European Human Rights in the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006

1. 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

2. Outline • Introduction • Mental Health Act 2001 • Criminal Law (Insanity) Act 2006

3. 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

4. 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

5. 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

6. Mental Health Commission www.mhcirl.ie

8. Mental Health (Criminal Law) Review Board www.mhclrb.ie

10. Mental Health Act 2001

11. Article 5 ECHR • 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)]

12. 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

13. 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

14. “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

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

17. 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

18. 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

19. 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

20. 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)

21. 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

22. 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

23. 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

24. 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

25. 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

26. Independence of executive • Minister appoints Mental Health Commission based on criteria in s.35 • Commission appoints Tribunal members under s.48

27. 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

28. A v Refugee Appeals Tribunal (2006) • Arguably selected previous decisions of Mental Health Tribunals need to be made available

29. 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?

30. Article 3 • Freedom from inhuman or degrading treatment • No successful case in Europe yet • Possible challenges can be envisaged

31. Criminal Law (Insanity) Act 2006

32. 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

33. Ní Raifeartaigh: • Courts should interpret s.4(6) in Convention-compliant fashion

34. 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.)

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

36. 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)

37. Procedures • Minister must consent to procedures of Review Board [s.12(6)] • Criticised as Ministerial “veto”

38. 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)

39. 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”

40. 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

41. 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)

42. 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

43. Article 6 • A v Refugee Appeals Tribunal • See earlier slide under Mental Health Act

44. References • www.irishlaw.org/mentalhealth/oct07paper/