Monitoring detention under the MHA and the MCA

Today the CQC published their latest annual report on the Mental Health Act (MHA). As with their last report, it gives a detailed whole-system analysis of the functioning of the MHA, with particular attention to the experiences of detained patients, and how effectively their rights are being protected. In my (admittedly quite idiosyncratic) view, the CQC’s monitoring of the MHA is one of its greatest strengths. It is no exaggeration to say that its work in the field of detention monitoring for mental health is world leading, and reflects the considerable experience, knowledge and independence of the MHA commissioners at the CQC. I wanted to use this post to explore what exactly makes the CQC so strong in this field, and what we could usefully learn from this to apply to how the deprivation of liberty safeguards (DoLS) under the Mental Capacity Act 2005 (MCA) are monitored. One thing that will, I hope, become clear in this piece is that the CQC face a considerably greater challenge in monitoring the DoLS than the MHA. A lot of the infrastructure that CQC rely upon in their monitoring role simply isn’t there (yet) for DoLS to enable a whole-system analysis. To put this in perspective, the MHA is in its third decade, the DoLS are tottering into their third year, and so things may well change in the future. 

Strategic litigation by the EHRC

The Equality and Human Rights Commission was established in 2007 to promote and enforce equality and human rights laws in the UK.  It replaced three well respected predecessor bodies: the Racial Equality Commission, the Equal Opportunities Commission and the Disability Rights Commission.  The EHRC has powers to conduct formal inquiries, to bring judicial review proceedings to prevent breaches of the Human Rights Act 1998, to undertake legal policy work including briefing ministers and parliament on human rights issues in draft legislation.  It also has powers to intervene in particular legal cases, where it feels important equality or human rights principles are at stake.

I wrote to the EHRC some time back asking whether it might consider sharing its written submission in the Court of Appeal hearing of P & Q v Surrey County Council (on appeal from the High Court ruling MIG & MEG).  The EHRC was under no legal obligation to share these submissions, as documents relating only to court proceedings are subject to an exemption under s32 Freedom of Information Act 2000.  However, the EHRC didn't only share it's submissions in P & Q with me, but also some very interesting written submissions in several other cases relating to mental health, mental capacity and human rights.  It's a common source of frustration for legal researchers that we have little access to court documents beyond the published judgment, so it's a wonderful opportunity to see some of the arguments that were put before (or will be put before) the courts, but which may not have been addressed or mentioned in the final judgment.  It's also a great opportunity to read some high quality legal reasoning produced on behalf of the EHRC.  I am very grateful to the EHRC for sharing them with me, and also pleased they're happy for them to be shared more widely on this blog.

EHRC written submissions in P & Q (MIG & MEG)

The EHRC intervened in the P and Q case at the Court of Appeal.  I've written previous posts about the judgment in the High Court, and the Court of Appeal, so I won't repeat any details of the case here.  As I understand it, permission to appeal in the Supreme Court is being sought (the outcome on permission should appear here in the next few weeks/months), and I hope the EHRC will also intervene at that point.

You can read a copy of the written submission here.  It was drafted by Paul Bowen at Doughty Street Chambers.  Bowen has been involved in lots of very high profile and important cases, including the Bournewood judgment itself and another important deprivation of liberty case JE v DE (2006).  In the Court of Appeal ruling, it was held by Lord Justice Wilson that absence of objections by the relevant person pointed away from their being deprived of their liberty [25].  The EHRC submission prepared by Bowen explicitly cautioned against this approach:

P's lack of objection to remaining may be a consequence of the measures placed upon her and her particular suggestibility or other vulnerability. This is one reason why it does not follow that, because P's objections are relevant in determining there is a DOL, P's lack of objection is also relevant in determining there is no DOL. P's lack of objection may be mere acquiescence in the face of the restrictions placed upon her, which is a reason for concluding those restrictions do give rise to a DOL rather than the opposite

I find this argument very attractive.  I and others have expressed concerns that the Court of Appeal ruling could leave people with very limited communication abilities without the protection of the safeguards.  Bowen's argument takes this one step further.  Even if people are physically able to communicate objections, the effect  of the restrictions placed upon them may be such that they acquiesce to them under pressure, and feel mentally or emotionally unable to express dissent.  Sociologist Erving Goffman called this effect 'institutionalisation', or - more dramatically - 'mortification of the self'.

John Wadham is the Group Legal Director at the EHRC, and in addition to the written submission prepared by Paul Bowen he drafted his own witness statement, which you can read here.  He expressed particular concern that the deprivation of liberty safeguards framework did not extend to children (MEG, now Q, was 17 at the time of the High Court hearing), and the potential for abuse where there is no external scrutiny of the treatment of vulnerable incapacitated children.  The Commission proposed an alternate procedure for children, whereby if the local authority has reason to believe deprivation of liberty may be taking place, they should conduct an assessment and appoint an advocate.  If either the local authority or the advocate do not find the restrictions proportionate, they should apply to the Court of Protection for a ruling on its lawfulness.  The Court of Appeal made no comment on this expression of concerns; perhaps it will be taken up by the Supreme Court.

Written submission in A Local Authority v A (A Child)& Anor [2010]

This was another extremely important case in the High Court, heard by Lord Justice Munby.  In A Local Authority v A Munby LJ was asked to determine whether an adult (C) and a child (A) with Smith-Magenis Syndrome, who were cared for by their parents in the family home, were deprived of their liberty.  A and C required constant supervision to keep them safe, and their parents locked them in their bedrooms at night.  According to expert testimony in the judgment this was the best way to ensure that A and C were kept safe at night whilst their carers got the sleep they needed to continue to support them at home.

The ruling is an extremely important one, I have not yet written about it here because my own views on it are still evolving and frequently change.  It raises such complex issues around the proper scope and purpose of Article 5, the relationship between families and the state, the very meaning of 'liberty' and the purpose of any safeguards to protect against arbitrary infringements.  Munby LJ sets out procedures to be followed by local authorities if they suspect that a person may be deprived of their liberty in the family home, creating a new aspect of the doctrine of positive obligations under Article 5.  It has to be said the judgment is rather less clear as to what might constitute deprivation of liberty in the family home.  Munby LJ emphasises that restrictions that promote a person's welfare, in the context of a loving family home, are far removed from the paradigm case of deprivation of liberty [150].  The difficulty that some of us have struggled with is how you resolve this with the provisions of Schedule A1 that say restrictions upon liberty, and deprivation of liberty, may only be permitted in a persons' best interests.  I suppose the problem that Lord Justice Munby and the courts more widely would have struggled with had they found otherwise is the extreme political toxicity of saying that parents who are doing their best to support family members with profound disabilities and challenging behaviours are depriving them of their liberty by keeping them safe.  One can only imagine how certain quarters of the press might react to dedicated carers having to seek authorisation from the court to "detain" those they care for, and perhaps with some reason.

In any case, here is the EHRC's submission to this case.  Again, it was drafted by Paul Bowen.  I notice that in finding that the state has positive obligations to protect people from violations of their Article 5 rights by private parties, Munby LJ has drawn heavily from Bowen's submission.

RP v United Kingdom

The EHRC also shared with me their written submission in a case that has yet to be heard before the European Court of Human Rights: RP v UK.  The case is one that has a certain amount of notoriety in the legal world, because it resulted in a Court of Appeal judge, Sir Nicholas Wall (now head of the family courts), heavily criticising the actions of John Hemming MP for his involvement in the case as RP's McKenzie friend.  You can read the somewhat infamous judgment; some of the exchanges reported are quite revealing  regarding the relationship between Hemming and the courts, particularly in the light of the events of the last few weeks.  The case concerned a young woman called RP, whose baby was subject to child protection proceedings.  As a result of a mental capacity assessment, which Hemming and RP herself dispute, RP was found to lack the capacity to conduct litigation in the proceedings and the Official Solicitor (OS) was appointed to conduct her case as a litigation friend of last resort.  The final outcome of the court proceedings was that RP's child was placed for adoption.  However, separate proceedings were brought by RP herself as a litigant in person, assisted by John Hemming as her McKenzie Friend, on the basis that her right to a fair trial under Article 6 was violated.  There is something extraordinary in the fact that an appeal could be brought by a litigant in person, when she was said to lack the mental capacity even to instruct a solicitor.  However, the court felt that there were important matters of principle at stake, so the appeal was allowed.

In thinking about this case it would be very easy to get distracted by a senior judge castigating an elected member of parliament.  It would also be very easy to get distracted by some of the more bizarre claims made by John Hemming reported in the judgment.  However, there are elements of the case that do give some cause for concern.  There are a few passages in the judgment where it appears that RP's solicitor and the OS made decisions on the basis of what they felt were in the best interests of RP's child, rather than RP herself (see paragraphs 77 and 160 of the judgment).  Perhaps it's because I'm more familiar with Court of Protection cases than the family courts, but it did strike me as odd: I would have thought that the role of the OS was to champion RP's rights and her best interests, and it is up to the local authority to make the case on behalf of her child's best interests.  It seems that the EHRC were also concerned about this aspect of the case, as they have decided to intervene in a legal challenge to the judgment at the European Court of Human Rights.

The EHRC's written submission to the Strasbourg Court expresses concern on several grounds.  The submission is drafted by Helen Mountfield from Matrix Chambers; Mountfield was involved in the case YL v Birmingham City Council, concerning whether care homes were 'public authorities' bound by the Human Rights Act.  The EHRC argued that families with parents with  learning disabilities are not offered adequate support to care for their children themselves before the commencement of child protection proceedings, and that this might be in breach of their Article 8 rights.  They cite a range of evidence that parents with learning disabilities are poorly supported in the community.  I have some limited experience of working in a family assessment centre that assessed some parents with learning disabilities for child protection proceedings; I have to say I saw little to refute the EHRC's concerns about the amount of support available in the community to parents with learning disabilities - but they may have been isolated examples.  It would be interesting to see whether the European Court of Human Rights is prepared to extend the positive obligations of the state in this direction, given it would certainly place a significant financial burden on the public authorities who would be in a position to offer that support.

The second grounds for concern raised by the EHRC are regarding the role of the OS himself.  Undoubtedly the OS plays an extremely important role in upholding the rights of people who are unable to conduct litigation; there are many cases I can think of where the OS's intervention has upheld the most fundamental of rights on behalf of people who were unable to do so for themselves.  These include a case where a hospital had actually begun to withdraw treatment from a patient without seeking the Court of Protection's determination first; the OS's intervention meant that he then went on to make some recovery.  The Steven Neary case being fought this week in court is, in no small part, down to the work of the OS.  The OS also acts on behalf of children, and I wonder if this led to some blurring of the boundaries in this instance, where the OS appeared to take the child's best interests into account.  The EHRC express concerns that this was a breach of RP's own Article 6 rights:

...the case they put forward must be focused solely on the needs and wishes of the parent. That is not to say that the litigation friend cannot put forward a case which departs from the case which would be advanced by the learning disabled persons if they were representing themselves. It may be that the Official Solicitor does not consider that case to be in his or her best interests. But the focus should be on that person’s interests, alone. It is not the role of the Official Solicitor or other litigation friend to balance the interests of the parent and the child. If and to the extent the parent is represented by a litigation friend who seeks to present to the court an opinion as to what is in that person’s best interests “balanced” with what is in the child’s welfare, there is a breach of Article 6 and/or Article 8 and/or Article 14 ECHR. The litigation friend’s sole role is to promote the best interests of the person for whom they are appointed. Promoting the child’s interests is the role of the child’s legal representative, and deciding on whether the best interests of the child and the interests of the parent are opposed is the duty of the court.

A third area of concern raised by the EHRC is that there is no mechanism to displace the Official Solicitor:

[22] ...it should be recognised that litigation capacity can fluctuate or alter. Loss of litigation capacity is a very serious a matter. So where, as here, there is a mechanism whereby an official litigation friend can be appointed against the litigant’s will, there should also be a formal mechanism prescribing the circumstances in which, the evidence upon which, and time or means by which, the litigant deemed incapable can apply to have that decision set aside. The absence of such a mechanism constitutes a disproportionate infringement of the right of access to a court protected by Article 6.

[23] Whilst the Commission casts no doubt upon the good faith of the Official Solicitor or any of the experts instructed in the present case, it considers it to be institutionally unsatisfactory for there to be no such formal procedure. Once a person has been declared to lack litigation capacity, under the present system there is no means of his reacquiring it unless the Official Solicitor or the solicitor instructed by him on behalf of the litigant considers that the litigant may have recovered the capacity. There is no procedure for the litigant him or herself to raise the question, or to seek a further expert’s opinion, and no obvious mechanism requiring a review where, as here, the litigant produces an ostensibly plausible report from a Consultant Psychiatrist who expresses the view that she does have capacity. '

To the possibility of litigation capacity fluctuating or altering, we should probably add that opinions on whether a person has litigation capacity may - at the borderline - be a matter of dispute.  In a recent case V v R (2011) the Court of Protection was asked to decided whether V had litigation capacity.  Her mother doubted  that she did, whilst the defendants (perhaps unsurprisingly) felt that V had capacity to run her case against them.  Once it has been determined that a person lacks litigation capacity there seems to be no straightforward mechanism to displace the OS if they are acting on their behalf.  In cases as contentious as child protection proceedings, one can see how this can lead to discord between the parent and their legal team, and a feeling of powerlessness and perception of injustice. This sense of powerlessness could leave vulnerable people inclined to seek less appropriate sources of support.  According to the admissibility decision in Stanev v Bulgaria, the UK may be in the minority of Council of Europe states in having no legal mechanism whereby people deprived of legal capacity can apply directly to the courts for discontinuation of the measure (see paragraph 78).  I understand that the research this claim was based on was undertaken by the ECtHR itself; I have contacted them to ask for a copy of the research report.

Robert Seal v United Kingdom

I am ashamed to say I had not heard of this case before the EHRC shared their submission to the ECtHR with me.  The case concerns a provision of the Mental Health Act 1983, s139, which in requires detained patients to seek the permission of the High Court before bringing any civil case "in respect of any act purporting to be done in pursuance of" the Mental Health Act.  Robert Seal claimed he had been prevented from bringing a case against the police for unlawful detention as a result of the provision meaning that he was out of time.  In Seal v Chief Constable of the South Wales Police [2007] in the House of Lords, Lord Bingham commented:

Parliament must, in legislating as it did, have recognised the risk that hard cases, such as Mr Seal's, may occur, but have considered the occasional occurrence of such a case to be a price worth paying for the reassurance and protection given by sections 141 of the 1959 Act and 139 of the 1983 Act to those whose very important and often difficult task it is to care for the mentally ill.

Baroness Hale and Lord Woolf dissented from the decision.  The EHRC's submission was written by David Wolfe at Matrix Chambers; Wolfe has been involved in several important human rights cases including the right to treatment case concerning 'baby Charlotte'.  The Commission argued that s139(2) created a barrier to justice that was not a proportionate interference with the Article 6 rights of detained patients, commenting that it 'treats disabled persons as second class citizens without any justification'.  The ECtHR pronounced its judgment in December 2010, where it found that Seal's Article 6 rights had not been infringed.  The basis for the court's ruling appears to be primarily that Seal did not provide an explanation for why it took him from 1997 until 2003 and "the very eve" of the expiry of the limitation period, to commence proceedings against the  police.  In their view, Seal had been unable to bring his case not as a result of this measure, but the unexplained delay on his part in bringing a claim.  The court did not, therefore, give extensive consideration to whether the measure itself was discriminatory and a potential infringement of the Article 6 rights of detained patients more generally.

The future of strategic litigation by the EHRC

The government is currently consulting on reforms to the Commission.  You can read more about the government's proposals and the EHRC's response to them here.

CQC functions to prevent torture and inhumane or degrading treatment under threat?

In a report published this month by the Ministry of Justice, that is probably likely to pass under the radar of most people concerned with issues of community care, a very ominous warning was sounded:

In an organisation of CQC’s size and broad scope, there will always be a tension between the different functions it performs. In 2010–11, an internal restructuring of CQC threatens some roles dedicated to the monitoring of the MHA. A review of visits to those detained under mental health law is also underway, although this is designed to enhance effectiveness. As CQC’s overall budget comes under pressure it will be a challenge to maintain its focus on its OPCAT-related work. (p33)

Anyone concerned with the rights of people who are deprived of their liberty in psychiatric hospitals, ordinary hospitals, care homes or any other sites of care should sit up and take notice of this.  In fact, you should take out your pens and start writing and asking the CQC exactly what this comment is all about.  Essentially, the author of this section of the Ministry of Justice report is suggesting that vital functions carried out by the CQC are under threat due to austerity cuts and restructuring.  What CQC function could possibly be more important than ensuring the most vulnerable people cared for in hospitals and social care are not subjected to torture, or inhumane or degrading treatment?

What is this report all about?

In 2002 a United Nations treaty came into force called the ‘Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, or OPCAT for short.  The United Kingdom ratified OPCAT in 2003.  The treaty requires all signatories to establish ‘National Preventive Mechanisms’ to carry out regular inspections of any places where people are deprived of their liberty to ensure they are not being abused.  Most public and academic discussions about OPCAT concern visits to prisons, police cells, immigration detention centres etc.  However, OPCAT also covers people who are deprived of their liberty as a result of illness or disability.  OPCAT reflects, at an international level, an understanding that people who are deprived of their liberty are extremely vulnerable, and are at excessive risk of ongoing and unnoticed abuse of their most basic human rights.  Think, for instance, of the torture and abuse of prisoners in Abu Ghraib prison in Iraq.  Think, more close to home, of the abuse suffered by adults with learning disabilities in supported living services in Cornwall, uncovered by the Commission for Social Care Inspection in 2005.  I am sure you can think of other cases in the news, or perhaps in your own experience, unprompted.

CQC inspections in hospitals and care homes

Each OPCAT signatory nation can choose how they establish their own preventive mechanism.  In the UK, there were already many systems in place for inspecting most sites of detention, from Her Majesty’s Prison Inspectorate to the Independent Custody Visiting Association.  In total, 18 organisations in the UK make up our National Preventive Mechanism to ensure detainees of all kinds are protected from torture and abuse (see list of them here).  One of these is the Care Quality Commission (CQC).

Before the CQC was formed in 2008, the Mental Health Act Commission (MHAC) was charged with making unannounced inspections of psychiatric hospitals to ensure the rights of patients detained under the Mental Health Act were upheld, and they were being well treated.  The MHAC was the last in a long line of commissions dating back to the Physician Commission, established under the Madhouses Act 1774 to visit madhouses and ensure patients were not being mistreated, and were not inappropriately detained.  This essential function of visitation to ensure detainees in sites of care were not being mistreated has been carried out by a range of commissions over the centuries and its functions are now absorbed by the CQC.

The Mental Health Act Commission was particularly noted for producing excellent biennial reports into the state of care in Britain’s psychiatric detention facilities.  You can still read some of them online here (2003), here (2005), here (2008).  The reports were extremely revealing about the darker side of psychiatric detention, and most likely made uncomfortable reading for many in Whitehall and government.  They have brought to light shocking standards of care.  The 2008 report, containing a list of disturbing incidents (p19), makes gruesome reading: patients who are secluded 90% of the time; patients in overcrowded wards sleeping on the floors of doctors offices; vulnerable women housed on wards where they are sexually abused; a dying man nursed in a dining room whilst other patients eat in there. 

As was increasingly recognised following the Bournewood judgment, people are not only deprived of their liberty in psychiatric hospitals.  The deprivation of liberty safeguards were established to protect the rights of people who are detained in hospitals and care facilities without the protections of the Mental Health Act.  Reading the Ministry of Justice report this month, it was clear that as far as monitoring and rights protection goes, the deprivation of liberty safeguards are very much the poor relation of the Mental Health Act.  The CQC merely noted that their use was ‘limited’; there was no detailed discussion of the living conditions and rights of those detained under the safeguards.  There seems to me no reason to believe that standards of care are higher in these detention sites; indeed, the steady trickle of reports of abuse in care homes and supported living in the media might lead us to believe they are worse.  As has been raised in the past many times by the MHAC themselves, people who are deprived of their liberty in any setting are vulnerable; where these people are disabled or suffer from mental illness, that vulnerability is exacerbated.  The MHAC in fact once cautioned against any sites that detain people with learning disabilities being relatively free of external visitation (here, 3.33).  Since then, levels of visitation in care homes have in fact dropped, and will drop further still (read this article for a discussion of this issue).  Except in exceptional circumstances, supported living services which fall under 'domiciliary care' provision are not subject to site visits at all.  The CQC is increasingly switching over to a ‘light touch’ regulation model which relies upon self-assessment – how many people could honestly believe that incidents like those listed above would be reported this way?

I think there is a very serious question, that has not as yet been publicly addressed by the CQC, as to whether the inspection regime regarding people who are deprived of their liberty under the Mental Capacity Act complies with OPCAT.  Put bluntly: there is a serious question whether the inspection regime for these detainees would be recognised as sufficient in international law as preventing inhumane or degrading treatment.  Any failure to comply with OPCAT would cast serious doubts over the CQC's, and indeed the UK as a whole, compliance with their positive obligations under Article 3 of the European Convention on Human Rights.

Over the years the Mental Health Act Commissioners have championed the rights of all detainees, and tried to draw attention to the particular issues faced by detained women, children, black and minority ethnic groups, as well as the dearth of protection of de facto detainees like HL in the Bournewood judgment.  When the Commission was wound down to become absorbed into the CQC they wrote that they were ‘reassured’ that their functions were not to be diluted, that their ‘warnings’ about the risks that would follow the loss of such functions were heeded (final report, 2009, p12).  The comments in the Ministry of Justice report this month suggest that they breathed a sigh of relief too soon.  Is the passage quoted above the last gasp of the Mental Health Act Commission?  A signal that we may be reaching the end of the road in a long history of visitation of sites of detention to protect the most basic rights of the most vulnerable members of our society?

I can find no coverage of this issue elsewhere.  I can see nothing on the CQC’s website that reflects a possible retraction of their visiting scheme.  But this report signals clear rumblings from within the CQC that some of its most vital functions may fall under the axe of austerity.  For anyone who sees value in preventing inhumane and degrading treatment of vulnerable people deprived of their liberty in our hospitals and care homes, I suggest you pick up your pens, and ask them what this is all about.