’ measures. They will encourage member states to work together but do not mandate this. The importance of mental health in relation to EU policy and law is now, however, further highlighted and strengthened through reference being made to mental health at Treaty level following the ratification of the Treaty of Lisbon. Article 168 TFEU now provides that: 1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health. The Union shall complement the Member States’ action in reducing drugs-related health damage, including information and prevention. Article 168 is not a harmonisation measure, as was the case in relation to its predecessors Articles 129 and Article 152. Indeed, this is expressly excluded by the Article itself.53 Nonetheless, the aim of the Article is to facilitate involvement in this area. The consequence of this is that there is scope to take measures which, by their very action, may in effect ultimately lead to a degree of convergence between member states through promotion and facilitating exchange of information. Gradually, through sharing ‘good practice’, this may lead to an alignment of approach between clinicians and policy makers.

52 53

Ibid 7. Art 168(5) TFEU.

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In June 2011, the Council of the European Union presented its conclusions on the European Pact for Mental Health and Wellbeing and its proposals for future action.54 As with earlier statements, member states are encouraged to: Make mental health and well-being a priority of their health policies and to develop strategies and/or action plans on mental health including depression and suicide prevention.55 Prevention and promotion are to be part of these strategies. Other aspects of the Commission’s Communication target the need to facilitate improvement of the ‘infrastructure’ which supports well being and also improve access to this. The document emphasises the desirability of community-based treatment measures. In addition, as before, there is stress on implementing measures against stigmatisation and nondiscrimination. Member states are also encouraged to utilise financial support available through Structural Funds in this area such as the European Social Fund which is a fund that distributes monies to member states supporting employment and facilitates economic and social cohesion.56 It also stresses the need for more engagement by health and social sectors ‘with social partners in the field of mental health and well-being at the workplace, to support and complement employer-led programmes where appropriate’.57 Again, as before, the needs of children and young people are highlighted. In addition, it also proposes the establishment of a programme of Joint Action on Mental Health and Well-being under the EU Public Health Programme 2008 – 2013 with the aim of providing a forum for the exchange of views, policy approaches, and practice. It is concerned that health and social care systems address mental disorders. Depression is, again, highlighted as a matter which should be of concern to member states. Importance is attached to partnership between health and other sectors such as employment, social provision, and education. Again, the need for research and evidence and data sets on mental illness is stressed.58 What is clear from the above is the steadily evolving and increasing role of the EU in this area. Nonetheless while these measures provide the backdrop, they are by their very nature disparate and diverse. They 54

55 56 57 58

Council of the European Union, Conclusions on the European Pact for Mental Health and Wellbeing and proposals for future action. 3095 Employment, Social Policy Health and Consumer Affairs Council Meeting, Luxembourg, 6th June 2011. Ibid, 4. The legal basis for the Fund is Reg EC No 1081/2006 of 5th July 2006. n 55, above. Ibid, p 4.

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are also to date operational as ‘soft-law’. Bringing such diverse measures together will be a notable challenge and indeed, until recently, would have been considered unrealistic to attempt. However, it is suggested that greater alignment of mental health law and policy is perhaps more likely today given the trends in relation to health law and policy across the EU in general. In the past in relation to EU health law and policy, diverse legal basis and policy triggered by political concerns have led to fragmented health law and policy. This has been steadily changing and what is striking about the EU and health today is the notion of mainstreaming health through all policy as highlighted in the EU Health White Paper.59 This means that all policies have to be considered in relation to their health implications. Of course, there may be some scepticism here. Mainstreaming may raise awareness, but whether simply requiring that issues are considered then subsequently equates with the issues being effectively addressed is dependant upon the importance being given to that particular health variable and, indeed, the proportionality of the response. Work such as that of the WHO highlights the multiplicity of issues involved. But the real difficulty which remains is translating such policies into actually improving attitudes and practices concerning the care and treatment of those with mental illness. Those with mental illness still have comparatively low visibility and power in relation to questions of resource allocation in member states. Mental health care is still a ‘Cinderella service’ in comparison with many other areas of health care delivery. The EU initiatives, the research, and the conferences may have helped to raise awareness, but there is the risk that many of these initiatives simply work at a rhetorical level. There is still much to be done, not least to deal with the disparity in approaches which remain across the member states of an enlarged EU. Two more recent developments in EU health law may provide a particular trigger for member states to reform their mental health laws and lead perhaps to greater substantive alignment in legislative approaches to the delivery of care and treatment of those with mental illness. These are: first, the increasing engagement of the EU with fundamental rights and secondly, the new EU Patients Rights Directive. We are concerned less with the latter in this paper, because it impacts more on standards than on ‘rights’.

59

EU Health White Paper Together for Health: A Strategic Approach for the EU 2008-2013 COM (2007) 630.

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III. THE EU, MENTAL HEALTH, AND HUMAN RIGHTS The discourse of human rights has pervaded the regulation of health care across jurisdictions,60 as highlighted following the Nuremberg Trials by the development of the Universal Declaration of Human Rights.61 Human rights are frequently cast in terms of ‘negative’ and ‘positive’ rights. Negative rights are typically contained in traditional so-called civil and political statements of human rights, including the right to life and rights to privacy of home and family life. Such rights claims are less likely to involve claims regarding expenditure of public resources. Positive rights are typically contained in more modern, frequently termed ‘socioeconomic’, human rights statements. Such rights include rights to health. These types of rights are more likely to be aligned with obligations to provide such rights and consequently have resource implications. Protecting human rights in the context of mental health is something which, as WHO Europe has identified, is a major challenge. The WHO Mental Health Declaration for Europe stated that member states should ‘end inhumane and degrading treatment and care and enact human rights and mental health legislation to comply with the standards of the United Nations Conventions and international legislation’.62 What is notable is that while the majority of countries surveyed by the WHO in their 2008 Report did have bodies which were charged with reviewing the human rights protection of mental health service users, the manner in which they undertook their roles varied considerably63 and some countries said that in fact inspections were very limited.64 Much of the work of such bodies is inevitably dependent upon effective resourcing. Further, civil and political rights are particularly important in the context of patients with mental illness who are detained, such as access to legal representation. The availability of such access at present in practice is something else which also varies widely across European countries. The WHO has highlighted this as being a matter for 60

61

62 63 64

See, for example, J Mann and others (eds), Health and Human Rights: A Reader (Routledge, London 1999); E Wicks, Human Rights and Health Care (Hart, Oxford 2006); A Hendriks, ‘The Right to Health’ (1998) 5 EJHL 389; J McHale, ‘Enforcing health care rights in the English courts’ in R Burchill, D Harris and A Owers (eds), Economic, Social and Cultural Rights: Their Implementation in UK Law (University of Nottingham Human Rights Centre, Nottingham 1999); B Tobes, The Right to Health as a Human Right in International Law (Intersentia Publishers 1999). See further, J McHale, ‘Fundamental Rights and Health Care’ in E Mossialos, TK Hervey, G Permanand and R Baeten (eds), Health Systems Governance in the EU (CUP, Cambridge 2010). n 3, above at 173. Ibid. Ibid at 169.

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considerable concern given the vulnerability of detained persons with mental illness.65 A number of international human rights documents refer to rights applicable in the context of health law and health policy. A right to health was first explicitly stated in the Preamble of the World Health Organization (WHO) Constitution in 1946. Some United Nations human rights documents directly address health, such as the right to a standard of living adequate for health and well-being,66 or the need for recognition of the highest attainable standard of physical and mental health.67 International rights declarations refer to health in the work-place.68 Other provisions contained in international statements of human rights, while not referring directly to health, may be seen as relevant to claims for rights to particular treatments.69 In 1991, the United Nations published its Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, whose provisions include the entitlement to receive the best quality of care available.70 In June 2006, the Optional Protocol to the UN Torture Convention (OPCAT) came into force.71 The Optional Protocol, while not providing new rights, requires state parties to establish national preventative mechanisms. The UN has also established a Subcommittee on the Prevention of Torture (SPT) under Article 2 of OPCAT. Under Article 5 of OPCAT, the SPT can also issue recommendations to States which are parties to the Convention and work with the national preventative mechanisms. The Convention and its related bodies may prove an important check on the provision of care in relation to detained persons in member states in the future. Across Europe, an important focus for the engagement with and development of human rights law has been the European Convention on Human Rights and, as we shall see below, the interface with ECR jurisprudence in the context of mental health may become increasingly 65 66 67

68 69

70

71

Ibid at 185. Art 25, Universal Declaration of Human Rights, adopted 10 December 1948 under General Assembly Resoultion 217 A (III), UN Doc A/810, 71. Art 12(1), International Covenant on Economic, Social and Cultural Rights, New York, 19 December 1966, in force 3 January 1976, 993 UNTS 3; 6 ILM 360. Art 6, Universal Declaration of Human Rights. See Art 3, Universal Declaration of Human Rights, and Art 1, International Covenant on Civil and Political Rights, New York, 19 December 1966, in force 23 March 1976, 999 UNTS 171; 6 ILM 368. United Nations, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, United Nations Secretariat Centre for Human Rights (UN, New York 2001). GA Res 57/199 on the Optional Protocol to the Convention Against Torture and other Cruel Inhuman and Degrading Treatment or Punishment UN Doc a/res/57/199.

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influential post the Treaty of Lisbon. The Council of Europe has also produced a Convention on Human Rights and Biomedicine.72 In many respects, the rights outlined here can be seen as echoing the approach taken by the decisions of the European Court of Human Rights. Article 1 of the Biomedicine Convention states that its purpose and object is to safeguard the dignity and identity of all human beings and respect their integrity and other fundamental rights and freedoms. Various provisions of the Convention are applicable in relation to mental health care and treatment, for example, rights to consent to treatment;73 private life and the right to information;74 the prohibition of discrimination;75 and rights in the context of research.76 Many member states of the Council of Europe have not ratified and are not signatories to the Convention.77 Nonetheless, the document remains influential in structuring health policy across some member states of the Council of Europe and in turn has been cited in other areas in relation to EU health policy.78 Moreover, as we shall see, provisions of this document are also reflected in that of the Charter of Fundamental Rights discussed below. Over the past two decades, the EU has been increasingly engaging with fundamental rights principles, finally culminating in the production of the Charter of Fundamental Rights in 2000.79 The Charter of Fundamental Rights initially had ‘soft law’ status and was thus nonbinding. However, its position has changed following the Lisbon Treaty. Article 6(1) of the Treaty of the European Union now provides that the Charter will have the same ‘legal value’ as the Treaties. While this means that the provisions of the Charter will become ‘general

72

73 74 75 76 77

78 79

Council of Europe, ‘Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to Biology and Medicine: Convention on Human Rights and Biomedicine’ (Oviedo, 4 April 1997) in force 1 December 1999, ETS No 164, ,http://conventions.coe.int/treaty/en/ treaties/html/164.htm.. See P Zilgavis, ‘The European Convention on Biomedicine: Its Past, Present and Future’, in A Garwood-Gowers, J Tingle and T Lewis (eds.), Healthcare Law: The Impact of the Human Rights Act 1998 (Cavendish, London 2001). Arts 5–9, Biomedicine Convention. Art 12, Biomedicine Convention. Arts 11–3, Biomedicine Convention. Arts 15–8, Biomedicine Convention. The following states have not signed this Convention: Austria, Belgium, France, Germany, Ireland, Luxembourg, Malta, the Netherlands, Poland, Sweden, and the UK. Here, for example, the European Group of Experts on Science and New Technology has engaged with the Convention in relation to many of its Opinions. T Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Hart Publishing Oxford 2003). S Peers and A Ward, The EU Charter of Fundamental Rights; Politics, Law and Policy (Hart Publishing, Oxford 2004).

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principles’ of EU law, it does not in itself expand EU competence. The consequence of this is that while individual EU citizens will be able to challenge decisions made by EU institutions or by member states in relation to an issue within EU competence, where an issue arises outside the scope of EU law, then a human rights challenge would have to be brought before national courts or, if possible, the European Court of Human Rights. In the past, the EU had increasingly taken account of ECHR jurisprudence. The revised EU Treaty now provides that the EU will also ‘accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms’.80 ECHR jurisprudence can be used in EU law cases. However, Article 6(3) of the Treaty makes clear that while ECHR principles and those from the constitutional traditions of member states shall form ‘general principles of EU law’, this does not mean that it will affect EU competences. Thus again, actions attempting to utilise such rights will only arise where this is in an area where the EU has competence. An organisation which is likely to prove increasingly influential in the development of human rights-based policy at the EU level post Lisbon is the European Union Agency for Fundamental Rights. This was established in 2007 and replaces an earlier organisation, the European Monitoring Centre for Racism and Xenophobia.81 This body has three main roles. First, it has the task of collating information regarding the effects of EU action in the area of fundamental rights. Secondly, it provides advice to the EU and its member states. Thirdly, the Agency has the task of promoting dialogue within civil society and to raise awareness of fundamental human rights. This is affected through a cooperative network (a ‘Fundamental Rights Platform’), which facilitates exchange of information between the Agency and key stakeholders. It has limitations, however. It does not operate as a more permanent monitor nor does it have powers to examine individual complaints brought by individuals. Instead, it cooperates with other bodies, such as governments of member states, national human rights organisations, and other Community and Union agencies. The Agency is currently undertaking a project on the Fundamental Rights of Persons with Disabilities and is examining fundamental rights of persons with mental health problems.82 This may prove important in structuring EU approaches in the future. The Charter itself is a wide-ranging document. In its preamble a distinction is made between ‘rights, freedoms, and principles’. Some of the

80 81 82

Art 6(2) TFEU. Council Regulation 168/2007/EC establishing a European Union Agency for Fundamental Rights [2007] OJ No L53/1. ,http://fra.europa.eu/fraWebsite/research/publications/publications_per_ year/pub-disability-overview_en.htm..

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EU Charter’s articles can be perhaps better seen as merely aspirational. A number of these may prove particularly relevant in relation to framing EU law and policy in the area of mental health, and it is those rights and freedoms which are particularly focused on in this paper. The Charter makes a specific reference to a right to health care. Article 35 provides that: Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. As Hervey has commented, this Article has two elements.83 The first is an expression of individual entitlement to health care. The second is the mainstreaming provision in Article 152 EC (now Article 168). Such a right may on its face be seen as somewhat problematic. Respecting a right to health care may sit uneasily with respect for fundamental rights at the national level; for example, it can be seen as undermining individual state resource allocation policies if there is a specific right to demand health care in certain instances. Nonetheless, Hervey suggests that ‘This element of the Charter may be seen as a kind of “supermainstreaming” expression of the values that should underpin EU law and policy.’84 In other respects, this particular right may be of limited utility, at least in relation to litigation. Hervey has argued that while: . . . a ‘right to health’ might make a difference in terms of the discourse available to judicial bodies to resolve what are effectively matters of resource allocation . . . in the final analysis [it] would be unlikely to make a difference in the substantive outcome of any litigation.85 We return to the issue of patients claiming rights of access to health care below in the context of the discussion of the Patients Rights Directive. Article 1 of the Charter refers to the fundamental principle of human dignity. This is left undefined. What constitutes ‘dignity’—a right to which reference is made in certain continental jurisdictions—is uncertain, since dignity is a problematic concept in relation to which there is no clear consensus.86 Thus, in practice, the utility of this provision 83 84 85 86

Opinion 2/94, above, para 33. Hervey, ‘The Right to Health in European Union Law’, in Hervey and Kenner (eds), Economic and Social Rights, above, n 79 at 202. Ibid, 210. See for example the discussion in D Beyleveld and R Brownsword, Human Dignity in Bioethics and Biolaw (Oxford University Press, Oxford 2001);

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in relation to forming mental health law and policy at the EU level in the future other than at a broad rhetorical level may be questioned. As in many international statements of human rights, Article 2 provides for respect for the right to life. However, this right is likely to have little direct impact in relation to changing approaches to care and treatment of the mentally ill given that in the past, in the context of the ECHR jurisprudence, it has not been seen as affording a right to demand treatment.87 Article 4 of the Charter concerns the prohibition on the infliction of torture and inhuman and degrading treatment or punishment. This is a right of particular importance given the vulnerability of detained patients. In addition, Article 3 refers to the integrity of the person. The content of Article 3 is reflective of provisions in the Council of Europe Convention on Human Rights and Biomedicine and constitutions of a number of EU Member States.88 The first part of Article 3 makes reference to informed consent. It states that: 2. In the fields of medicine and biology the following must be respected; (a) The free and informed consent of the person concerned according to the procedures laid down by law. Of course, this is something which is of integral importance today in the delivery of health care. Respect for informed consent and thus individual autonomy in relation to treatment in the case of a patient with decision-making capacity is of fundamental importance.89 This provision can be usefully read in conjunction with other provisions of the Charter. Article 7 in Chapter II, ‘Freedoms’, refers to the right to respect for private life. An analogous provision in the ECHR has been referred to as not only being applicable to the privacy of personal information, but in addition, as conferring respect for individual decisionmaking autonomy, and requiring consent to any medical activity that involves an assault on the physical or psychological integrity of a

87 88

89

H Biggs, Euthanasia, Death with Dignity and the Law (Hart Publishing, Oxford 2001). Burke v UK [2006] App No 1907/06; D v UK (1997) 24 EHRR 423. Basic Law of the Federal Republic of Germany, Art 2 ‘Everyone has the right to life and to physical integrity’; Constitution of the Kingdom of Spain, Art 15 ‘Everyone has a right to life and physical and moral integrity’; Constitution of Portugese Republic, Art 25 ‘The moral and physical integrity of the person is inviolable’. See further, SAM McLean Autonomy, Consent and the Law (Routledge, London 2009); A McLean Autonomy, Informed Consent and Medical Law: A Relational Challenge (Cambridge University Press, Cambridge 2008).

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person.90 As in many traditional civil and political statements of rights, the right to freedom of expression and information is contained in Article 11. This may be relevant for health care professionals who wish to blow the whistle on poor standards of clinical practice. Whistleblowing has long been important in the area of mental health as a means of highlighting human rights abuses. The Charter provides some safeguards in relation to discrimination which, as noted above, can be a major issue in the context of mental illness. Article 21 is a broad non-discrimination provision prohibiting discrimination on the grounds of sex, race, colour, ethnic or social origin, genetic features, language, religion, or belief. One further rights-based development alongside the Charter is also leading to an evolution of EU policy regarding discrimination in relation to disabilities. The UN Convention on the Rights of Persons with Disabilities which was adopted on 13 December 2006 and entered into force on 3 May 2008 provides a broad statement concerning disability discrimination. This is now reflected in the EU Disability Strategy 2010 – 20 launched in November 2010. The focus of this Strategy has been in the context of employment and goes beyond the scope of this paper, but its overall impact may be much broader in the future, changing attitudes to those with disabilities. The Charter then goes on to consider two groups within the population: children and the elderly. It is notable, however, that no specific reference is made to persons lacking mental capacity in the Charter provisions. The need to ensure respect for children’s rights of participation in decisions concerning their health and treatment in the area of mental health has been a growing theme in the literature in recent years.91 Article 24 provides that children should have the ability to freely express their views and that these should be taken into account in accordance with their age and maturity. Provision is made for the rights of the elderly in Article 25, which include their right to lead a life of dignity and independence. This is interesting given that there is as yet no separate international declaration which addresses the rights of the elderly. Mental health issues in relation to the elderly population are likely to be particularly challenging over the next few decades, as

90

91

Y F v Turkey [2003] ECtHR 24209/94; see also X v Austria, App No 8278/ 78, 18 Eur. Comm’n HR DR 154 (1980), 155; and Acmanne and Others v Belgium App No 10435/83, 40 Eur Comm’n HR DR 251 (1984), 254. See generally UN Convention on the Rights of the Child adopted and opened for signature and ratification by the General Assembly Resolution 44/25 of 20th November 1989. Entryinto force 2nd September 1990. R Sandland, ‘Children, Mental Disorder and the Law’ in LO Gostin, P Bartlett, P Fennell, JV McHale and R McKay (eds), Principles of Mental Health Law (OUP, Oxford 2010).

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with an increasing ageing population there is likely to be a rise in ageing-related mental health disabilities such as dementia and Alzheimer’s disease. Also, Article 26 concerns the integration of persons with disabilities into the life of the community. As noted above, the Charter does not provide a broad new jurisdiction enabling new causes of action as such. Some further limitations upon its operation are also contained within the text of the Charter. Article 52(1) provides that: Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others. This Article illustrates one notable problem with human rights-based analysis, namely the issue of conflicting rights of different individuals and of groups. There is no hierarchy of rights within the Charter and effective resolution of conflicting rights remains an issue in an era of scarce resources. In some instances, Charter rights will be interpreted consistently with rights which are contained in the ECHR. Article 52(3) provides that in situations in which those rights that are included in the EU Charter correspond to those contained in the ECHR, then the meaning and the scope of those rights is treated as the same. In addition, it is provided in Article 53 that the Charter of Fundamental Rights is not to be interpreted as restricting human rights provisions which are contained in the EU law, international law, or international agreements to which the Member States are parties. Article 51(2) states explicitly that the EU Charter ‘does not establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties’. Given the extensive ECHR jurisprudence in relation to mental health, this may provide scope for development here in the future.92 While existing areas of EU activity in the area of mental health will clearly be bolstered by the Charter, at least at a rhetorical level, whether a radical engagement with fundamental rights will be a 92

See, for example, European Commission, ‘Promoting the mental health of the population: towards a strategy on mental health for the European Union’, (Green Paper on Mental Health) COM(2005) 484 final; European Commission, ‘Together for Health: A Strategic Approach for the EU 2008– 2013’ (White Paper) COM(2007) 630 final. At the meeting of the EPSCO Council, 6 December 2007, Commissioner Markos Kypriano explained to member states that he intended to organise a High Level Conference on Mental Health. See also Hervey and McHale, n 13 above, 435 –6.

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driver for rapid change in law and policy is perhaps questionable, at least initially. Over the past decade, while admittedly only acting as a soft-law measure, it has not been a main driver to change law and policy in the area of mental health. Lisbon may be a trigger for change, however. Certainly, the ECHR has been important in evolving approaches to mental health across the Council of Europe countries and over time the Charter provisions may contribute to reframing policy at the EU level and at the member state level.

IV. THE PATIENTS’ RIGHTS DIRECTIVE AND MENTAL HEALTH While the Charter may prove influential in some respects in relation to mental health law and policy at the EU level and in turn is likely to have a consequent impact on member states, such impact is likely to be gradual. One major new development which may have perhaps at least as great an impact in relation to the law and policy concerning mental health and mental health services across the EU is the new EU Patients Rights Directive.93 Here, we explore the background to the Directive, how it now operates, and its possible impact in the area of mental health. The backdrop to the Patients Rights Directive is to be found in a number of cases which came before the European Court of Justice concerning free movement rights in EU law. Article 56 TFEU (ex Article 49 EC) Treaty provides that: Within the framework of the provisions set out below restrictions on the freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State of the other than that of the person for whom the services are intended.94 The free movement provisions in the Treaty were utilised in the context of claims concerning rights to treatment. Medical treatment was regarded as a ‘service’ by the ECJ.95 Patients challenged the refusal by national social insurance systems to reimburse costs of treatment which they had undertaken in another member state.96 In the case 93 94

95 96

Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients rights in cross-border healthcare. Art 57 TFEU (ex Art 50 EC) further provides that: ‘Services shall be considered to be “services”’ within the meaning of the Treaties where they are normally provided for remuneration . . . “Services” shall in particular include . . . (d) Activities of the professions.’ See further, ECJ, Joined Cases 286/82 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377; ECJ, Case C-158/96 Kohll [1998] ECR I-1935. See Reg EEC 1406/71 and Reg EC 883/2000.

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of Kohll, the refusal of the Luxembourg social insurance scheme to refund the cost of orthodontic treatment in Germany was held to be contrary to free movement principles.97 This was an approach subsequently extended to hospital services.98 These cases caused controversy, not least because of their potential to impact upon resource allocation processes at the member state level. The policy dimension of such issues was addressed by the European Court of Justice (ECJ), which later stated that member states could impose some forms of restriction such as prior authorisation to avert consequent instability to the operation of national health systems in the case of hospital care.99 This did not mean that member states were given unfettered discretion, and instead the ECJ was prepared to scrutinise the basis on which access was denied.100 In the case of Watts v Bedford PCT, decided by the ECJ in 2006,101 the ECJ confirmed the applicability of this line of cases in a state with a National Health Service rather than social insurance scheme. In Watts, the refusal by a Primary Care Trust to refund the cost of a hip operation undertaken in France was successfully challenged using the EU Treaty free movement provisions where the patient claimed that she had been faced with undue delay in accessing treatment. It can be argued that such cases can be seen in terms of the development of a ‘right to cross-border treatment’ or at least a ‘right to access cross-border treatment’. As we noted above, a right to health care is recognised under the Charter of Fundamental Rights. The language of ‘rights’ in relation to cross-border treatment has been evoked in relation to subsequent policy developments and now in relation to the new EU Patients Rights Directive. While the Charter casts rights as aspirational tools, in contrast, the Directive utilises rights as effectively realisable and indeed triggering more clearly definable goals. ‘Rights’ in this context are seen as arising through principles designed to pursue economic ends as opposed to a human rights-based jurisdiction.

97

ECJ, Case C-158/96 Kohll [1998] ECR I-1935. ECJ, Case C-157/99 Geraets-Smits v Stchting Ziekenfonds VGZ and Peerbooms v Stichting CZ Groep Zorgverzekerigen [2001] ECR I-5473, and ECJ, Case C-368/98 Abdon Vanbraekel and others v Alliance nationale des mutualities chretiennes [2001] ECR I-5363. 99 ECJ, Case C-385/99 Mu¨ller-Faure´ and van Riet [2003] ECR I-4509. 100 ECJ, Case C-56/01 Inizan v Caisse primarie d’ Assurance Maladie des Hauts de Seine [2003] ECR I. 101 ECJ, Case C-372/04 R (on the application of Watts) v Bedford Primary Care Trust, Secretary of State for Health [2006] ECR I-4325 and see further on this case, A du Bois-Pedain, ‘Seeking Healthcare Elsewhere’ (2007) CLJ 66; G Davies, ‘The Effect of Mrs Watts Trip to France on the National Health Service’ (2007) 18 Kings Law Journal 160; JV McHale, ‘The Right to Medical Treatment in EU Law’ (2007) 15 Med L Rev 99. 98

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The wave of free movement cases involving health care led to a revaluation of the issue of patients seeking treatment abroad across the EU in general. The European Commission issued a consultation concerning Community action on health care services following the free movement cases.102 This led to the production of Draft Directive on the application of patient rights in cross-border health care.103 The Directive was the subject of considerable debate and revision. A final agreed version was formally ratified in March 2011.104 The full implications of the Directive go far beyond this current paper. Here we focus upon the specific aspects which will be pertinent in relation to mental health. First, the Directive provides a legislative framework for those seeking treatment in another EU member state. It recognises and, to some extent, facilitates patient access to treatment in another jurisdiction. In that respect, it builds upon the existing case law in the area. However, the Directive also provides more room for manoeuvre than in the past for states in relation to resource allocation issues. It expands the situations in which member states may implement systems for prior-authorisation of health care resources. Article 1(2) of the Directive applies to all health care delivery whether financed via social insurance schemes of states or national health systems. Certain types of care are explicitly excluded from the scope of the Directive, including long-term social care.105 The Directive stresses that cross-border care must be accessible by the citizens of member states. So for example, Article 6 of the Directive provides that there must be national contact points for cross-border care. This contact point must provide patients on request with information in relation to, eg, the quality and safety of health care, which providers are subject to such standards and on issues such as the accessibility of hospitals for persons with disabilities. It goes onto note that: . . . healthcare providers provide relevant information to help individual patients to make an informed choice, including on treatment options, on the availability, quality and safety of the healthcare they provide in the Member State of treatment.106 102

103

104 105 106

Communication from the Commission, Consultation Regarding Community action on Health Services, Commission of the European Communities, Brussels, SEC (2006) 1195 of 26 September 2006. ‘Proposal for a Directive on the application of patients’ rights in cross border healthcare’ COM (2008) 414 final. See further E Szyszczak “Patients’s Rights: A Lost Cause or a Missed Opportunity?” in JW Van de Gronden U Neergaard and M Krajewski (eds), Health Care and EU Law (Asser/ Springer 2011). Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients rights in cross-border healthcare. Ibid Art 1(3). Ibid Art 4(2) (b).

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This means that there will be greater visibility as to the range of care and treatment available in other member states. Patients will thus be able to have easier access to details of new types of therapies and treatments being employed in other member states which will inevitably lead to the range of care and treatment options made available in their home member state being open to question. Following the earlier ECJ case law, the Directive provides that patients who seek treatment in other EU member states may claim reimbursement in their home member states. The Directive states that it is the responsibility of member states to reimburse costs.107 These costs are to be reimbursed ‘if the healthcare in question is among the benefits to which the insured person is entitled in the Member State of affiliation’.108 However, patients ‘rights’ are subject to significant limitations. These extend beyond the requirements for prior authorisation in relation to hospital treatment which had emerged from the earlier ECJ case law in the area. Now, under Article 8(2), a system for prior authorisation can be utilised where care is subject to planning requirements with the aim of resource allocation and where it falls within one of the following categories. First, where it involves overnight hospital accommodation for the patient for at least one night. Secondly, prior authorisation may be justifiable where it requires the use of what is highly specialised and cost intensive infra-structure or medical equipment. This is a very broad provision and indeed much modern treatment could be seen to fall under this qualification. Thirdly, the Directive provides that such prior authorisation can operate where it concerns ‘treatments presenting a particular risk to the patient or the population’.109 States can also refuse authorisation in a situation in which the health provider in another member state is one which raises serious concerns regarding the quality and safety of patient care.110 A patient seeking mental health care and treatment in another member state thus might be denied this on the basis of concerns regarding approaches and standards of care in another member state. The Directive also provides that authorisation can be refused where: . . . healthcare can be provided on its territory within a time-limit which is medically justifiable, taking into account the current state of health and the probable course of the illness of each person concerned.111 107 108 109 110 111

Ibid Art 5. Ibid Art 7(1). Ibid Art 8(6) (a) (b). Although there is an exception where the provider is subject to EU legislation which concerns a minimal level of quality and safety of care. Ibid Art 8(6) (c). Art 8(6)(d).

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This is very much in line with the approach taken in earlier free movement cases and means that use of waiting list times is justifiable as long as the use of that time in relation to a particular patient is justified on a case by case basis. The extent to which individuals with mental illness attempt to seek treatment in other jurisdictions remains to be seen. It can be speculated that in practice here the implications of the Directive for member states will not be large. In the period prior to the Directive, despite concerns by academic commentators, the numbers of patients who actively sought treatment in other member states was very limited. This may be due to a range of factors.112 First, the fact that patients would still have to pay upfront and then, subsequently, may reclaim costs may deter some patients. It has been suggested in the past that claiming the right to seek treatment abroad and reimbursement from the home member state could essentially be seen as a ‘middle-class’ option due to the need to fund the treatment upfront. Secondly, to access treatment abroad requires the ability to access knowledge about such treatments and to articulate needs. This may operate to exclude some patients with mental illness from seeking this as an option. Thirdly, travelling for treatment may only really be practically possible in relation to elective treatments. In contrast, mental health care is frequently long term and on-going. Also, crucially, the Directive excludes expressly long-term social care from its ambit. Nonetheless, that does not mean that the Directive does not have the potential to be exceedingly influential in relation to mental health care in other respects. Far from it. Perhaps, prophetically in 2001, Nys commented that the free movement cases could result in a ‘harmonised package’ of comparable health services across the EU.113 Where the Directive is likely to have impact is in relation to patients’ and member states’ expectations regarding standards of care and the delivery of care packages. Article 10 of the Directive provides that member states shall provide ‘such mutual assistance as is necessary for the implementation of the Directive’, which includes co-operation on standards and guidelines regarding quality and safety and the exchange of information. While not harmonisation in itself, the very fact that member states will have to co-operate on such an issue may result in a closer alignment of standards in the future at least as far as some states are concerned. Such alignment of approaches can be seen through other developments in the area of health care. For example, the EU has already been involved in measures to facilitate the improvement of 112 113

See further J McHale, ‘Framing a Right to Treatment in English Law. Watts in Retrospective’ (2007) 14 (3) Maast J Eur & Comp L 263. H Nys, ‘Comparative Health Law and the Harmonisation of Patients’ Rights in Europe’ (2001) 8 EJHL 317.

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patient safety standards.114 In its 2008 Communication on Patient Safety, the Commission stated that its aim was that of ‘an integrated approach, placing patient safety at the core of high quality health care systems by bringing together all factors that have an impact on the safety of patients’.115 The Commission itself was also to work on the development of common ‘definitions, terminology and indicators’ on patient safety.116 It would additionally facilitate the sharing of information, best practice, and the promotion of EU research programmes in relation to patient safety and consider how member states could best collaborate in relation to patient safety issues in the future. In the area of mental health, it is worthy of note that there are already in existence strategy documents which may assist this process. For example, the World Health Organisation document Improving Health Systems and Services for Mental Health sets out an integrated strategy for health system development.117 The Directive may thus facilitate access to care and treatment in other jurisdictions, but this is less likely in the context of mental health than in other contexts. As noted above, mental health care and treatment are not classic patient mobility territory. This frequently requires on-going care, which is clearly distinct from the one-off elective procedures which appear likely to represent the bulk of the treatments sought in other jurisdictions. On-going social care is also excluded from the provisions of the Directive. Rather, the new Directive may have impact in other ways. It could lead to a further dialogue as to what treatments may be available across the EU. It could promote the prospect of a greater alignment in relation to standards of care across the EU itself. This could lead to minimum standards of acceptable care. Ultimately, this could also impact upon the education and training of health care professionals involved in the care and treatment of those with mental ill health. However, convergence here in relation to standards will be in itself a very challenging task. As we have already seen, the sheer diversity of approaches across the EU to issues from institutionalisation

114

115 116 117

Communication from the Commission to the European Parliament and Council on Patient Safety Concerning the Prevention and Control of Healthcare Associated Infections COM(2008) 837 final, para 1. See also in relation to the prospect of the Directive aligning co-operation standards through the duty of co-operation contained in the Directive, T Hervey “Co-operation Between Health Care Authorities in the Proposed Directive on Patients Rights in Cross-Border Care” and J McHale “Health Care, the United Kingdom and the Draft Patients Rights Directive: One Small Step for Patient Mobility but a Huge Leap for an Enlarged NHS?” in J W Van de Grondern n 103 above. Ibid. Ibid para 7. WHO, Geneva 2009.

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versus community care to the use of restraint and medication are likely to require much more than simply an extensive dialogue to resolve. This is also likely to prove a very slow process. But patients and their families are increasingly going to have access to information about other approaches and care options. These structural changes, coupled with the greater ability to access information about care and treatment options through, eg the internet, may provide a further trigger for change. There is the prospect of instructions and professions being driven closer together through harmonisation of standards. At the same time, change may also emerge through patients themselves becoming increasingly informed and vocal. Overall, such developments in the longer term may facilitate the alignment of and improvement of standards of mental health care and treatment across the EU.

V. CONCLUSIONS Mental health law and policy is something which is increasingly of concern at EU as well as at the member state level. As the EU has made clear, mental health is a priority area as part of the broader public health priorities of the EU. After mapping the contours, to borrow a phrase from Hervey, what then might be the next steps?118 From the Green Paper to the Council’s June 2011 Communication establishing a Joint Action on Mental Health, gradually at the EU level, the disparate measures adopted to date are being drawn together. Does this suggest that we are moving slowly but inexorably to what will, ultimately, be discernable as being a ‘single body of “EU mental health law”’? Perhaps, but not quite yet. While the ability to access care and treatment in other member states and the Patients Rights Directive may provide a trigger for reform, as noted above, change here is likely to be through the greater exchange of information regarding good practice and the alignment of standards of care across member states as a whole. The increasing interface with the Council of Europe jurisprudence and the EU’s own Charter of Fundamental Rights may lead to some reconceptualisation of these issues at EU and member state level. Again though, as noted above, the Charter has limitations both in terms of definition and scope for enforcement. One major challenge is that there still remains a stark disparity between approaches to the care and treatment of those with mental 118

This phrase is quite deliberately borrowed from the leading article by Hervey when she literally mapped the terrain of health law and policy in the EU as it then was, see further T Hervey, ‘Mapping the Contours of European Union Health Law and Policy’ (2002) 8 EPL 69. In many respects, it is hoped that this article will serve of similar assistance to the reader.

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illness across the member states of the EU. Approaches will take some time to alter and, moreover, effective mental health law and policy at the member state level is also critically dependent upon the services receiving appropriate levels of funding, something which is problematic in a constrained economic environment in certain parts of the EU today. Inevitably, any analysis of future prospects in the light of current developments incorporates a considerable degree of speculation. The current initiatives, which directly and, indeed, indirectly, are likely to impact upon mental health law and policy at EU and member state level remain diverse and, indeed, in many instances are still nascent. Nonetheless, if we take as, a comparator, the manner in which health law and health policy have emerged across other areas of the EU over the past two decades, this illustrates that such future alignments are clearly possible.119 Indeed, from a patient’s perspective, such alignments regarding care and treatment in relation to those with mental ill health may be seen as highly desirable. Heightened visibility and debate regarding care and treatment of those with mental ill health is vital to ensure that rights and dignity are safeguarded and appropriate treatment is given. Dialogue and participation are, of course, critical here, as is scrutiny and accountability. The vulnerability of those with mental illness cannot be underestimated and the prospect of reflective, critical rights-based mental health policy and law at EU level, respective of needs and dignity, and impacting positively at member state level in the years to come, is surely something which is to be welcomed. Of course, at present, we remain some considerable way from a ‘European Mental Health Law’ itself. Before we can reach that point, we would need far more than the policy initiatives emanating from the Commission documents from 2005 to 2011. There would need to be far greater alignment and, indeed, consensus of approaches. As the Europe 2020 Strategic Flagship Initiative ‘European Platform Against Poverty and Social Exclusion’ has recently noted, those people who have mental health problems are one of the most excluded groups in society.120 Discrimination and stigmatisation remain a major concern. Changing attitudes and approaches is, ultimately, the most crucial thing for providing responsive rights-based health care for those with mental ill health. This, of course, is something which will take far longer than simply changing law or changing policy. Moreover, to

119 120

See Hervey and McHale, n 14, chapter 10. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The European Platform Against Poverty and Social Exclusion: A European Framework for Social and Territorial. COM (2010) 758 final.

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attain change in relation to mental health law in many member states, this may also mean that the whole basis of their own health law may require reconceptualisation, requiring re-consideration of questions of consent, issues of autonomy, and questions of resources generally. It may be that before we can move to greater alignment or, indeed, a single body of EU mental health law, we need to first reconceptualise what is health law and the EU itself today. What is clear, however, is that while a single body of EU mental health law is, perhaps, unlikely, at least in the near future, the EU presents what is a potentially very influential site for regulation, law, and policy in this area in the years to come.

Medical Law Review, 19, Autumn 2011, pp. 636–645 doi:10.1093/medlaw/fwr027

COMMENTARY INCAPACITATED PERSONS AND DEPRIVATION OF LIBERTY Surrey County Council v CA, LA and MIG and MEG [2010] EWHC 785 (Fam), (Court of Protection) P (otherwise known as MIG) and Q (otherwise known as MEG) v Surrey County Council, CA and LA [2011] EWCA Civ 190 Introduction P and Q (known, respectively, as MIG and MEG in the proceedings before Parker J) were sisters who had moderate-to-severe permanent learning disabilities. P, who was born in April 1991 and was eighteen, had the cognitive ability of a child of about two and a half, with a learning disability described as being ‘either at the lower end of the moderate range or at the upper end of the severe range’,1 and hearing, visual, and speech impediments.2 Q, who was born a year earlier and therefore was still a minor at the date of Parker J’s judgement, had the cognitive ability of a four- to five-year old and visual impediments.3 Q had a learning disability at the high end of the moderate range, with quite a sophisticated level of emotional understanding, although her behaviour could be challenging and she was considered to have possibly autistic traits.4 As a result of their learning disabilities, P and Q lacked capacity to make any decisions in relation to residence and care, contact, education, medical treatment, and legal matters,5 and it was considered that this incapacity would be permanent, although it was possible that Q’s level of mental functioning might improve if she were able to learn to control her emotions.6 They had both been removed from their family home into the care of the local authority in 2009, having suffered deprivation, neglect, and physical chastisement while in the care of their mother and stepfather. At the time of the hearing before Parker J, P was living in a foster home in Surrey and was devoted to her foster mother, who provided her with considerable support in relation to most aspects of her life. 1

2 3 4 5 6

[2011] EWCA Civ 190 [7]. The background facts in relation to P and Q are set out in the first instance judgment in summary form at [2010] EWHC 785 (Fam) [1]–[10] and [207]–[219], and in the Court of Appeal judgment at [2011] EWCA Civ 190 [1], [7]–[12]. [2010] EWHC 785 (Fam) [208]. Ibid [214]. [2011] EWCA Civ 190 [8]. [2010] EWHC 785 (Fam) [3]. [2011] EWCA Civ 190 [9].

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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She was never locked in her bedroom and had never shown any inclination to leave this home, although she would have been restrained had she made any attempt to leave. She left her home to be taken to and from a further education unit during term time and to go on trips and holidays with her foster mother.7 Q lived in a specialist home, where she had her own bedroom. She was not locked in at this home, and had never shown any desire to leave the home unaccompanied, although she required continuous supervision and control. She attended the same educational unit as P and enjoyed a fuller social life than her sister. She occasionally suffered outbursts, which were directed at other residents of the unit and sometimes had to be physically restrained during these outbursts, although her behaviour was becoming more stable. She was also given medication, Risperidone,8 to control her anxiety.9 At the first instance hearing, Parker J found that it was in P and Q’s best interests that the current arrangements with regard to residence and attendance at college continue, and approved arrangements for supervised contact with their mother, supported contact with their siblings and no contact at all with their stepfather. However, the court was also asked by the Official Solicitor to consider whether P and Q were being deprived of their liberty in their placements and whether Article 5 of the European Convention of Human Rights (ECHR) was therefore engaged. Counsel for the Official Solicitor argued that both P and Q were deprived of their liberty because they were both unable to choose where they lived, were not free to leave their current homes, were subject to continuous supervision and control, and by virtue of the declarations made by Parker J in relation to contact, were deprived of certain social contacts. In relation to Q, it was also suggested that the fact that she lived in a residential care home and received medication pointed towards a conclusion that she was being deprived of her liberty.10 The County Council argued that the arrangements made for

7

Ibid [14]. [2010] EWHC 785 (Fam) [207] –[211]. Risperidone is a second generation antipsychotic drug used inter alia to treat behavioural problems in children and adolescents with autism. See eg R. Canitano and V. Scandurra, ‘Psychopharmacology in Autism: An update’ (2011) 35 Progress in Neuro-Psychopharmacology & Biological Psychiatry 18; R. Zuddas, R. Zanni and T. Usala, ‘Second Generation Antipsychotics (SGAs) for Non-Psychotic Disorders in Children and Adolescents: A Review of the Randomised Controlled Studies’ (2011) 21 European Neuropsychopharmacology 600. 9 [2011] EWCA Civ 190 [15]; [2010] EWHC 785 (Fam) [213]–[218]. By the time of the CA hearing, P was attending a residential college in Somerset, returning to her foster mother’s home during vacations, and Q was living in an adult supported living placement. 10 [2010] EWHC 785 (Fam) [193]. 8

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P and Q did not amount to a deprivation of their liberty, although it was conceded that the administration of medication and the fact that Q was placed in a residential home potentially tipped the balance in favour of a ruling that Q was deprived of her liberty.11

Deprivation of Liberty: Parker J’s Ruling Parker J considered in some depth the relevant jurisprudence of both the European Court of Human Rights (ECtHR) and domestic courts in relation to deprivation of liberty and Article 5.12 Article 5 provides that: (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: . . . (e) the lawful detention . . . of persons of unsound mind . . . It has been made clear, both by the ECtHR,13 and English courts,14 that a deprivation of liberty has three elements: (i) an objective element of confinement in a particular restricted space for a not negligible length of time; (ii) a subjective element: that the person has not validly consented to the confinement in question; and (iii) that the deprivation of liberty be imputable to the state.15 Parker J concluded that a person’s belief that they were not depriving another of their liberty was irrelevant to the question of whether that person was actually deprived of their liberty.16 She accepted that the purpose for which a person’s freedom of movement had been restricted was not a relevant factor to be considered in determining the issue of whether there had been a deprivation of liberty in cases like those of P and Q, although she observed that it was relevant to consider, when trying to determine the facts of the case, and whether objectively P and Q were deprived of their liberty, that they had been housed in their placements upon welfare grounds: because they needed homes, not because they needed to be restrained or treated, and to consider the reasons why they required constant supervision and control.17 The fact that an incapacitated adult was incapable of consenting to reside 11 12 13 14

15 16 17

Ibid [126]. Ibid [132] –[166]. Storck v Germany (2005) 43 EHRR 96. See eg JE v DE, Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, discussed by Parker J at [2010] EWHC 785 (Fam) [148]–[155]. Storck v Germany (n 13) [74], [76], and [89]; JE v DE (n 14) [76]–[77]. [2010] EWHC 785 (Fam) [164]. Ibid [164], [230].

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was not determinative of the issue of whether there had been an objective deprivation of liberty: if it were, then the detailed checklist contained within the Deprivation of Liberty Safeguards (DOLS)18 to assist with the assessment of whether steps taken amount to a deprivation of liberty would be unnecessary. No single factor was likely to be determinative, save in the ‘paradigm case’ of a prisoner in the custody of a gaoler.19 While Parker J accepted that it was possible for a person to be deprived of their liberty in a domestic setting,20 she considered that there must be a significant element of confinement for this to be the case.21 On the other hand, where an individual was placed in an institutional setting, although that was a factor to be taken into account, a valid distinction was to be made between confinement in a home equivalent to house arrest, which occurred in the control order cases JJ and GG,22 and the mere fact of being placed in a foster home: what mattered were the effect of the restrictions and the extent of confinement.23 Although P and Q were unable to consent to their placements, Parker J considered that the fact that the sisters were happy in them was relevant when considering whether both the objective and subjective elements of deprivation of liberty were present.24 It was argued on behalf of Q that the fact of her medication meant that her care arrangements went beyond the ‘ordinary restrictions’ which might normally prevail in a children’s home,25 and was a factor which pointed to her being deprived of her liberty. Parker J rejected this approach, finding that the fact that medication was administered to Q did not in itself create a deprivation of liberty, and concluding that, on the facts, medication did not play a part in restraining Q to the extent that she was deprived of her liberty: she had not been medicated in order to be admitted to the placement, was not medicated to prevent her leaving the premises, and would have required the medication in any setting. She also determined that any physical restraint which had to be used to control Q’s behaviour also did not amount to

18 19

20 21

22 23 24 25

Mental Capacity Act 2005 Deprivation of Liberty Safeguards (DOLS) Code of Practice (CoP) (2008), paras 2.5 –2.9. [2010] EWHC 785 (Fam) [202], referring to the comments of Lord Hoffman in Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385 [36]. Ibid [199]. Cf DOLS (n 18) para 1.20. Ibid [200]. See eg the control order cases Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385; Secretary of State for the Home Department v GG [2009] EWHC 142. See n 21. [2010] EWHC 785 (Fam) [202]–[203]. Ibid [204]. Ibid [216].

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a deprivation of liberty.26 Having considered the facts of P and Q’s cases,27 she decided that neither of them were deprived of their liberty:28 the ‘concrete situation’ in the case being that, because of their cognitive limitations, both of them were living the kind of lives that they would be living if they were at home with their family.29

The Court of Appeal’s Decision The Official Solicitor appealed against Parker J’s determination that the arrangements made in respect of P and Q did not deprive them of their liberty, arguing that she had erred by taking into account factors which were irrelevant to the determination as to whether their confinement amounted to a deprivation of liberty, in particular: the fact that P and Q were happy in their placements; the benign nature of the reasons for moving them to the placements, and that their best interests were being served by the arrangements. It was also argued that she had failed to take into account relevant factors, such as the treatment of Q with medication to moderate her behaviour.30 The Court of Appeal was generally approving of Parker J’s judgment: it was described as being ‘excellent’,31 and her analysis of whether P and Q were deprived of their liberty was said to be ‘magisterial’.32 They dismissed the appeal, upon the basis that Parker J had been correct to conclude that P and Q had not been deprived of their liberty, although it was considered that Q’s case was ‘closer to the border of deprivation’ by virtue of the fact that she was not living in a family home, occasionally needed to be restrained, and was medicated to control her anxiety.33 However, the Court of Appeal did not entirely agree with all aspects of Parker J’s judgment. They rejected the observation made by her that the fact that P and Q were happy in their placements was relevant to her inquiry into the objective element, holding that the happiness of a person was not relevant to the issue of whether she was being deprived of her liberty, although it was relevant to the issue of whether any such deprivation was in the best interests of the incapacitated person by virtue of section 4(6)(a) of the Mental Capacity 26 27 28 29 30

31 32 33

Ibid [218]. Ibid [233], where Parker J sets out specific relevant factors. Ibid [237]. Ibid [229]. [2011] EWCA Civ 190, Mummery LJ [50]. The Equality and Human Rights Commission were permitted to intervene in the appeal for the purpose of adducing limited evidence and making written submissions. Ibid, Mummery LJ [43]. Ibid, Wilson LJ [24]. Ibid, Wilson LJ [34], with whom Smith lJ (at [41]) and Mummery LJ (at [51]) agreed.

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Act 2005 (MCA),34 and a determination of this issue was a necessary condition of it being both ‘lawful’ under the MCA,35 and ‘in accordance with a procedure prescribed by law’ under Article 5(1).36 Any objection made by a person to confinement being imposed was relevant both to the subjective element and to the objective element, since this would lead to conflict, at the very least in the form of arguments and more probably in the form of ‘tussles and physical restraints’ and even perhaps forcible return by the police, and the level of conflict inherent in overruled objections was highly relevant to the objective element.37 On the other hand, the absence of objections was also of substantial relevance to the objective element, since that would lead to an absence of conflict and a peaceful life.38 In relation to the significance of medication, the Court of Appeal did not follow Parker J’s approach, instead ruling that the administration of medication, at least of antipsychotic drugs and tranquillisers, pointed towards the existence of the objective element because it suppressed a person’s wish to express herself as she otherwise would, and, if it had the effect of suppressing the making of objections, it would be highly relevant.39 The relevance of medication was also increased if force had to be used during its administration. Conversely, the absence of medication was a pointer in the opposite direction.40 The Court then moved on to consider the relevance of the purpose behind the placements and the consideration given by Parker J to the ‘reasons’ why P and Q were living in their current homes. While Wilson LJ did not agree with the terminology used by Parker J on this point, and indicated that it was wrong to attach significance to the fact that the purpose of the placements had been to further the best interests of P and Q, he felt that, by referring to the provision of care in a home, the judge had been, by implication, stressing the relative normality of P and Q’s living arrangement, and he considered that it was relevant to consider the normality of the individual’s home and educational or work arrangements when assessing whether there had been a deprivation of liberty: ‘It would seem then that if the individual can maintain a (relatively) normal daily balance between work and 34

35 36 37 38 39 40

Under s 4(6)(a) MCA, a person determining the best interests of a person who lacks capacity ‘must consider, so far as is reasonably ascertainable – (a) the person’s past and present wishes (and, in particular, any relevant written statement made by him when he had capacity’. MCA, s 1(5): ‘An act done, or decision made under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.’ [2011] EWCA Civ 190 [24]. Ibid [25]. See eg Storck v Germany (n 13); JE v DE (n 14). Ibid [25]. Ibid [26]. Ibid.

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home then there may not be a deprivation of liberty.’41 However, there appeared to be some division of opinion between the members of the Court of Appeal as to the relevance to be attached to previous living arrangements and the level of freedom which had previously been enjoyed by the individual. This issue was not argued before the Court of Appeal and was not focused upon by Parker J, and Wilson LJ chose not to express an opinion as to whether it might be relevant to consider whether the arrangements under scrutiny amounted to a reduction in the individual’s level of autonomy when compared with arrangements previously in place.42 Mummery LJ was attracted to submissions made by Counsel for the Council that the improvement in P and Q’s care arrangements was so marked that that it amounted to an enhancement of their liberty to the extent that Article 5 was not engaged, but described this approach as risking ‘confusing matters which affect whether a deprivation of liberty is lawful with whether it exists at all’.43 By contrast, Smith LJ went further and firmly concluded that previous arrangements were not relevant to the question of whether the present arrangements engaged Article 5. Article 5 was concerned with the objective question of whether there is a deprivation of liberty under the arrangements which are either imposed by or imputable to the state and not with the issue of whether there has been a change in a person’s situation.44 When considering whether there has been a deprivation of liberty (as opposed to mere restrictions upon it) the ‘concrete situation’45 that the individual is in must be considered, rather than whether there has been an increase or decrease in the level of liberty permitted. Arrangements might increase the degree of liberty and still represent a deprivation of it for the purposes of Article 5.46

Deprivation of Liberty This case marks the first detailed consideration by the Court of Appeal of deprivation of liberty and Article 5 ECHR in relation to incapacitated adults since the coming into force of the DOLS amendments made to the MCA by the Mental Health Act 2007. There is no ‘bright line’47 or single clear test to determine whether there has been a deprivation of liberty in a particular case: ‘The difference between deprivation 41 42 43 44 45 46 47

Ibid [29], citing D. Harris and others, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (2nd edn, OUP 2009) 124. Ibid [30]. Ibid [52]. Ibid [39]. Guzzardi v Italy [1981] 2 EHRR 333[92]; cf Storck v Germany (n 13) [71]. [2011] EWCA Civ 190 [39]–[40]. JJ (n 16) Lord Bingham [17], Secretary of State for the Home Department v AH [2008] EWHC 1018 (Admin), Mitting J [21].

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of and restriction upon liberty is . . . merely one of degree or intensity, and not one of nature or substance’,48 and ‘in order to determine whether someone has been deprived of his liberty within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’.49 Some helpful practical guidance may be found in the DOLS Code of Practice,50 and in the case law, particularly the case of JE v DE,51 in which Munby J reviewed the relevant case law and identified the factors to be considered when a determination was being made as to whether the objective and subjective elements were established.52 However, as the Court of Appeal observed, the determination of whether there is deprivation of liberty is a difficult issue,53 particularly in situations where the level of containment appears to be far removed from the ‘paradigm case’. While the Court of Appeal’s consideration of deprivation of liberty was somewhat less comprehensive than that of Parker J (they did not produce comprehensive advisory opinions in relation to the law, but instead focused upon the specific criticisms made in respect of Parker J’s judgment), the guidance provided by Wilson LJ is likely to prove to be of assistance in future cases.54

The Relevance of Purpose One area of difficulty has been the issue of the relevance of ‘purpose’ to the issue of deprivation of liberty and the question of whether, if restrictions were taken principally in the interests of the individual concerned, 48 49

50

51 52 53 54

Guzzardi v Italy (n 45), [93]. Ibid [93]. This approach has been confirmed in subsequent cases. Se eg Ashingdane v United Kingdom (1985) 7 EHRR 647 [58] –[59]; HL v United Kingdom (2005) 40 EHRR 32 [89]. Above (n 18). The Code of Practice provides examples from some of the most significant cases dealing with the issue ( paras 2.17– 2.24), identifying factors which ‘can be relevant to identifying whether steps taken involve more than restraint and amount to deprivation of liberty’ ( para 2.5) and issues which ought to be considered when a decision-maker is determining whether a deprivation of liberty has occurred ( para 2.6). However, some of these appear to be largely matters of common sense, adding little by way of guidance (eg the suggestion that the decision-maker consider ‘All the circumstances of each and every case’) and appear to be ‘circular’ (eg does the cumulative effect of all of the restrictions imposed on the person amount to a deprivation of liberty . . . ?). Cf G. Richardson, ‘Mental Capacity at the Margin: The Interface Between the Two Acts’ [2010] Med L Rev 56, 76. Above (n 14). Ibid [77] –[78]. [2011] EWCA Civ 190 [2]. Cf R(Secretary of State for the Home Office) v MHRT [2004] EWHC 2193 (Admin) Collins J [12] –[13]. They have already been taken into account in Cheshire West & Chester Council v P and M [2011] EWHC 1330 (Fam) [48].

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they might be less likely to be considered to a deprivation of liberty, since the case law has not always been consistent upon this point. In HM v Switzerland,55 the ECtHR took particular account of the fact that the authorities had ordered the applicant’s placement in the nursing home in her own interests in order to provide her with the necessary medical care and satisfactory living conditions and standards of hygiene, and concluded that the applicant’s placement did not amount to a deprivation of liberty, ‘but was a responsible measure taken by the competent authorities in the applicant’s interests’.56 This approach was followed in Secretary of State for the Home Department v MHRT and PH,57 where Keene LJ indicated that, if the restrictions were taken principally in the interests of the individual concerned, they might not amount to a deprivation of liberty. However, it did not receive support in the subsequent cases of HL v United Kingdom 58 and Storck v Germany,59 and for this reason, Munby J indicated in JE v DE that Keene LJ’s conclusions should be treated with caution, doubting whether HM v Switzerland was authoritative on this point.60 Unfortunately, appellate decisions in other contexts have suggested that the purpose was relevant: in JJ,61 a control order case, Baroness Hale observed that ‘It also appears that restrictions designed for the benefit of the person concerned are less likely to be considered a deprivation of liberty than those designed for the benefit of society’, while in Austin v Metropolitan Police Commissioner,62 a case involving the ‘kettling’ of members of the public involved in a demonstration, Lords Hope and Scott both expressed opinions that purpose was relevant when considering whether a confinement constituted a deprivation of liberty.63

Conclusion In the light of the decisions of Parker J and the Court of Appeal, it appears that, at least in the context of the care homes and treatment, the fact that the purpose for which the arrangements were made was to further the best interests of an individual is not relevant to the issue 55 56 57 58 59 60 61 62 63

(2004) 38 EHRR 17. See also Nielsen v Denmark (1988) 11 EHRR 175. At [48]. [2002] EWCA Civ 1868. (2004) 40 EHRR 761. (2006) 43 EHRR 6. Above (n 14) [70]. See R. Jones, Mental Health Act Manual (13th edn, Sweet & Maxwell 2010) at 6-0004. Above (n 21) [58]. [2009] UKHL 5, [2009] 1 AC 564 [28]. Ibid, Lord Hope [26]– [34]; Lord Scott [39]. Cf Lord Walker [44] –[46], who described Lord Hope’s conclusion re purpose as being ‘a very guarded one’ (at [43]).

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of whether there has been a deprivation of liberty.64 Given that the ‘key purpose’ of Article 5 is to prevent arbitrary or unjustified detention,65 it is submitted that this is the right approach. The question of whether a measure in respect of the care of an incapacitated adult amounts to an objective deprivation of liberty ought not to be influenced by the views of a carer as to whether they were acting to promote that person’s welfare, particularly as it is unlikely in practice that any carer will claim anything other than that they believed that they were acting in the adult’s best interests.66 Tracey Elliott University of Leicester

64 65 66

See [2010] EWHC 785 (Fam) [163] –[166]; [2011] EWCA Civ 190 [27]. See eg Guzzardi v Italy (n 45) [92]; HL v United Kingdom (n 49) [115]; [2010] EWHC 785 (Fam) [222]. Jones (n 60) 6-0004.

Medical Law Review, 19, Autumn 2011, pp. 646–656 doi:10.1093/medlaw/fwr028

COMMENTARY INDIA AND EUTHANASIA: THE POIGNANT CASE OF ARUNA SHANBAUG

‘It is my belief that death is a friend to whom we should be grateful, for it frees us from the manifold ills which are our lot.’ Mahatma Gandhi1

The debate surrounding the legalisation of euthanasia in India has proven both protracted and intractable. In many ways, the deliberations have meandered along predictable lines: opponents cry themselves hoarse about the ‘sanctity of life’ being violated by self-styled angels of death, and cite eclectic religious authorities to shore up their claim.2 Proponents of a more liberal view, on the other hand, insist that a ‘right to life’3 must include a concomitant right to choose when that life becomes unbearable or not worth living.4 They point to permissive laws in foreign jurisdictions such as the Netherlands and Oregon as being more in tune with a rights-oriented culture.5 On 7 March 2011, the Indian Supreme Court delivered a ‘pathbreaking’ judgment in the case of Aruna Ramchandra Shanbaug v Union of India 6 (hereinafter Aruna), permitting ‘passive euthanasia’ in certain circumstances. This judgment has thrust the issue firmly 1

2

3

4 5

6

See Mahatma Gandhi, ‘Speech at Prayer Meeting’ (15 January 1948) ,http:// www.gandhi-manibhavan.org/gandhicomesalive/ comesalive_originalvoice_15011948.htm. accessed 15 March 2011. See eg PL Vincent, ‘Faiths Take Nuanced View’ The Telegraph (Calcutta, 8 March 2011) ,http://www.telegraphindia.com/1110308/jsp/nation/ story_13683131.jsp. accessed 15 June 2011. Constitution of India 1950, Art 21. This provision guarantees that no person shall be deprived of his life or personal liberty, except according to the procedure established by law. See generally the arguments of the Petitioner in CA Thomas Master v Union of India 2000 Cri LJ 3729 (Kerala High Court). Interestingly, votaries of a ‘right to die’ are also able to cite several religious sources and practices that countenance a volitional end to life, such as the Hindu practice of Prayopavesa (religious self-willed death through fasting), and the Jain tradition of Santhara (self-starvation). Aruna Ramchandra Shanbaug v Union of India MANU/SC/0176/2011 (Supreme Court of India).

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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back in the media’s spotlight,7 and galvanised votaries and adversaries alike. It is hoped that the public reaction, as well the Court’s pleas for legislation on the subject, will soon bear fruit in the form of a nuanced and deliberated law. This note seeks to provide a brief overview of the current position of the law in India, as also to highlight salient socio-economic factors that further complicate the ‘right-to-die’ debate. For the purposes of this note, ‘active euthanasia’ generally refers to steps taken to deliberately induce death, whereas ‘passive euthanasia’ infers doing nothing and letting nature take its course.8

I. CASE LAW PRIOR TO ARUNA It must be noted at the outset that an attempt to commit suicide, as also any abetment of the commission of suicide, is a crime in India.9 The constitutionality of these provisions, which necessarily have a bearing on the euthanasia debate, has been previously challenged in the Supreme Court. In Rathinam,10 a two-judge Bench of the Indian Supreme Court held that the criminalisation of an attempt to commit suicide was unconstitutional. It answered the question as to whether a person who has the right to live, also possesses an attendant right to not live, in the affirmative. The Court stated that all the fundamental rights in Part III of the Constitution of India must necessarily be read together, and thus what is true of one fundamental right, is also true of the other rights.11 Drawing analogies with the freedom of speech and expression, as also the freedom of movement and association, all of which have a positive as well as a negative aspect,12 the Court pronounced that the right to life under Article 21 of the Constitution of India also includes a right to terminate one’s own life.13 7

‘Mixed Reactions to Supreme Court’s Refusal for Euthanasia for Shanbaug’ The Times of India (Mumbai, 9 March 2011) ,http://articles.timesofindia. indiatimes.com/2011-03-09/hubli/28671825_1_euthanasia-pinki-viranimixed-reactions. accessed 15 June 2011. 8 DA Wainey, ‘Active Voluntary Euthanasia: The Ultimate Act of Care for the Dying’ (1989) 37 Cleveland State L Rev 645, 651. 9 Indian Penal Code 1860 (IPC), s 306 provides that if any person commits suicide, then whoever abets the commission of such suicide, shall be punished with imprisonment for up to ten years, and shall also be liable to fine. S 309 of the IPC further penalises any person who attempts to commit suicide and does any act towards the commission of such offence. 10 P Rathinam v Union of India AIR 1994 SC 1844 (Supreme Court of India). 11 ibid [31]. 12 ibid. 13 ibid [35].

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However, this pronouncement was promptly overruled by a larger Bench of five judges in Gian Kaur.14 The Court adopted a narrower reading of Article 21 and held that by no stretch of imagination could the ‘extinction of life’ be read to be included in a provision guaranteeing the ‘protection of life’. Emphasising the principle of the ‘sanctity of life’, it held that suicide is an unnatural termination or extinction of life, and therefore, incompatible and inconsistent with the concept of ‘right to life’.15 Interestingly, though, the Court in Gian Kaur seemed amenable to an exception being made for euthanasia in cases of patients in a condition of PVS. It noted that a right to life, including the right to live with human dignity, would also include the right to a dignified life up to the point of death, thereby including a dignified procedure of death. Hence, it may encompass the ‘right of a dying man to also die with dignity when his life is ebbing out’.16 The reasoning of the Court was as follows: This category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced.17 One may argue that such a sweeping endorsement of a dignified death in PVS cases could countenance even active euthanasia, whose supporters would claim that it merely hastens a death caused by the underlying medical condition. Nonetheless, the laws criminalising suicide in general have remained intact after the Gian Kaur verdict.

II. THE ARUNA CASE The facts of the Aruna case involved a Writ Petition filed by a journalist claiming to be Aruna’s ‘next friend’ under Article 32 of the Constitution of India (which empowers individuals to directly approach the Supreme Court, in case of the violation of a Fundamental Right).18 Aruna Ramachandra Shanbaug was a staff nurse working in King Edward Memorial Hospital, Mumbai (the Hospital). On 27 November 1973, she was sexually assaulted. Her assailant simultaneously strangulated 14 15 16 17 18

Gian Kaur v State of Punjab AIR 1996 SC 1257 (Supreme Court of India). ibid [22]. ibid. ibid [25]. Constitution of India 1950, Part III. This Part contains the Fundamental Rights guaranteed by the Indian Constitution.

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her with a dog chain, due to which the supply of oxygen to her brain was disrupted. She also sustained a brain stem contusion injury with an associated cervical cord injury. It was alleged by the Petitioner that 38 years hence, Aruna was about 60 years of age, and in a Persistent Vegetative State (PVS) with no state of awareness, and a virtually dead brain. The Writ Petition accordingly sought a direction from the Supreme Court to the effect that the Respondent (the Dean of the Hospital) be directed to stop feeding Aruna, in order to enable her to die peacefully. Thus, this case raised for the first time in the Indian Supreme Court the same question that English courts grappled with in the Bland 19 decision: in what circumstances, if any, can a doctor lawfully discontinue life-sustaining treatment (including nutrition and hydration) without which the patient will die? On 24 January 2011, the Court appointed a team of three distinguished doctors to examine Aruna. The medical team concluded that Aruna was neither brain dead,20 nor in a coma.21 She was diagnosed with ‘non-progressive but irreversible brain damage secondary to hypoxic-ischemic brain injury consistent with the known effects of strangulation’.22 She thus met the key criteria for being in a PVS. PVS is defined as a clinical condition of unawareness of self and environment, in which the patient breathes spontaneously, has a stable circulation, and shows cycles of eye closure and opening which may simulate sleep and waking.23 It was finally concluded that presently there was no treatment available for the brain damage she had sustained. In a rather myopic reading of Gian Kaur – in light of the observations therein pertaining to PVS cases – the Court stated that it could have cursorily dismissed the Writ Petition for lack of a violation of a fundamental right, since there was no constitutional right to die.24 Nonetheless, in view of the ‘importance of the issues’, the Court decided to delve into the merits of the case. Conscious of the Herculean nature of its task, it compared itself to ‘a ship in an uncharted sea’,25 and explicitly sought guidance from legislation and judicial pronouncements in foreign countries, in particular the UK and the USA. Three crucial 19 20

21

22 23 24 25

Airedale NHS Trust v Bland [1993] AC 789 (HL). Brain death was defined to mean a state of prolonged irreversible cessation of all brain activity, including lower brain stem function with the complete absence of voluntary movements, responses to stimuli, brain stem reflexes, and spontaneous respirations. See n 6 [9]. Patients in a coma were defined as having undergone a complete failure of the arousal system with no spontaneous eye opening, and were unable to be awakened by application of vigorous sensory stimulation. See ibid [9]. ibid. ibid. ibid [4]. ibid [2].

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issues in Indian medical jurisprudence were identified and tackled by the Court.

A. When is a person legally ‘dead’? Though it started off by making a needlessly controversial statement to the effect that ‘one is one’s brain’,26 the Court endeavoured to bring some clarity to the issue of when a person can be legally considered ‘dead’ under Indian law. The historical evolution of the understanding of death from a cardio-pulmonary perspective to today’s brain-centric definitions need not detain us here. What is notable is that the Court appeared to implicitly recognise that the meaning of ‘death’ may need to be determined differently, depending upon the contextual purpose.27 It cited with seeming approval the definition in the American Uniform Determination of Death Act 1980, according to which an individual who ‘sustain[s] irreversible cessation of all functions of the entire brain, including the brain stem, is dead’.28 This stage, according to the Court, was reached at a situation where not only consciousness, but every other aspect of life regulated from the brain could no longer be so regulated. Based on this assessment, the Court held that Aruna was certainly not already legally ‘dead’, but was in a PVS. Thus, it became imperative for the Court to delineate the essential pre-requisites for determining whether the life of an incompetent person who was not legally ‘dead’ could permissibly be ended. These were identified as the following: a. When a person is only kept alive mechanically, i.e. when she has not only lost consciousness, but is also only able to sustain involuntary functioning through advanced medical technology, such as the use of heart-lung machines, medical ventilators, etc.; and b. When there is no plausible possibility of the person ever being able to come out of this stage, i.e. the condition is irreversible.29

26

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28 29

ibid [106]. Neuro-reductionism has been challenged in recent times, and it has been cogently argued that the mind emerges from, and is shaped by, interactions among the brain, body, and environment. See W Glannon, ‘Our Brains Are Not Us’ (2009) 23 Bioethics 321. It is now being argued that a single definition of death in the presence of medical intervention is impossible and perhaps undesirable. See JJW Herring and PL Chau, ‘The Meaning of Death’ in B Brooks-Gordon, F Ebtehaj, M Johnson and M Richards (eds), Death Rites and Rights (Hart Publishing 2007). Uniform Determination of Death Act, 1980 (USA), s 1. (n 6) [117].

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B. ‘Best Interests’ versus ‘Substituted Judgment’ Aruna’s case was one of ‘non-voluntary passive euthanasia’ since she was not mentally competent to give her consent.30 Thus, the question of what standard should be used to determine the apposite course of action was crucial. The Court referred to both the British and American approaches. Under the American ‘substituted judgment’ test, as articulated in Cruzan,31 it is necessary to prove by clear and convincing evidence that the incompetent person had wanted, while competent, withdrawal of life support treatment in such an eventuality. This was contrasted with the principle of the ‘best interests of the patient’ laid down by the UK House of Lords in Bland.32 The Court cited Lord Goff of Chievely in Bland as authority for the proposition that the crux of the test was not whether it was in the best interests of the patient that she should die, but whether it is in her best interests that her life should be prolonged by the continuance of medical treatment or care.33 The Court eschewed the ‘substituted judgment’ test in Aruna, by ‘differentiating’ Cruzan on the basis that there was no statute in India comparable to the one in Missouri that mandated ‘clear and convincing evidence that while the patient was competent she had desired that if she becomes incompetent and in a PVS her life support should be withdrawn’.34 In any case, it may be submitted that the Cruzan test would be singularly unhelpful in Aruna, as the Court simply had no barometer to gauge what her views on the issue would have been. She had been in PVS for 38 years, and there did not appear to be any indication that she had ever reflected on this issue. Her family and relatives had abandoned her, and had even refused to attend the proceedings in Court.35 There also appears to have been some concern on the Court’s part36 about maintaining a degree of objectivity in the decision-making process, by insulating it to a certain extent from unscrupulous friends and relatives who might stand to gain from the patient’s death. In such a scenario, the ‘best interests test’ was probably seen as a safer bet. The responsibility for determining what course was in the patient’s

30 31 32 33 34 35

36

ibid [53]. Cruzan v Director, MDH 497 US 261 (1990) (Supreme Court of the United States). n 19. n 6 [69]. ibid [96]. N Goswami, ‘I don’t want to see her but I want her to live – sister’ (3 December 2011) ,http://www.themedguru.com/20110312/newsfeature/idont-want-see-aruna-anymore-want-her-live-sister-86144006.html. accessed 20 June 2011. n 6 [127].

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best interests was apportioned to the Court, as parens patriae; however, the wishes of close relatives and the next friend, as well as the opinion of medical practitioners were to be given ‘due weight’.37

C. The Active/Passive Dichotomy The Court based the crux of its decision on the much-vaunted distinction between ‘active’ and ‘passive’ euthanasia. This distinction is often couched in terms of a dichotomy between ‘killing’ and ‘letting die’, which stipulates that it is morally wrong to intentionally take a life but permissible to allow the inevitable to happen by withdrawing or withholding treatment.38 Thus, active euthanasia was deemed illegal and a crime in India, punishable as murder under section 302 of the Indian Penal Code, 1860 (IPC); or at the very least as culpable homicide not amounting under section 304 of the IPC.39 On the other hand, passively permitting nature to take its course by withdrawing life support was an ‘omission’,40 and hence not a crime. The moral validity of the active-passive distinction, as also the exculpation of ‘omissions’, has been severely criticised in academic circles.41 As Jackson points out,42 this distinction can produce insidious results, by ensuring that only certain types of death – namely those achieved by suffocation, dehydration, starvation, and infection, through the withdrawal or withholding of, respectively, ventilation, ANH and antibiotics—can lawfully be brought about. Furthermore, it prohibits doctors from acting to achieve that end quickly, and more humanely, by the administration of a single lethal injection. Lord BrowneWilkinson lamented this paradox in Bland in the following words: How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question.43 37 38 39 40 41 42 43

ibid [77]. SG Potts, ‘Looking for the Exit Door: Killing and Caring in Modern Medicine’ (1988) 25 Houston L Rev 493, 500. n 6 [41]. ibid [28]. See eg J Coggon, ‘On Acts, Omissions and Responsibility’ (2008) 34 Medical Ethics 576. E Jackon, ‘Secularism, Sanctity and the Wrongness of Killing’ (2008) 3 Biosocieties 125. (n 19) 885.

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In Aruna, the Court made precious little attempt to engage with the fallacious moral contours of the active – passive distinction. There are thus strong grounds to believe that the active– passive distinction is not grounded so much in morality as in ‘reasons of policy’, to borrow from Lord Goff of Chievely’s judgment in Bland.44 In Aruna, concern for the actor’s culpability under the IPC as the cause of death appears to be the animating force for adopting the active – passive distinction. A supplementary factor may be the Court’s desire to avoid accusations of overstepping its boundaries, and relegating a volatile matter entailing a positive act designed to kill, to the popularly elected Legislature’s domain. Thus, the Court stated the law on the subject to be as follows (until such time as Parliament passes a law on the subject):45 (i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken in the best interest of the patient. (ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court46 concerned. Nonetheless, despite numerous paeans sung to the patient’s best interests, when the Court finally delivered its judgment regarding Aruna’s individual case,47 it appeared to yield entirely to the wishes of the Hospital staff, which had been tending to her for the past 38 years. Since the staff had grown attached to Aruna and were happy to continue taking care of her, they wanted her to be allowed to live. The Court merely acquiesced to their arguably well-intentioned demands, without considering whether the continued treatment was in fact going to provide any concrete benefit to Aruna. For obvious reasons, according such latitude to the wishes of caregivers or guardians can have dangerous 44 45 46

47

ibid 866. ibid [126]. Constitution of India 1950, Art 226 provides that every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. See n 6 [126]. See also J Kothari, ‘Who Decides’ The Hindu (Chennai, 20 March 2011) ,http://www.hindu.com/mag/2011/03/20/stories/20110320 50340600.htm. accessed 19 June 2011.

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repercussions in cases where caring for the patient is seen as personally or financially burdensome.

III. WHICH WAY FORWARD? In what follows, I attempt to identify certain socio-economic concerns that must necessarily be factored into any discourse on euthanasia in India. Failure to do so would engender a debate, and possibly legislation, that is both ‘incomplete’ and ‘elitist’.48 An individual in traditional Indian society is deeply rooted in the family and community, and in the philosophical sense, in the country, humanity, and the cosmos. In general, the family is the most crucial unit through which this sense of connectedness is mediated.49 Thus, the pivotal role of the family in decision-making processes involving healthcare must be recognised.50 Limiting an individual within the strict confines of ego-centric rights will thus be a narrow-minded approach that is not attuned to the matrix of relationships in which the individual is embedded.51 Advance directives being virtually non-existent in India, the family becomes the locus of the decision-making process, more so when the patient is incompetent.52 Social commentators contend that in many cases, euthanasia is not just about a patient’s dignity, but is also a financial issue, and families may be compelled to ‘choose’ the death of their loved ones because of financial constraints.53 In the absence of adequate medical insurance, specialised treatments like ventilator support, kidney dialysis, and expensive lifesaving drugs administered in private hospitals can turn middle-class families into virtual paupers. Poorly equipped government hospitals simply do not have enough life-support machines compared to the number of patients who need them.54 The stark truth is that economic cost of treatment is likely to be the most pressing 48

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S Nagral, ‘Euthanasia: Cost Factor is a Worry’ The Times of India (Mumbai, 2011) ,http://articles.timesofindia.indiatimes.com/2011-03-13/all-thatmatters/28685344_1_passive-euthanasia-patient-legal-sanction. accessed 19 June 2011. S Chattopadhyay and A Simon, ‘East meets West: Cross-cultural Perspective In End-Of-Life Decision Making from Indian and German Viewpoints’ (2008) 11 Medicine Health Care and Philosophy 165. See eg O Deshpande, MR Reid and AS Rao, ‘Attitudes of Asian-Indian Hindus Toward End-of-Life Care’ (2005) 53 J Am Geriatr Soc 131. (n 50) 170. ibid 171. ‘Euthanasia Case Sparks Public Debate in India’ (4 May 2011) ,http://www. globalpressinstitute.org/global-news/asia/india/euthanasia-case-sparks-publicdebate-india?page=3. accessed 19 June 2011. S Vasudev, ‘The Last Right’ India Today (Mumbai, 15 April 2002) ,http:// www.indiatoday.com/itoday/20020415/society.shtml. accessed 15 June 2011.

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consideration determining the decision of continuation/withdrawal of life-sustaining treatment in India.55 This also leads to the inevitable possibility of a comatose patient’s family and relatives potentially exploiting the euthanasia law to benefit from a premature death, by way of inheritance, etc.56 Soon after the Aruna judgment was rendered, the case of two impoverished brothers inflicted with muscular dystrophy hit the headlines.57 Their parents cannot afford to get them treated, nor can they bear to see the pain and discomfort their partially paralysed children are suffering. They are now contending that if the State will not permit them to seek euthanasia for their children, it must finance the costs of the medical treatment. These are unsavoury yet indispensable questions that demand a considered solution: if a patient or her family simply cannot pay for medical treatment, can they not demand free or subsidised medical treatment in lieu of their request for mercy-killing being granted? This case also exemplifies the somewhat futile nature of the debate in a country where medical treatment, let alone palliative or hospice care, is inaccessible to a wide segment of the populace.58 Given the enormous scarcity of resources,59 some may also proffer the argument that the money spent in keeping patients artificially alive would be more optimally expended on treating cases in which hope of recovery still exists. Many commentators have pointed out that the level of treatment and care received by Aruna is the rare exception, not the rule.60 Most hospitals are compelled to turn such patients away.61 In fact, even in Aruna’s case, the Bombay Municipal Corporation tried to shift Aruna outside the Hospital in order to free the bed she has been

55 56

57

58

59

60

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(n 50) 171. S Shrivastava, ‘Voluntary Euthanasia: Suicide and Mercy Killing A Global Battle Of Law’ (17 December 2007) ,http://www.merinews.com/article/ should-euthanasia-be-legalized-in-india/128617.shtml. accessed 15 June 2011. ‘No to Euthanasia, Parents Now Seek Help for Kids’ (19 March 2011) ,http:// www.sify.com/news/no-to-euthanasia-parents-now-seek-help-for-kids -newsnational-ldtaOvgdhaj.html. accessed 17 June 2011. P Prakash, ‘For Dignity in Death’ The Hindu (Chennai, 19 March 2011) ,www.thehindu.com/todays-paper/tp-features/.../article1554935.ece. accessed 20 March 2011. See generally M Magnier, ‘India’s Supreme Court lays out Euthanasia Guidelines’ Montreal Gazette (Montreal, 9 March 2011) ,http://www. montrealgazette.com/life/India+Supreme+Court+lays+euthanasia+ guidelines/4398045/story.html#ixzz1GfON9CPc. accessed 15 June 2011. Mahesh Vijapurkar, ‘Why Talk of Euthanasia is Pointless in India’ (17 March 2011) ,http://www.rediff.com/news/column/why-talk-of-euthanasia-ispointless-in-india/20110317.htm. accessed 19 June 2011. n 59.

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occupying; however, this was met with furious protests from the nursing staff.62 Nonetheless, it must be emphasised here that a blanket prohibition on euthanasia is not feasible in India either. It is an open secret that various forms of mercy-killing are widely prevalent.63 A case that elicited considerable media attention was that of 59-year-old Neena Bonarji, an international bridge player who had been suffering from progressive lung disease for three years. She had instructed her daughter to switch off the ventilator when she slipped to 100 per cent supplementary support. Her daughter openly acknowledges that she carried out her mother’s wishes, and within an hour, Bonarji passed away.64 As Roger Magnusson’s study of the ‘euthanasia underground’65 reveals, covert euthanasia spawns an all-pervasive ‘culture of deception’, which encompasses the methods used to procure drugs, the planning of the death itself, and the disposal of the body and associated paperwork. Such an atmosphere renders the vulnerable patient completely bereft of any protective checks and balances. Regulation and augmentation of medical services, rather than empty rhetoric, will need to be the new mantra. Sushila Rao LLM candidate, Harvard Law School

62

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64 65

‘Aruna Shanbaug: Timeline’ The Times of India (Mumbai, 8 March 2011) ,http://articles.timesofindia.indiatimes.com/2011-03-08/mumbai/28668057 _1_aruna-shanbaug-sc-reserves-judgment-kem. accessed 15 June 2011. SP Nayak, ‘Legalise Mercy Killing, Law Commission Tells Government’ (4 July 2008) ,http://ibnlive.in.com/news/legalise-mercy-killing-lawcommission-tells-govt/68306-3.html. accessed 19 June 2011. n 54. R Magnusson, ‘“Underground Euthanasia” and the Harm Minimization Debate’ (2004) 32 JLME 486.

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COMMENTARY ONLY SKIN DEEP? THE HARM OF BEING BORN A DIFFERENT COLOUR TO ONE’S PARENTS A (a minor) and B (a minor) by C (their mother and next friend) v A Health and Social Services Trust [2010] NIQB 108; [2011] NICA 28 The Facts and Legal Issues The complainants, A and B, were twins born as a result of IVF treatment involving donated sperm provided by the Defendant Trust to their mother.1 While the children’s parents were white, the twins had darker skin than either of them and different skin colour to each other, a difference that had become more marked as they had grown older. It transpired that while the Trust’s normal practice would be to request only sperm from ‘Caucasian’ or ‘white’ donors for a white couple, in this instance sperm from a ‘Caucasian (Cape Coloured)’ donor had mistakenly been used.2 The implication of this error was that while the sperm donor was white, there was no guarantee that his genetic children would also be so. By the time the action reached the courts, the twins were eleven years old. The Trust admitted liability to the parents.3 However, it opposed the action brought on behalf of the twins, in which they alleged three broad 1 2

3

Facts are taken from the High Court judgment, with the exception of the twins’ age, which was revealed by the Court of Appeal, at para 4. The Cape Coloured community is the predominant grouping (numbering around four million), in the Cape Province in South Africa. It arose primarily from unions between white men and slave women, or slave men and Khoekhoe or San women. The slaves were from Madagascar, the Malayan archipelago, Sri Lanka, and India. The classification is itself a controversial product of the Apartheid era, where it was used to distinguish people of mixed ancestry from paler South Africans of European descent, and the darker black South Africans. It is normal for one Cape Coloured family to include a range of different skin colours, hair textures, and other racial markers. The parents’ claim is highly tenuous in the light of recent jurisprudence regarding unwanted pregnancy. Rees v Darlington Memorial Hospital NHS Trust [2003] HL, 52 foresees the possibility of a ‘conventional award’ to recognise the loss of reproductive autonomy experienced by a woman whose decision to have no children was thwarted but A and B concerned a pregnancy which was so profoundly wanted that it was achieved via professional assistance. Further, it seems improbable that the courts would countenance an extension of the compensation foreseen in Rees, where the mother was denied ‘the opportunity to live her life in the way that she wished and planned’, to the loss of autonomy to choose certain kinds of characteristics of one’s children (here, their skin colour/genetic provenance), notwithstanding the suffering described in the

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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kinds of harm. First, because of their colour, the twins had become ‘the subject of derogatory comment and hurtful name calling from other children, causing emotional upset’. Secondly, they had been the subject of adverse and hurtful comment about the colour of their skin and their physical dissimilarity from each other, on the one hand, and between themselves and their parents on the other. This had led them to question their parents about whether they were adopted. Thirdly, should either twin go on to have a child with a partner of mixed race, any child born to them was likely to have a different skin colour from either parent.4 The court proceedings raised, by common agreement of the parties, a number of legal issues: first, the existence and nature of a duty of care owed to A and B at the time of the selection and use of the sperm; secondly, if such a duty was owed, whether the complainants had suffered any legally recognisable injury as a result of any alleged breach of it; thirdly, whether it would be contrary to public policy to provide compensation in such circumstances; and, finally, how any such damages might be calculated. Below, having first located the case within the relevant law, I consider the courts’ response to these issues, before going on to reflect on the way in which ‘harm’ was considered in this case.

The Relevant Law Given that the action was brought by the twins in their own right, this is clearly an action for wrongful life and, indeed, the list of issues set out above closely mirrors those identified in the leading wrongful life judgment, McKay v Essex Area Health Authority.5 In the action for wrongful life, the child alleges that, but for the defendant’s negligence, he or she would not have been born and, hence, the harm from which he or she now suffers would have been averted: here, the twins’ claim must logically be that the Trust should have used other (‘white’) sperm with the result that other, ‘white’ children would have been born. Intriguingly, however, Gillen J’s judgement refers neither to McKay, nor to the only statutory provision for wrongful life claims,6 nor indeed to any of the subsequent, substantial academic literature on wrongful life

4

5 6

twins’ statement of claim. One might speculate that the Trust’s offer of compensation here reflects a desire to avoid the costs of litigation, any negative publicity attendant on it, and a well-publicised precedent for other couples similarly affected. HC, para 5. However, the Trust notes (in a tone of intended reassurance?) that should A and B go onto have their own child with a partner who is ‘white and of white ancestry . . . then it is highly unlikely that any child born would have skin darker than either parent’. HC, para 3. [1982] QB 1166; [1982] 2 All ER 771 (CA). S 1A, Congenital Disabilities (Civil Liability) Act (1976).

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actions.7 He instead considers the more recent case law on the rather different action for wrongful conception (which is brought on behalf of the mother in her own right for the harm caused to her by the occurrence of a pregnancy that she had sought to avoid),8 unsurprisingly finding it difficult to extend that line of authority to support the present claim. Notwithstanding the fact that he considers a different body of jurisprudence than might have been expected, however, Gillen J delivers a judgment that will be easily anticipated by those acquainted with the relevant law: he finds that the Trust has no case to answer. Given the similarity in the legal issues raised by the two cases, it is worth briefly reviewing McKay before turning to look in more detail at the reasoning in A & B. McKay concerned a negligent failure to diagnose a pregnant woman as having been affected by rubella. Unaware of her infection, Mrs McKay continued with her pregnancy and eventually gave birth to a child, Mary. Mary’s subsequent claim for compensation for entry into a life stricken with a highly debilitating range of disabilities was unanimously rejected by the Court of Appeal. That Court held that the doctor did not owe a duty to abort the unborn child, as imposing such a duty would be contrary to public policy, making an inroad into the sanctity of life and sending out the message that the disabled child was ‘not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving’.9 Secondly, the Court refused to recognise being born as constituting a legal harm. And, thirdly, the Court reasoned that the only loss for which the doctor might be held liable was the difference between Mary’s condition as a result of being born alive and injured and her condition if her embryonic life had been ended before her life in the world had begun, yet this loss was unquantifiable: ‘to compare the state of the plaintiff with nonexistence, of which the court can know nothing [is] an impossible task’.10 The Court of Appeal’s decision in McKay has been subject to significant academic criticism, taking issue with its reasoning on each of these points and, indeed, with the very characterisation that it involved a claim for ‘wrongful life’.11 However, it remains unchallenged in the 7

For a small taste, see: T Weir ‘Wrongful Life – Nipped in the Bud’ (1982) 41 CLJ 225; and R Lee ‘To Be or Not to Be: Is that the Question?’ in R Lee and D Morgan (eds) Birthrights: Law and Ethics at the Beginning of Life (1990). 8 See generally, N Priaulx, The Harm Paradox: Tort Law and the Unwanted Child in an Era of Choice (Routledge 2007). 9 McKay, at 1181. 10 Ibid, at 1192–3. 11 See JK Mason, The Troubled Pregnancy: Legal Rights and Wrongs in Reproduction (CUP 2007) at 189 and H Teff ‘The Action for “Wrongful Life” in England and the United States’ (1985) 34 ICLQ 423 at 425 on this point. Generally, see further Weir, Lee, above n 7.

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courts and thus provides weighty authority against the action brought by A and B: if awarding damages to Mary McKay would send out the message that the disabled child was so lacking in value as to be not worth preserving, what message would be sent out by awarding compensation for ‘insufficiently white’ racial origins or ( perhaps less provocatively?) for skin colour which does not reflect that of your social parents? And, by analogy with the reasoning in McKay, how could the Court accept a claim that it is better not to be born at all than it is to be born non-white to white parents (even taking account of the likelihood of experiencing racism)? With that brief rehearsal of the decision in McKay in place, let us return to the judgment in A and B where, notwithstanding his failure to consider McKay, Gillen J reaches the same conclusion.

The Courts’ Reasoning Duty of Care First, Gillen J reasons that A and B were not owed a duty of care, as their claim fails to meet the criteria of fairness, justice, and reasonableness laid down in Caparo. 12 To hold otherwise would ‘accord ill with the value society attaches to children . . . who have been born healthy and normal’.13 Moreover, he reasons, the sequence of events makes finding a duty difficult as to find in favour of the twins would require finding a duty to ‘cells’ that harvested eggs would not be fertilised with ‘inappropriate donor sperm’.14 If such a duty is to be found, he suggests, that is a nettle best grasped by Parliament.15 At this point, Gillen J’s failure to consider the existing statutory provision for a wrongful life action is particularly surprising, as it might be suggested that Parliament had grasped precisely this nettle in 1990, when revising the Congenital Disabilities (Civil) Liability Act 1976. The new section 1A provided a right of action for a child born disabled as a result of negligence during a parent’s infertility treatment services, including negligent selection of embryos or gametes.16 This provision does not assist A and 12 13 14 15

16

Caparo Industries Plc v Dickman (1990) 2 AC 605. HC, para 37. HC, para 14. ‘It is for Parliament to grasp the nettle of whether there ought to be a duty of care owed in the circumstances postulated in this case. For my own part, sitting as a judge at first instance, I do not believe that it is appropriate for a judge to stretch the common law principle inherent in Burton to embrace human cells as conferring the relevant status for a duty of care to be owed.’ HC, para 15. Intriguingly, while ignoring s 1A, Gillen J does consider the less obviously relevant s 1 of the same Act, concluding, unsurprisingly, that liability for an action for injury suffered in utero cannot be extended to this set of facts.

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B, who do not suffer from a ‘disability’.17 It does, however, present highly apposite guidance from Parliament as to how to conceive of a duty of care in these circumstances, suggesting that a duty might be owed not to unfertilised cells but to the future child, who would at birth acquire rights with regard to pre-conceptual negligent acts.18 On the other hand, the fact that Parliament had considered the question of negligent selection of gametes or embryos in 1990 and provided for legal liability only in those cases where a child is born disabled adds further significant weight to the conclusion that the Trust has no case to answer on these facts.

Compensatable Harm Secondly, Gillen J finds that, even if a duty were owed, the twins have not suffered from a legally compensatable harm: In a modern, civilised society the colour of their skin – no more than the colour of their eyes or their hair or their intelligence or their height – cannot and should not count as connoting some damage to them. To hold otherwise would not only be adverse to the self-esteem of the children themselves but anathema to the contemporary views of right thinking people.19 The presence of persons sufficiently misguided and cruel as to issue racist comments directed to these children is no basis for a conclusion that they are somehow damaged.20 While the action thus also fails on this second ground, rendering any consideration of the two remaining issues of public policy and the calculation of damages unnecessary, as McKay demonstrates, the twins would also have faced very significant hurdles with regard to each. The twins’ subsequent appeal was swiftly dismissed, with the Northern Irish Court of Appeal also emphasising that no legally compensatable harm has been suffered. The twins: . . . have a normal and healthy existence having been born successfully and without mishap . . . Having a different skin colour from 17

18

19 20

S 4(1) defines ‘disabled’ as referring to ‘any deformity, disease or abnormality, including predisposition (whether or not susceptible of immediate prognosis) to physical or mental defect in the future’. It has been suggested that s 1A might also cast some doubt on the continued authority of McKay, in that it reveals Parliament’s intention that an action for wrongful life should be possible, in certain circumstances, notwithstanding the problems inherent in calculating damages: see A Grubb, Kennedy and Grubb: Medical Law (3rd edn 2000) at 1552–3. HC, para 18. HC, para 24.

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the majority of the surrounding population cannot sensibly be regarded as damage or disability just as the adoption of a child of a colour different from that of the adopting parents could not by any stretch of the imagination be described as subjecting the adopted children to some form of detriment, injury or damage.21 Before moving on to consider the courts’ discussion of harm in more detail, it is worth noting one final very striking omission from the legal reasoning in this case. While human rights norms have elsewhere emerged as central to the resolution of the complex dilemmas which have arisen in the context of assisted reproduction,22 they form no part of these judgments.

Discussion While the legal outcome of this case is entirely predictable in the light of McKay, the Northern Irish courts’ reasoning on the question of what should count as a legally compensatable harm nonetheless gives me pause for two reasons. First, is the suffering of the twins really so easily dismissed as the judgment suggests? And, secondly, if the issue of skin colour/racial origin is so insignificant, then why is racial matching treated as a widely accepted, routine practice in a context where other forms of selective reproduction have proved extremely controversial and, consequently, subject to tight regulation? Revisiting Harm Let us begin with the nature of the alleged harm. An immediately striking aspect of the High Court’s discussion of the harm suffered by the twins is that the word ‘race’ never features in any description of them.23 Rather, Gillen J repeatedly (twelve times) refers to their ‘skin colour’, at one point, directly analogising with other physical characteristics in order to emphasise its insignificance: In a modern civilised society the colour of their skin – no more than the colour of their eyes or their hair or their intelligence or their 21 22

23

CA, para 9. See for example, Rose v Secretary of State for Health [2002] EWHC 1593 (Admin) for some discussion of the significance of genetic links in the context of Art 8; and, more generally, Leeds v Mr A, Mrs A and Others [2003] EWCA 259 (QBD); and Evans v Amicus Healthcare Ltd [2003] EWHC 2161 (Fam), [2004] EWCA (Civ) 727. The only appearance of the term ‘race’ in the judgment is in two quoted passages (from the complainants’ statement of claim and a letter from the Trust) describing the likely outcome – with such outcome again expressed in terms of skin colour – if either twin should go on to have a child with a partner of ‘mixed race’.

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height – cannot and should not count as connoting some damage to them.24 [t]he children . . . have entered the rich tapestry of childhood where children of all colours, shapes and sizes must be afforded equality of opportunity free from the burdens of racial or ethnic discrimination. It would be contrary to the principles which underlie our multi-cultural society to suggest the genes they carry somehow render them “a victim” at the hands of the defendant.25 The effect of this description is to minimise the significance of the clinic’s mistake, reducing the alleged harm to irrelevant physical variation. Yet Gillen J’s evocation of a multi-cultural Northern Ireland must have rung very hollow to the complainants. Northern Ireland is over 99% white and suffers from significant levels of racism, disproportionately affecting children.26 While no great detail is given regarding the harm suffered by A and B beyond the rehearsal of the three heads of damages set out above, this evidence might suggest that their experience is unlikely to have been adequately captured by the passing reference to ‘racist comments’ and ‘boorish behaviour’ made by the courts.27 The discussion of the relevance attributed to race/skin colour in A and B also compares very interestingly with another well-known case where a ‘white’ egg was wrongly inseminated with ‘black’ sperm. In Leeds, a very senior family law judge suggested that the resulting children: . . . have been born children of mixed race by a mistake which cannot be rectified. Their biological mother and their biological father are not married and cannot marry. They may not be able during their childhood to form any relationship with their biological father. They have inherited two cultures but, in reality, can only gain real benefit from one during their childhood. Of all the parties who have undoubtedly suffered from this mistake, the twins, who at present know nothing of it, have had their human rights most obviously and seriously infringed.28 24 25 26

27 28

HC, para 18. HC, para 23. Only 0.2% of the population is of mixed race. See: Northern Ireland Census 2001 Key Statistics report: ,http://www.nisra.gov.uk/Census/2001% 20Census%20Results/Key%20Statistics/KeyStatisticstoOutputAreaLevel. html.; P Connolly (2002) ‘Race’ and Racism in Northern Ireland: A Review of the Research Evidence. ,http://www.ofmdfmni.gov.uk/racereview.pdf.; and N. Jarman (2010) ‘Victims and Perpetrators, Racism and Young People in Northern Ireland’ 9(2) Child Care in Practice 129. HC, para 24; CA, para 10. Leeds, above n 22 at [55].

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Here, Butler-Sloss P describes the Leeds twins as mixed-race (rather than talking just of skin colour), foregrounds the question of the children’s human rights, and, most significantly, talks of the twins as having inherited ‘culture’ from their genetic father.29 To highlight Gillen J’s starkly contrasting refusal to attribute any significance to race in this context is not defend Butler-Sloss P’s ideas on the genetic inheritability of culture.30 It is, however, to note the disparity between the significance attributed to racial/ethnic origins in the two cases, suggesting a certain judicial ambivalence regarding the appropriate weight to be given to questions of such origins. The juxtaposition of the two cases might also, perhaps, highlight the extent to which ideas of ‘race’ are deployed in support of broader political projects: while Gillen J is at pains to describe a vision of a ‘modern’, ‘civilised’ ‘multicultural’ Northern Ireland, Butler-Sloss P is concerned to bolster the significance of the role of the genetic father.31 Nor should questioning Gillen J’s failure to discuss ‘race’ be taken as swimming against the overwhelming evidence, advanced by both social scientists and geneticists, that ‘race is a social concept not a scientific one’.32 It is, however, to join critical race theorists in recognising that a social concept can lie at the root of real and significant harms: Though a social construction, race is real. Its reality lies in social practices, including beliefs in natural group divisions and their significance, not in the abstract “truth” of such beliefs. Recognizing the falsehood of physical conceptions of race cannot serve in and of itself to establish that race is unreal. Nor can it support without more the conclusion that racial rhetoric is inappropriate for discussing groups that have been racialized. The ‘reality’ encountered by such groups does not change in the least with the recognition that race is not biologically real.33 29

30 31

32

33

There is, of course, a rationale for this distinction in the different legal issues on which the two cases reached the courts and the fact that, in Leeds, the sperm had come from another patient rather than an anonymous donor. While legally highly important, these distinctions seem unlikely to affect the significance of race/ethnicity/skin colour in the eyes of the children in the two cases. See S Sheldon (2005) ‘Fragmenting Fatherhood: the Regulation of Reproductive Technologies’ 68(4) MLR 523 –53, for a critical reading of the judgment. See generally R Collier and S Sheldon, Fragmenting Fatherhood: a SocioLegal Study (Hart: 2008) for discussion of the increased focus on genetic links in grounding the rights and responsibilities of fatherhood. See Craig Venter, ‘New Ideas, New Fuels: Craig Venter at the Oxonian’ FORA.tv (3 November 2008) ,http://fora.tv/2008/07/30/New_Ideas_ New_Fuels_Craig_Venter_at_the_Oxonian#chapter_17.. Ian Haney Lopez (1997) ‘Race, Ethnicity, Erasure: the Salience of Race to LatCrit Theory’ 85 Cal L Rev 1143 at 1152.

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Some further insight into the ‘reality’ encountered by this particular family can be gleaned from a report of a similar case: Keith and Catherine Williams.34 It seems likely that Mrs Williams conceived using the same donor semen: the Belfast Hospital that treated them has admitted to using the same sperm for a number of white couples, apparently because the ‘Caucasian (Cape Coloured)’ label had not been well understood by a member of staff. The Williams family live in a small village in Northern Ireland and, at the time of the newspaper interview relied on here, had a thirteen-year-old daughter, Susan, and a ten-year-old son, Michael. While born over three years apart, the two children came from the same batch of embryos, created using Catherine’s eggs and donor sperm. Susan is darker skinned than either parent but is far lighter than her brother, rendering the initial error less obvious at the time of her birth. Michael, however, looks very different from his father. Mr Williams describes the consequences thus: I couldn’t love my children more than if I had fathered them myself . . . They are gorgeous kids and I’d rather die than not have them, but this mistake has devastated our family and almost destroyed our marriage. We can’t go out together because people openly stare at us. My wife has been asked if she’s had an affair with an Indian man on holiday. In public, she’ll shrug is off. But in private, she’s often in tears. When I take my son to football, I’ve heard other people say “Who’s that Brazilian boy?” I’m less upset for myself than I am for him . . . . . . As he’s growing older, he’s becoming more and more confused, and he’s suffered racial taunts in school, with other pupils asking: ‘Where’s your father from?’ He’s been called a “n****r” and a “P**i’. He can see I look completely different from him and knows something is wrong, but doesn’t know what. We live in a small community, which is predominantly white, so people notice and make assumptions, which is stressful and hurtful. Our lives have been ruined by this mistake.35 Mr Williams explains that they have stopped going out as a family and that he will no longer pick his son up from school. This painful description of their lives offers a very different picture from Gillen J’s image of 34

35

H Weathers, ‘Why am I dark, daddy? The white couple who had mixed race children after IVF blunder’ Daily Mail (13 June 2009). The Trust wrote to this couple in October 2003, a likely explanation being that they had written to all those treated with the same donor’s sperm, after being confronted by A and B’s parents. These are pseudonyms used by the newspaper. Ibid.

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happy multi-culturalism, where children ‘of all colours, shapes and sizes’ together enter ‘the rich tapestry of childhood’.

Racial Matching This description of the experience of the Williams family brings me onto my second point regarding harm: it is also noteworthy that the courts focused almost exclusively on the first harm alleged by the twins (racial abuse), ignoring their second complaint ( physical dissimilarity within the family).36 Yet this second kind of harm is clearly far more important to Keith Williams. He ‘couldn’t love his children more’ and gives no indication that he cares about any difference in race/ethnicity or, indeed, that he attaches any personal significance to their appearance. What he cares about is the fact that his son looks different from him and that this calls into question his wife’s fidelity and his own paternity. In sum, the clinic’s mistake has undermined their ability to ‘pass’ as a family in the small, overwhelmingly white village in which they live. Williams describes another instance where: Once, we all went out to an Indian restaurant and the waiter came up to us and said “A table for three?” and when I said “No, four”, he looked confused. Then he pointed to me, my wife and my daughter and, when he came to my son, asked: “Who’s he?” He couldn’t believe he was with us. The claim grounded in physical dissimilarity reflects an interesting tension in the law. Racial matching is a form of selective reproduction,37 intended to allow families to ‘pass’ and thus maintain secrecy regarding the circumstances of the conception. As such, it sits uneasily with modern trends in the regulation of donor insemination, which have been firmly towards attempting to de-stigmatise infertility and require greater openness in gamete donation (with the removal of donor anonymity and legal measures in place to encourage parents to tell their children how they were conceived).38 Particular concerns have been expressed regarding practices which collude with a parental refusal to inform their children regarding the circumstances of their conception. While the focus in recent years has tended to be heavily on the 36 37

38

The third complaint also passes without discussion. By ‘selective reproduction’, I mean an ‘attempt to create one possible future child rather than a different possible future child . . . normally [because] one possible future child is, in some way, more desirable than the alternatives’. See S Wilkinson (2010) Choosing Tomorrow’s Children, at 2. There is also an interesting set of questions concerning what distinguishes this form of routinely practiced selective reproduction from other forms, which have proved far more controversial, and often excited stringent regulation: see further, ibid.

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naming of a non-biological parent on a birth certificate,39 racial matching is another such practice. Of course, there is clear blue water between encouraging greater openness to donor conceived children and forcibly ‘outing’ (some) parents’ use of donated gametes through refusing to match them with a donor with broadly similar physical characteristics. In other words, even if it is right to take seriously a commitment to end secrecy around gamete donation, would it be reasonable to expect particular families to be at the vanguard of that change?40 Yet, if this is true, is the law then too swift to discount the possibility that the twins (and their parents) might have suffered a real harm on this set of facts? If racial matching is so routinely practiced and readily accepted as supporting a legitimate parental expectation, it seems far from obvious that no harm is suffered when this expectation is negligently undermined. It is in disentangling some of these fundamental ethical questions and thinking through the public policy implications of this action that, it seems to me, some consideration of human rights of the parties would have been of considerable assistance.

Conclusion Not all social harms can, or should, be recognised as legal harms and there are powerful social, ethical, and jurisprudential factors weighing heavily against a judgment in favour of the twins on this set of facts. Moreover, the outcome in A & B was little short of inevitable in the light of McKay. Nonetheless, the manner of this case’s resolution leaves much to be desired. The case undoubtedly raises complex issues but a proper consideration of them is not furthered by judicial refusal fully to engage with the harm experienced by the parties before it. The courts’ reasoning in A & B is most noteworthy for what it fails to consider: no mention is made of some highly relevant law, including the implications of human rights norms, and empirical evidence regarding demography and racism is ignored. In my view, a fuller consideration of these factors and, in particular, Article 8 of the European Convention on Human Rights, might have resulted in a rather more nuanced and convincing analysis of the harm which the twins had suffered, the social and ethical issues to be 39

40

See generally, J McCandless and S Sheldon, ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Model’ (2010) 73(2) MLR 175–207; A Bainham, ‘What is the Point of Birth Registration?’ (2008) 20 CFLQ 449. I’m grateful to Jo Miles, who made this point to me in these terms at the annual Child & Family Law Quarterly Seminar (London, 4 July 2011).

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balanced in this case and the public policy implications of recognising their claim. The outcome would almost certainly not have been any different but, with respect, the route by which that outcome is reached also matters. Sally Sheldon Kent Law School

Medical Law Review, 19, Autumn 2011, pp. 669–674

BOOK REVIEW L. GOSTIN, P. BARTLETT, P. FENNELL, J. MCHALE and R. MACKAY (eds), Principles of Mental Health Law and Policy, Oxford University Press, Oxford, 2010, hardback, 1004 pp., £195.

Mental health lawyers occupy a unique position at the interface of law and psychiatry. While dealing with the usual ‘lawyerly’ pursuits of statutory interpretation, analysis of case law, and preparing advice, they also share an intensely practical field with psychiatrists and associated professionals. As a consequence of the judicial regulation and oversight of mental health practice, neither the legal nor the practical aspects of lawyers’ roles could exist without the other. Despite this mutually self-supporting dynamic, mental health literature tends to be polarised between the legal and practical realms. On the one side, publications such as this journal, textbooks,1 and practitioner texts2 set out to communicate, analyse and criticise the ‘black letter’ legal principles and policy. On the other side, publications for practitioners, such as the Mental Health Act Code of Practice,3 offer a pared down guide to the mechanics of the law. Principles of Mental Health Law and Policy bridges the gap between the legal and clinical realms. It provides those working at the medico-legal interface with a single guide combining theory and practice. Indeed, the book’s preface reveals that its intended audience is ‘diverse and robust’, reaching beyond lawyers and scholars to cater for ‘practitioners and policy-makers’ too ( p. vii). The book describes its goals as ‘ambitious and diverse’; it is both an expression of legal doctrine and a reflection of normative discourse ( p. vii). By any measure, this ‘all things to all people’ objective represents a bold challenge; yet, the book’s contributors meet it with aplomb. Despite the initial promise of radical reform,4 the Mental Health Act 2007 (2007 Act) made relatively modest amendments to mental health law and practice. Yet, even these conservative changes have made a big impact in practice. Principles of Mental Health Law and Policy provides a snapshot of the legal and political landscape in the post-2007 Act era. While the contributors account for the 2007 Act’s most significant changes, for example, the expansion and simplification of the definition of mental disorder,5 the amendments to the 1

2

3 4 5

See, eg, J Herring, Medical Law and Ethics (3rd edn, Oxford University Press, Oxford 2010), ch 10; P Bartlett and R Sandland, Mental Health Law: Policy and Practice (2nd edn, Oxford University Press, Oxford 2003); N Glover-Thomas, Reconstructing Mental Health Law and Policy (Butterworths, London 2002). See, eg, A Dugdale and MA Jones (eds), Clerk and Lindsell on Torts (20th edn, Sweet & Maxwell, London 2010); Blackstone’s Criminal Practice 2011 (Oxford University Press, Oxford 2010). Department of Health, Code of Practice Mental Health Act 1983 (TSO, London 2008). See, eg, Department of Health (DH), Review of the Mental Health Act 1983: Report of the Expert Committee (DH, London 1999); Mental Health Bills 2002 and 2004. P Fennell, ‘The Statutory Definition of Mental Disorder and the Availability of Appropriate Treatment’, ch 2.

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]

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nearest relative provisions,6 and the introduction of the supervised community treatment regime,7 they also discuss some of the continuing challenges in mental health practice. For example, Fennell8 and Bartlett9 contribute chapters on the Mental Capacity Act 2005 (MCA 2005), whose relationship with the Mental Health Acts continues to confuse decision-makers who often do not appreciate the distinction between the two statutes. McHale’s chapter on privacy discusses the impact of the rise of multi-disciplinary decision-making on patient confidentiality,10 and Sandland’s chapter on children and mental disorder clarifies the often complex legal and policy considerations extant in this field of practice.11 These chapters document the enormous progress policymakers and legislators have made, but also highlight the ongoing challenges facing mental health decision-makers. The book is divided into five parts: (i) history and context, (ii) the mental health system, (iii) care and civil compulsion, (iv) criminal justice, and (v) patient protection. Each part contains several contributions from leading academics and commentators, and each chapter follows a broadly similar structure. First, the chapters address the theoretical and normative issues arising in the topic at issue. Then, the writers set out the current law. While the policy discussions mirror the style one would expect from academic journals and grey literature, the doctrinal content has a more functional quality, similar to that which might feature in a practitioner text. This style may not always be readable in a linear way, but the authors make the law easier to digest for lay decision-makers with little or no experience of interpreting statutes or case law. In this way, the book serves as both a primary and a secondary source. There are several particularly impressive contributions to this valuable text, including Fennell’s discussion of the 2007 Act’s simplification of the definition of mental disorder.12 Section 1(2) of the 2007 Act defines mental disorder as ‘any disorder or disability of the mind’, and amends section 1(2) of the Mental Health Act 1983 (1983 Act) which featured a more complex legal framework that defined ‘mental illness’, ‘mental impairment’, ‘severe mental impairment’, and ‘psychopathic disorder’. Fennell explains that definitions of concepts such as ‘mental disorder’ and ‘appropriate treatment’ delimit the application of the Mental Health Act’s compulsory powers; ‘the wider the definition[s] . . . the larger will be the group potentially eligible for involuntary treatment’ ( para. 2.02). For this reason, the 2007 Act’s apparently modest changes have had a profound impact on mental health practice. Fennell’s work is among the most significant in the book because its contents indicate the limits of compulsory engagement with mental health services. While the 1983 Act ‘contained a number of exclusions to emphasise the boundary between mental disorder

6

K Keywood, ‘Nearest Relatives and Independent Mental Health Advocates: Advocating for Mental Health’, ch 9. J. Dawson, ‘Community Treatment Orders’, ch 14. P. Fennell, ‘Mental Capacity’, ch 4. P. Bartlett, ‘Informal Admissions and Deprivation of Liberty under the Mental Capacity Act 2005’, ch 11. 10 J McHale, ‘Privacy and Confidentiality in Mental Health’, ch 24. 11 R Sandland, ‘Children, Mental Disorder and the Law’, ch 18. 12 See n 5. 7 8 9

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and deviancy from society’s norms . . . these have now been removed’ ( para. 2.27). Fennell also demonstrates that certain conditions, most notably personality disorders, are more readily engaged by the 2007 Act’s definitions than they were under the 1983 Act. As he points out, in the post-2007 Act era ‘there will be many fewer legitimate reasons for clinicians not to use compulsory powers’ ( para. 2.103). In their contribution, Glover-Thomas and Laing discuss mental health professionals.13 They clearly anticipate that their work will guide practitioners working in the field and their chapter maintains a practical tone, but also makes an important contribution to academic discourse. Whereas the 1983 Act referred to ‘Approved Social Workers’ and ‘Responsible Medical Officers’, the 2007 Act describes ‘Approved Mental Health Professionals’ (AMHPs), and ‘Responsible Clinicians’.14 Glover-Thomas and Laing explain that the medical profession has traditionally played a key role in mental health decision-making because of its ‘perceived elite professional knowledge and training’ (para. 8.05), but that social workers became prominent in the dual decision-making process after the 1983 Act. Since then, the emphasis has shifted onto multi-disciplinary decision-making; a trend which the 2007 Act continues. This chapter sets out, in considerable detail, the powers and responsibilities of mental health professionals and explains that, crucially, the 2007 Act expands the pool of professionals from which AMHPs can be drawn; thus, opening the role up to nurses, occupational therapists, and psychologists.15 Glover-Thomas and Laing therefore anticipate that approved clinician status ‘will be extended to other health professionals of lower status’ (para. 8.90) and that, as a consequence, decision-making dynamics between staff may change as the boundaries between clinical and social work are blurred. This may mean that ‘there remain many unanswered questions about how [the] changes will be implemented’ (para. 8.131). Dawson’s chapter on Community Treatment Orders (CTOs) provides a comprehensive background to the 2007 Act’s supervised community treatment provisions.16 In the light of the de-institutionalisation of mental health practice in England and Wales since the 1980s, Dawson’s contribution to this collection provides important and incisive academic commentary and thorough practical guidance on the latest community-based mechanism. First, he charts the law’s progress from the decision in R v Hallstrom, ex parte W 17 to the new CTO regime found in Chapter 4 of the 2007 Act, which inserts sections 17A–17G and 64A–64K into the 1983 Act. Community care and treatment are not new ideas; guardianship,18 leave,19 and the former supervised discharge regime20 were the forerunners of supervised community treatment. Dawson’s style strikes the balance between theory and practice well, ensuring that his work has a broad readership. The most fascinating part of his analysis compares 13 14 15 16 17 18 19 20

N Glover-Thomas and J Laing, ‘Mental Health Professionals’, ch 8. Mental Health Act 2007 (2007 Act), ch 2. Mental Health Act 1983 (1983 Act), s 114, as amended by s 18 of the 2007 Act. See n 7. [1985] 3 All ER 775. 1983 Act, ss 7 and 37. 1983 Act, s 17. Set up by the now-repealed Mental Health (Patients in the Community) Act 1995.

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leave and the CTO, revealing the extent of the duplication of the community powers. This raises an interesting question about whether the 2007 Act’s reforms will ultimately render the leave provisions under section 17 redundant. In addition, the chapter focuses on decision-makers’ powers to administer treatment under the CTO.21 In many respects, the CTO is a misnomer; a patient cannot normally be forcibly treated in the community as she must be recalled to hospital if she does not comply with the terms of the Order.22 However, the patient’s capacity to consent to treatment can make a difference here,23 and this further exacerbates confusion about the interplay between the Mental Health Acts and the MCA 2005. An adult patient subject to a CTO may receive treatment for her mental disorder in the community where there is authority for a practitioner to administer the treatment,24 it is immediately necessary to do so, and the patient (with the requisite capacity)25 consents to it.26 Generally non-consenting patients cannot be forcibly treated in the community under a CTO unless emergency treatment needs to be administered. In this situation, under section 64G, the decision-maker must reasonably believe that the patient lacks capacity to consent to the treatment, the treatment must be ‘immediately necessary’27 and if it is necessary to use force against the patient, treatment must be given in order to prevent harm to him or her and the use of such force must be a proportionate response to the likelihood of the patient’s suffering harm, and to the seriousness of that harm.28 Dawson clarifies the operation of this complicated regime in an engaging and accessible way. Munro’s chapter discusses the various therapeutic strategies and procedures for treatment in hospital.29 This chapter has one of the simplest structures in the book, which is incredibly helpful given how ‘astonishingly diverse’ the treatments for mental disorders can be ( para. 13.08). Her contribution serves as a reminder of how far psychiatric treatments have come over the last 50 years as medication and talking therapies have replaced the invasive neurosurgical procedures which were common in the mid-twentieth century. Part IV of the 1983 Act regulates treatment for mental disorder in hospital and, like other parts of the statute, it is not always easy to follow. The statute does not normally require a patient’s consent for treatment for her mental disorder,30 although certain therapies require consent and a second opinion31 or both.32 Special provisions apply to particular treatments, such as electro-convulsive therapy (ECT).33 Munro’s 21 22 23 24 25 26 27

28 29 30 31 32 33

1983 Act, Part 4A. 1983 Act, s 17E. See 1983 Act Part 4A. 1983 Act, s 64B(2). As determined by the MCA 2005. 1983 Act, s 64B(3)(b). Treatment is ‘immediately necessary’ if it will save the patient’s life, prevent a serious deterioration of his condition (but only if the treatment is not irreversible), alleviate serious suffering by the patient (but only if the treatment is not irreversible or hazardous), or if it represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others (and it is not irreversible or hazardous), s 64G(5). 1983 Act, s 64G(2)–(4). N. Munro, ‘Treatment in Hospital’, ch 13. 1983 Act, s 63. 1983 Act, s 57. 1983 Act, s 58. 1983 Act, s 58A.

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chapter features detailed discussion of the relevant case law that would not feature in literature published solely for practitioners’ use. It also addresses the application of the concepts of capacity, best interests, and appropriate treatment. Despite Munro’s functional approach, her chapter also provides an interesting critique of the current treatment arrangements. Psychiatry is not an exact science; many treatments, like ECT, work for reasons clinicians do not fully understand. The statutory framework reflects this intrinsic uncertainty. As Munro points out, ‘[i]t is hard to discern the policy reasons for requiring a high level of oversight for decisions relating to the administration of medication, ECT and surgery whilst other equally invasive treatments are not protected’ (para. 13.94). She criticises the way the law regards informal patients like any other while their ‘supposedly freely given consent to treatment’ is ‘open to question’ (para. 13.94). She also questions the courts’ ability to oversee medical practice ‘whilst avoiding establishing impractical precedents’ (para. 13.94). Munro’s conclusions provide academic food for thought and will surely stimulate debate in the controversial area of psychiatric treatment. Although this book covers most of the topics relevant to mental health practice, law, and policy in great detail, it lacks any substantive discussion of the concept of risk. This is surprising because the law’s role in legitimising compulsion in order to control risks to persons with mental disorders and the wider public has been a prominent feature of the discourse on legislative reform since the late 1990s. Indeed, in the early 2000s, the then Labour Government rejected the Richardson committee’s principled emphasis on patient autonomy and self determination34 in favour of reforms driven by the risk agenda.35 Policy-makers resolved to ensure that ‘concerns of risk . . . always take precedence’ in mental health decision-making,36 and decision-makers’ conclusions about a patient’s risk profile determine the nature and duration of her compulsory engagement with mental health services. Dealing with risk in mental health practice is nothing new; deployment of the compulsory powers has always been contingent on a decision-maker’s assessment of a patient’s potential to cause harm to herself or others.37 This assessment is a matter for professional decisionmakers’ discretion; the Mental Health Acts neither define ‘risk’ nor delimit the factors relevant to it. Indeed, the CTO provisions are the first in the Mental Health Acts actually to feature the word ‘risk’, and while risk informs every aspect of mental health decision-making which the book discusses, it is a curiously opaque and uncertain concept. The author of this review was a research assistant on a study into the impact of the 2007 Act on mental health decision-making in the Mersey Care NHS Trust.38 Drawing on Peay’s work,39 the research team hypothesised that the

34 35 36 37 38

39

DH, Review of the Mental Health Act 1983: Report of the Expert Committee (DH, London 1999). HM Government, Reforming the Mental Health Act: Part I: The New Legal Framework, Cm 5016-I (The Stationery Office, London 2000). Ibid, para 2.16. See, eg, 1983 Act, ss 2(2)(b) and 3(2)(c). N Glover-Thomas, An Investigation into Initial Institutional and Individual Responses to the Mental Health Act 2007: Its Impact on Perceived Patient Risk Profiles and Responding Decision-Making (School of Law and Social Justice, University of Liverpool 2011). J Peay, Decisions and Dilemmas: Working with Mental Health Law (Hart, Oxford 2003).

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2007 Act expands decision-makers’ discretions through its emphasis on risk and simplified definitions of mental disorder and appropriate treatment. During key informant interviews, participants from the clinical, social work, and administrative professions were asked about their understanding of risk. There was significant variation in the meaning that decision-makers attributed to risk; some were self-authored and abstruse (‘risk is a wider version of safety’40), and others were tautological and circular (‘risk is risk’41). The concept is neither understood with any certainty nor applied with any consistency. Indeed, the team found that there were a seemingly infinite number of factors that decisionmakers might take into account in formulating a patient’s risk profile. While this provides practitioners with an important strategic device to generate desired outcomes, it renders the patient’s position in law profoundly uncertain. Given that risk influences decisions to admit and treat patients, impose CTOs, determine sentences, and recommend discharge, it is a pity that the book does not feature contributions explaining and evaluating the nature of the concept. Having said that, this should not detract from what is a well-written collection which will be essential reading for scholars, lawyers, and practitioners operating at the interface of law and psychiatry. Principles of Mental Health Law and Policy is vital for anyone with an interest in the entire mechanics of mental health practice. The book accomplishes its ambitious and diverse aims, ensuring that readers from a range of backgrounds gain something of value from it. Its broad readership can look forward to future editions. John Fanning University of Liverpool doi:10.1093/medlaw/fwr026

40 41

See n 38, p 20. Ibid.

Medical Law Review, 19, Autumn 2011, p. 675 doi:10.1093/medlaw/fwr032

BOOKS RECEIVED If you are interested in writing a review of one of the books listed below please contact the Book Reviews Editor, Dr Sara Fovargue: s.fovargue@ lancaster.ac.uk. Reviews are usually 2,000-4,000 words long, but shorter reviews will be considered with the agreement of the Reviews Editor. J.G. Culhane (eds.), Reconsidering Law and Policy Debates: A Public Health Perspective (CUP, 2011). A-M Farrell, D Price, M Quigley (eds) Organ Shortage: Ethics, Law and Pragmatism (CUP, 2011). R. Mulheron, Medical Negligence: Non-Patient and Third Party Claims (Ashgate, 2010). G. Nowenstein, The Generosity of the Dead: A Sociology of Organ Procurement in France (Ashgate, 2010). M.A. Rodwin, Conflicts of Interest and the Future of Medicine: The United States, France, and Japan (OUP, 2011).

Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: [email protected]