A
primary function of the AMHP role is the protection of the liberty interests of
the individual. It is in tension with
our duty to ensure the safety of those individuals and that of the public,
alongside the promotion of their wellbeing.
I
have mapped out my thinking regarding two related issues which straddle this
tension, to seek people's views. Both
involve the nature of the relationship of Sec.136 Mental Health Act to the
requirements of Article 5 of the Human Rights Act 1998, relating to the right
to liberty, and demonstrate the complexity of our work having to take regard of
the interface between domestic law and the requirements of the HRA.
The
first follows from an interesting debate which has recently arisen amongst the
AMHPs in my local authority, stemming from the bed crisis which is nationally
affecting us all: the question of whether it is proper, or even lawful, to continue
to detain someone under Sec.136 when they are able to consent to, or lacking
capacity do not object to, hospital admission, but a bed is not currently
available.
Some
of our AMHPs, concerned about inordinate waiting times, which can exceed
twenty-four hours, combined with the possibility that the person may change
their mind, believe it is proper to do so. Others are passionately against the
practice. This is issue A.
The
second, Issue B, arises from a concern I have had for some time about the
compatibility of the direction in the Code of Practice, at para.16.51 with
Article 5, where a person is concluded by a doctor to ‘have a mental disorder’
and therefore has to be seen by an AMHP before they can be released from
detention under Sec.136.
Issue
A:
Having
looked at the statute and relevant aspects of the Code of Practice, it appears clear
to me that domestic law provides a framework to authorise the continued
detention of someone who is consenting to informal admission.
In
brief, Sec.136(2) permits the continued detention of a person taken to a place
of safety for up to 72 hours to enable 'him' to be examined by a registered
medical practitioner, to be interviewed by an AMHP and, importantly for our
purposes: ‘of making any necessary arrangements for his treatment or care’,
i.e. the finding and subsequent offer of a bed.
Although
the use of the term 'may' (be detained) permits the ending of detention prior
to the statutory limit of ‘not exceeding 72 hours’, the Code of Practice guides
(at para.16.50) that detention ends as soon as ‘suitable arrangements have been
made’. If a bed is not available it
cannot be offered and suitable arrangements are in the process of being made,
rather than ‘have been made’. Consequently the authority to detain remains in
place.
However,
having thought about this matter further, it occurred to me that my colleague’s
passionate objection might find grounds in the question as to whether domestic
law meets the requirements of the Human Rights Act 1998 and the injunction for
the prevention of arbitrary detention following from Article 5. My examination
of this question led me to the position that the continued use of detention can
in fact be lawful, but in circumstances narrower than I had first thought.
My
starting point was the fact that all public authorities are required to act in
accordance with the Convention, within the scope provided by the primary
legislation (Sec.6, HRA 1998) and to have regard to European jurisprudence
(Sec.2, HRA 1998).
Importantly,
this includes, in Stanev v Bulgaria (2012), the fact that the European Court of
Human Rights considered ‘the detention of an individual is such a serious
measure that it is only justified where other, less severe measures have been
considered and found to be insufficient to safeguard the individual or public
interests which might require that the person concerned be detained. That
means that it does not suffice that the deprivation of liberty is in conformity
with national law; it must also be necessary in the circumstances.’ (para.143,
my emphasis).
Additionally,
for persons detained on the ground of ‘unsoundness of mind’ (Article 5 (1)(e))
their continued detention must accord with the Winterwerp (1979) ruling: whereby
the person must be reliably shown to be of unsound mind by a medical expert;
secondly, the mental disorder must be of a kind or degree warranting compulsory
confinement; thirdly, the validity of such continued confinement depends upon
the persistence of such a disorder.
It
is also the case that any interference with a person’s rights under the
European Convention of Human Rights must be proportionate.
Finally,
public authorities have a positive duty to take reasonable steps to prevent a
deprivation of liberty in situations where they know, or ought to know, that a
deprivation of liberty is taking place (Stork v Germany [2006], para.102).
Therefore,
where a person subject to Sec.136 has been examined by a doctor (or doctors)
and has been interviewed by an AMHP, it would be reasonable to infer that the
continued detention, for the making of suitable arrangements, would require
that the person is found to be currently of unsound mind (see issue B below),
the kind or degree of which warrants their continued detention and,
irrespective of the provisions which may authorise the detention under domestic
law, it, in addition, must be demonstrated to be necessary to continue that
detention, in the person's or public's interests, and the measures taken must
be seen to be proportionate to the ends for which the detention has proved to
be necessary. This would include having explored all alternative options
providing for less restriction. If these
criteria were not met, following from one's positive duty under Article 5
(particularly as the AMHP has become party to the detention), action would be
required to seek to end the detention.
I
am not entirely clear how this should take place. As far as I can see no agent, per se, has a
designated power to do this (other than a Custody Sergeant in a police
station). Rather, the detention lapses
at the point at which the suitable arrangements have been made. This, however, implies that someone has made
the judgment that the arrangements have indeed been made and that they are
suitable. Given that the doctor and the
AMHP are charged with establishing the care and treatment needs and delineating
what arrangements would be suitable to meet the identified need, it would imply
that one or both would have a role. If this
were the case (given that Sec.6 HRA 1998 restricts decisions in respect of
article rights' to be within the scope of the primary legislation) then there
would be scope to act, as the condition of termination is defined by the Code
and not by statute: there would be a cogent reason for the decision maker(s) to
depart from the Code as the situation was in violation of the person's Article
5 rights.
It
follows from the above that the situations which permit continued detention are
therefore circumscribed. The evidence
must establish unsoundness of mind of a kind or degree warranting continuation
of the nature of the compulsory confinement proposed (Re PS (an adult) [2007]
para. 23 (ii)). This would mean that
they are likely to meet the general grounds for detention under the Act –
although, it may not be necessary nor warranted to be admitted to hospital
under detention.
It
is to be remembered that, exercising the principle of least restriction, it is
within the AMHP’s discretion not to seek to make an application - the balance
being tipped towards promoting the person's liberty interests (whether the
intention is to return the person to the community or to await a hospital
bed). The caveat to this is that if the
person is to be admitted, then a lawful framework for their likely deprivation
of liberty at hospital will need to be in place in advance of that admission.
The
next step in the argument is to look at the important relationship between
capacity to consent and deprivation of liberty.
As this relationship has an equal, determinative, role in both issue A
and B, I would like to pause at this point to introduce issue B.
Issue
B:
This
issue arises from a similar concern with regard to engagement of Article 5 and
the risk of arbitrary detention. The
Winterwerp criteria referred to above were re-affirmed in Varbanov v Bulgaria
(2000). At para.47, it was clarified that in urgent cases the necessary opinion
of a medical expert can be obtained immediately after a person's arrest.
However, it was explicitly specified that ‘the assessment must be based on the
actual state of mental health of the person concerned and not solely on past
events’, i.e. the unsoundness of mind has to be both contemporary and
persisting, rather than latent and potential (unless rapid decline is
indicated).
This
is underscored by the fact that, as we have already seen, to qualify for
continued detention the unsoundness of mind must be of a kind or degree which
warrants that detention. This has always appeared to me to be to be at odds
with the requirement of para.16.51, of the Code of Practice, where a doctor
alone sees the person first, concludes that compulsory admission to hospital is
not necessary and establishes that they 'have' a mental disorder - i.e. they
are known to suffer from, but are not currently manifesting signs or symptoms
of that disorder - the person's detention is to continue until they can be seen
by an AMHP. I have long felt that this
contradiction was a cogent reason for departing from the Code of Practice and
for the responsible doctor undertaking the examination to discharge the person
from detention.
Although
the initial duty would fall to the responsible doctor, where an AMHP has been
informed that the person is not currently mentally disordered, the positive
duty following from Article 5 would require them, at a minimum, to bring the
doctor’s responsibility to their attention.
The
role of capacity, consent and deprivation of liberty
It
is important to remember that we are addressing concerns regarding the interface
of the MHA 1983 with Sec.6 of the HRA 1998.
Issues A and B turn on the engagement of Article 5 and therefore whether
a deprivation of liberty is occurring in each situation. Capacity and consent, which have no role in
criteria under the MHA 1983, take on significance at the interface of the two
schemes as they play a role in defining whether a deprivation of liberty is
likely to be occurring. Let's take these matters in turn.
Both
issues A and B only arise if the person's situation can be considered to
constitute a deprivation of their liberty.
If the particular situation doesn't, then there is no conflict with the
domestic guidance and it's authority remains.
As we know, deprivation of liberty is a tricky beast. Most importantly it is an 'autonomous
concept'. Although all deprivations of liberty
are detentions, not all 'detentions' are deprivations of liberty (see Foka v
Turkey (2008), para.75, where the ECtHR found no deprivation of liberty where a
stay in a police station, lasting a few hours, did not go beyond the time
strictly necessary to complete certain administrative functions).
The
calibration of a 'detention' as to whether it amounts to a deprivation varies
by the interplay of the 'Acid Test' and such factors as intensity e.g. whether
coercion is involved (see Foka v Turkey 2008), and duration e.g. whether there
is undue delay in the completion of process (see R(Sessay) v South London and
Maudsley NHS Foundation Trust (2011)). I suspect, given the cautious approach
advised by Baroness Hale in the Cheshire West ruling, the need to err on the
side of caution would lead us to construe those subject to Sec.136 as deprived
of their liberty - particularly as coercion is implied. With regard to duration, if the wait could be
considered to be ‘negligible’ then, possibly, it is likely that no breach would
occur.
The
exception to the above, in both issues A and B, will be where the person is
able to consent to remaining in the Sec.136 suite and does so. This follows
from the fact that the subjective element of the test for a deprivation of
liberty has not been met. Care, of
course, would have to be taken about the information provided to ensure the
person's understanding of what it means to remain until suitable arrangements
can be made, or to agree to be seen by an AMHP.
However, if this is the case, there would be no conflict with Article 5
and the authority for detention under s136 would continue.
The
issue of capacity and its relationship to determining whether the situation is
a deprivation of liberty is therefore important. As far as I can see:
A)
people awaiting suitable arrangements to be made, whether going into hospital
or back to the community, the situation will be determined as follows:
(i)
People
who can consent to remaining, and do so, are not deprived of their
liberty. There is therefore no conflict
with the provisions of Article 5, and they remain subject to detention under
s136. The detention will end when it has
been decided that suitable arrangements are in place.
(ii)
People
who can consent to remaining and object, or who are found to lack such capacity,
weather compliant or objecting, are likely to be derived of their liberty.
Continued detention must be shown to be both necessary and proportionate with
respect to the person's or public's interests, following the scheme discussed
above.
B) For those who have been seen by a doctor and
are not currently of 'unsound mind', the
situation will be determined as follows:
(i)
People
who can consent to remaining, and do so, are not deprived of their liberty. Therefore
no conflict with the provisions of Article 5 arise, and they remain subject to
detention under s136. The detention will
end when it has been decided that suitable arrangements are in place.
(ii)
In
all other situations they will be subject to a deprivation of their liberty,
which would conflict with Article 5 rights as the ground of being currently of
‘unsound mind’ is not met – one’s positive duty to prevent arbitrary detention
would then have to be considered.
Therefore,
for all those involved with a person detained under Sec.136, in order to promote
their liberty interests, the above can be distilled down to the need to ask the
question: is the person deprived of their liberty? If so: is it necessary and
proportionate, by establishing unsoundness of mind of a nature or degree,
considering the person’s interests and that of the public, to continue their
detention? Finally, following from the positive duty under Article 5, are there
grounds for departing from the Code of Practice to end the detention under Sec.136?
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