European Human Rights in the Mental Health Act 2001 and

the Criminal Law (Insanity) Act 2006

Darius Whelan

Mental Health and Human Rights

Seminar

October 2007

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Outline

Introduction Mental Health Act 2001 Criminal Law (Insanity) Act 2006

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Key Dates

31 Dec. 2003 – European Convention on Human Rights Act 2003 came into force

1 June 2006 – Criminal Law (Insanity) Act 2006 came into force

1 November 2006 – Main parts of Mental Health Act 2001 came into force

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The 2001 and 2006 Acts in general conform with the ECHR

Acts are vast improvement on the previous law

ECHR had major influence on how ’01 and ’06 Acts were drafted

ECHR also impacted on amendments made during Oireachtas debates

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Focus in this paper is on possible further improvements which might be made in light of ECHR

Note ECHR arguments will often be made in parallel with Irish constitutional law arguments

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Mental Health Commission www.mhcirl.ie

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Mental Health (Criminal Law) Review Board

www.mhclrb.ie

Mental Health Act 2001

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Right to liberty. No one to be deprived of liberty save in following cases and in accordance with procedure prescribed by law [art.5(1)]

One case: lawful detention of “person of unsound mind” [art. 5(1)(e)]

Right to information on “arrest” [art.5(2)] Right to take proceedings for decision on

lawfulness of detention [art.5(4)]

Article 5 ECHR

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Winterwerp v Netherlands (1979)

Decision to detain must be based on finding of a true mental disorder determined by objective medical expertise

Mental disorder must be of kind or degree warranting compulsory confinement

and Validity of continued confinement must be

based on the persistence of the disorder

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De Facto Detention

Voluntary Patient who does not have capacity to consent to admission,

and/or wishes to leave centre but fears re-grading as

involuntary patient

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“Bournewood Gap”

R v Community and Mental Health NHS Trust, ex parte L. (1998) House of Lords: De Facto Detention justified by

common law doctrine of necessity H.L. v United Kingdom (2004)

European Court of HR: Detention of this kind breaches Article 5

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Reform of law needed in Ireland to deal with “Bournewood gap”

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See also Irish case: H. v Russell (2007) Relevant period where a patient was, apparently,

a “voluntary” patient was not in substance voluntary

Detention held to be unlawful

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Speed of Tribunal Reviews

Reviews must be within 21 days of admission or renewal order

As regards first review, this may not be “speedy” enough to satisfy ECHR L.R. v France (2002) – 24 days too long

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Note views of Dept of H & C, 2007: Tribunal hearings should take place at earliest

possible opportunity 14-day time period for second consultant’s report

should be reduced

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Frequency of Reviews

While automatic reviews are desirable, they do not necessarily fully comply with Article 5

“The detainee’s access to the judge should not depend on the good will of the detaining authority.” Rakevich v Russia (2003)

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Definition of “unsound mind”

ECHR has not defined “unsound mind” Irish case: R. v Byrne and Flynn (2007)

S.3(1)(a) – serious likelihood of immediate and serious harm to self/ others – envisages a high level of probability

“Harm” – physical and mental injury are included “Serious” – Infliction of minor physical injury to

person themselves could be regarded as not serious

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Scope of Review

Tribunal has limited powers – only two main choices: confirm or revoke order

Arguable that Tribunals need to have more extensive powers, e.g. to order conditional discharge; defer discharge until place available

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UK: Postponing Release until suitable place in community available

Johnson v UK (1997) J. no longer had a mental disorder Discharge must not be unreasonably delayed

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Burden of Proof

Act is silent about burden of proof at Tribunal stage

On appeal to Circuit Court: Burden of proof on patient

Unclear whether this complies with ECHR R v MHRT, N. & E. London, ex parte H. (2001) Is an appeal stage different from first instance

stage? Delcourt v Belgium (1970) – Appeal courts should

comply with Art. 6

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Impartiality

Patient appears to be only party to Tribunal hearing

Normal triangular model of Tribunal has not been established

Tribunals need to take care in questioning patient not to act as if “against” patient

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Independence of executive

Minister appoints Mental Health Commission based on criteria in s.35

Commission appoints Tribunal members under s.48

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Article 6

Fair and public hearing within reasonable time by independent and impartial Tribunal

Applies to determination of civil rights Right to liberty is civil right

Aerts v Belgium (1998) Equality of arms, reasons for decisions,

reasonable time, etc. Right to participate effectively

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A v Refugee Appeals Tribunal (2006) Arguably selected previous decisions of

Mental Health Tribunals need to be made available

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Restriction on right of access to court S.260 Mental Treatment Act 1945 ECHR upheld English equivalent –

Ashingdane v UK (1985) Blehein v Minister for Health and Children

(2004) Where does Blehein leave s.73 Mental

Health Act 2001?

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Article 3

Freedom from inhuman or degrading treatment

No successful case in Europe yet Possible challenges can be envisaged

Criminal Law (Insanity) Act 2006

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Article 5

No need for psychiatric report for 14-day detention for assessment [s.4(6) + s.5(3)]

Can be extended up to 6 months in insanity cases after consultation with psychiatrist [s.5(3)(b)]

Keys: This may breach Winterwerp principles

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Ní Raifeartaigh: Courts should interpret s.4(6) in Convention-

compliant fashion

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Lack of clarity re personality disorders Minister McDowell: “It may or may not be

that [s.8 of the 2001 Act] is a tacit admission that mental disorder could include a personality disorder and, therefore, section 8 was necessary to take it out of that realm. Alternatively, the whole Act could be read as stating mental disorder under the 2001 Act was not intended to cover personality disorder.” (176 Seanad Debates 259.)

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Lack of clarity may breach requirement in art. 5 ECHR that detention be “in accordance with procedure prescribed by law”

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Reviews

Initial detention involves judicial decision and therefore review not needed

Subsequent reviews at least every 6 months Human Rights Commission suggested 3

months Period of time from application for review by

patient to date of review – “as soon as may be” – s.13(8) + (9)

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Procedures

Minister must consent to procedures of Review Board [s.12(6)]

Criticised as Ministerial “veto”

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Powers of Courts and Review Board

More extensive than Mental Health Tribunals But different powers for different categories of

case - Unfit for trial cases: court may order out-patient

treatment – s.4(5) Insanity cases: court does not have this power –

s.5(2)

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Information

No statutory right to information for patient Contrast Mental Health Act 2001

Care must be taken to comply with requirement of information on “arrest”

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Impartiality

Only three members of Review Board have been appointed

How will RB deal with situation where member of RB has had previous dealings with patient?

What if successful Judicial Review? No alternative members available to re-hear case

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Transfers from Prison

Aerts v Belgium (1998) Court can have regard to nature of treatment

available in prison In Mr A’s case, detention in prison breached Art. 5

as he had a mental disorder Contrast Bizzotto v Greece (1996)

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Independence of executive

Minister appoints Review Board members. Very few criteria in Act for appointment

National Disability Authority feared this breached ECHR

Mental Health Commission: Questions about independence could be raised Could be unfair that composition of RBs would

vary

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Article 6

A v Refugee Appeals Tribunal See earlier slide under Mental Health Act

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References

www.irishlaw.org/mentalhealth/oct07paper/