Can Conditions Imposed Under Sec.37/41 Breach Article 8 Human Rights? Recent Case Law

Conditions can be imposed on patients subject to conditional discharge under Sec.37/41 MHA, as well as those subject to Community Treatment Orders under Sec.17A MHA. These can impose considerable limits on a patient’s freedom, such as stating where the patient must live, and what they can and can’t do. These conditions can include anything from stipulating whether or how a patient can access the internet, to prohibitions on drinking alcohol or taking illegal drugs.

Generally, patients do not object to these conditions, if it means that they can be released from hospital, so there is little case law relating to whether or not such requirements could breach an individual’s human rights. However, a recent Upper Tribunal appeal did address this issue.

The Upper Tribunal considered an appeal from the 1^st Tier Mental Health Tribunal concerning a conditionally discharged patient (RP v Dudley and Walsall Mental Health Partnership NHS Trust and the Secretary ofState for Justice, [2016]UKUT 204 (AAC) (26 April 2016).

RP had a diagnosis of paranoid schizophrenia, and had been made subject to hospital and restriction orders under Sec.37/41 following convictions for offences of violence.

He was conditionally discharged in September 2011, and had been living in the community since then. RP’s order and conditions were reviewed by a 1^st Tier Tribunal in February 2015, who decided the conditions should continue.

The appeal was based on the contention that there had been errors in law, the most significant being that the Tribunal had failed to comply with the patient’s right under Article 8, and it was this aspect that the Upper Tribunal had to consider.

Article 8 of the Human Rights Act is, of course, concerned with the right to respect for private and family life.

Specifically, Article 8 states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

One of the conditions stated that “The patient shall abstain from using illicit drugs and steroids. He is also to refrain from the consumption of alcohol to excess.” It was the contention of the patient’s solicitors that this breached his human rights.

The Upper Tribunal gave this due consideration, stating:

 It is possible, for example, that the conditions imposed on a conditional discharge might represent an unjustified interference with private or family life. The tribunal is entitled to expect a representative to draw attention to any specific Article 8 issues that arise.

The Judge went on to state:

Most conditions that are imposed on conditional discharges are capable of being operated oppressively, but in practice they are not. It is understood when the conditions are imposed that they will be applied reasonably and according to the circumstances at the time. Intervention may be light-handed or heavy-handed as required. The application of Article 8 will be calibrated to the needs of the patient and the public. The tribunal is more likely to be concerned to ensure that the conditions are reasonable in principle.

Considering the condition relating to “excess alcohol consumption”, the Judge concluded:

It is, as the solicitors say, inherently vague. But it is reasonable for a tribunal to impose some kind of control over alcohol consumption and the difficulties of precise definition are capable of causing as many problems as they try to solve. What matters is how the conditions are operated and Article 8 operates to protect the patient at that stage.

The decision therefore was that the conditions of the discharge, even the contentious issue relating to drug and alcohol use, did not breach the patient’s Article 8 Human Rights.

Death and Fire Bunnies: Another Story from an Out-of-hours Social Worker

I’ve mentioned before on this blog that in addition to my day job, I did shifts in the local out-of-hours social work team for about 14 years, throughout the 1980’s and 1990’s.

You were very much on your own: there were two social workers on duty covering a county that was 75 miles from west to east, and 50 miles from north to south. A deputising service took calls and passed them on to these two workers, who then dealt with the referral as they saw fit, whether it was a Mental Health Act assessment, an allegation of child abuse, a frail elderly person needing a night sitter – or anything else at all that could conceivably fall within the remit of social services.

We were pretty much allowed to make our own decisions without interference. Often it was as much about what you decided not to do as what you did.

One winter’s evening, I received a call from a medical ward in a hospital. The Sister was concerned about Erica, a woman in her 70’s who had been present at her terminally ill husband’s bedside when he had finally died.

“I’m very worried about her,” the Sister said. “She won’t stop crying. We’ve got her in a side room, and one of my staff is with her, but we’re worried she might do something silly if she goes home. She might need to be admitted to a psychiatric hospital.”

I couldn’t help feeling that the quality of the referral was dubious. After all, isn’t someone entitled to cry when a loved one has died? Isn’t it something that nurses on a medical ward come across frequently, and ought to know how to deal with such events?

However, the Sister maintained that this wasn’t normal, and that Erica needed to be assessed.

In the end, I decided I had to go out and see Erica, although I was not going to treat it as a formal request for a Mental Health Act assessment, which seemed disproportionate in the circumstances.

The county being so geographically large, it was about an hour before I got to the hospital. Erica was in a side room. She was no longer crying, and seemed quite composed.

“I’m very sorry you’ve been bothered,” she said. “As you can see, I’m quite all right now. But Jimmy and I have been married nearly 50 years, you see, and I’m going to miss him.”

A tear sprang into her eye, although she did not sob.

“Do you have any relatives nearby? Any children?” I asked gently.

“Jimmy and I never had children. I’ve got a sister, but she lives 200 miles away. I don’t want to bother her. I promise, I’ll be all right.”

“What would you like to happen right now?”

“I’ve paid my respects, I’ve said my goodbye. I don’t want to stay here any longer – Jimmy isn’t here now. He’s somewhere else. I’m tired. I’d like to go home.”

“Would you like me to take you home?” I asked.

“I don’t want to put you to any trouble.”

“It’s no trouble.”

Her home wasn’t far away, and we were soon at her dark cottage. She unlocked the door and I followed her inside. The house was clean and tidy, displaying the love she had had for their home, but it was cold. She did not have any central heating.

I noticed a tiled 30’s fireplace, with a grate and a bucket of coal on the grate.

“Shall I light the fire for you?” I asked her. “Have you got any firelighters?”

“I don’t use firelighters,” she said. “I just make some fire bunnies.”

“Fire bunnies? What are fire bunnies?”

“Don’t you know what fire bunnies are?”

I shook my head. “Can you show me?”

“Come and watch me,” she said, getting a newspaper and kneeling down by the fire.

I observed as she took a sheet of newspaper and rolled it into a long tube. Then she tied it into a loose knot and popped it into the grate. She continued to do this until she had used up the newspaper. Then she laid a few pieces of kindling wood on top, and finally added a few lumps of coal.

Once she was satisfied, she struck a match and lit one of the fire bunnies.

The fire very soon flared up, the fire bunnies providing a rapid and efficient source of heat, catching the kindling, and soon the fire was blazing away and bringing warmth into the room.

“That’s amazing,” I said, genuinely impressed. “I’ve never heard of fire bunnies before. What a good idea. I’ve got a woodburner at home. I’ll have to try that next time I’m lighting a fire.”

Her face lit up with pleasure. “Oh, I’ve known how to do that since I was a little girl. My mother taught me. Would you like a cup of tea?”

She made us a cup of tea and we sat in front of the fire while she told me about her mother, and her father, and even her grandmother. And about Jimmy, of course.

By the time I left, I was satisfied she was safe to be alone. She was best at home. I knew she had a long journey ahead of her, and it wouldn’t be easy. But she was already beginning to process her grief. She would make it.