Positive public discussion of at least some of the most common mental health has scarcely been higher. Tireless work by campaigning organisations such as Mind, Scope, the Time to Change initiative has started to gain traction in the movement to reduce the stigma around mental illness, as prominent public figures have shared their own experiences of mental ill-health. All that and a week on from Mental Health Awareness week made this discussion of mental health law and human rights particularly timely.
The discussion was arranged by the Young Lawyers’ Committee and chaired by Ranette Prime of the HRLA Executive. Drawing on both academic and legal experience, the panel was comprised of Victoria Butler-Cole barrister at 39 Essex Street, Professor Jill Peay of the LSE and Oliver Lewis, formerly chair of the Mental Disability Advocacy Centre and Associate Barrister at Doughty Street Chambers.
The main unifying theme across the disciplines was the distance between legal theory and practice and the practical realities faced by those experiencing mental ill-health or affected by a learning impairment; not just in England and Wales but globally. On the home front, there are seminal cases such as Cheshire West. Here, the Supreme Court released thousands of individuals without capacity from the gilded cages of being deprived of their liberty but this prompted what Victoria Butler-Cole described as a “social care meltdown”. This was a case which, on the one hand was heralded for its practical recognition of the ways in which individuals can be deprived of their liberty, whether they are aware of it or not. However, it has been equally criticised by others for prompting a regulatory regime which is impractical for and disproportionate to many cases. As Butler-Cole put it, “Cheshire West looked like a great victory but in fact resources are arguably being diverted from care funds in order to pay for legal costs associated with complying with the requirements of the decision.”
Sometimes though, local authorities do not help themselves. The case of Steven Neary was the case in point. Neary was held on not one or two but 4 successive Deprivations of Liberty (DOLs), authorised by the local authority. However, as soon as the Court of Protection had sight of the case, Neary was released, giving rise to one of the highest profile campaigns against the lack of transparency in COP proceedings. You can read more about the experience of Steven and his family here: http://www.lag.org.uk/magazine/2014/07/the-court-of-protection-steven-neary%27s-story.aspx
For those who are unfamiliar, the Court of Protection (COP) is the body of judges (it’s not actually a physical court) who decide cases under the Mental Capacity Act 2005, which in turn is the law which is designed to safeguard the “best interests” of individuals who are assessed as lacking the capacity to make certain decisions for themselves. For most of its first 10 years, the workings of the court were shrouded in mystery. As the court sits in private, does not always give public judgments and when it does, does so having anonymised the parties, this was almost inevitable. One obvious difficulty with that is that it doesn’t sit easily with our principles of open justice. That has left it open to public criticism and, in some quarters, outright vilification. In more recent years however, Mr Justice Munby, who is the head of the court, has prompted greater transparency by increasing the number of judgments which can be made publicly available and contributing to various initiatives to increase public awareness and understanding of the Court’s work.
That can be seen in the increasing number of the Court’s cases which are covered in the press. They tend to be those cases where the Court is literally asked to make a life or death decision: should a person be forced to have life-saving treatment?; Should life-sustaining treatment be stopped? But they aren’t actually necessarily the most revealing cases. As Butler-Cole observed, it is the cases where the Court is asked to make a decision about whether or not a person has capacity to make a decision and, if they don’t, how the court decides what is in that person’s best interests, where you really see the court at work.
Whilst Mental Capacity Act 2005 ss 4 and 5 set out the factors which have to be considered in assessing capacity and best interest decisions respectively, the Act itself is has no guidance on how those factors should be applied in practice. To some extent, that gap is filled by the code of practice that comes with the MCA but, as many practitioners will attest, that doesn’t always score many points for practicality either. The result? Ask 10 judges to rule on what is in a person’s best interests and risk 10 different answers.
Professor Peay talked about similar problems arising at the intersection of mental health and criminal justice. The classic examples are demonstrated by the application of the criminal rules on insanity and unfitness to plead, which bear almost no resemblance to contemporary clinical understanding of mental illness. That often means that judges and psychiatrists are at odds because psychiatrists will typically (and unsurprisingly) assess issues such as fitness to plead from a clinical perspective rather than a specifically legal one. That said, Professor Peay also suggested that there was now more concern for the human rights of suspects and defendants than in the past. Although, there are those who might argue that that success is relative, at best. For her part, Peay felt that not only had their been improvements in criminal justice but that the criminal courts have made more progress than the civil ones.
Oliver Lewis offered a global perspective. His work with MDAC had taken him around the world and given him a first-hand perspective on mental health treatment across continents. It was in that context that the distance between principle and practice was set as being even more acute. There were countries where the prevailing view of mental ill-health was still seen as the work of the devil, where people had been abandoned in large numbers, to hospitals which offered warehousing rather than treatment. In some countries, there was no law governing the treatment or detention of people with mental illness. As a consequence, psychiatrists were seen as gods and benefitted from the impunity that necessarily comes with that.
Importantly though, positive changes are happening. The UN Convention on the Rights of People with Disabilities (UNCRPD) has been ratified in a number of countries which have previously lacked any proper framework on these sorts of issues. In Bulgaria, for example, the ratification of the UNCRPD was said to have formed part of a national conversation on the treatment of people affected mental illness and the state’s response to that. Similarly in India where a number of new laws are soon to come into effect, which ought to provide important new safeguards.
Conceptions of disability more broadly than mental health issues have also played an important role in shifting the discourse. The much-discussed social model of disability – which holds that the real problem of disability is not any particular impairment but the refusal or inability of “mainstream” society to adapt to it – is causing people to re-evaluate the way in which they think about disability. To move away from the often negative or unduly paternalistic medical model of disability – which makes the individual with an impairment the “problem that needs fixing” – to something which has the potential to be more positive. Although, of course, neither model is without its critics.
In a notoriously gloomy area of law, it was heartening to hear the roll-call of cases which Professor Peay described as the standard-bearers in expanding the protection of human rights in mental health law:
- X v UK: held that Article 5 ECHR required mental health tribunals to be independent of the state, including having the power to discharge patients who did not meet the criteria for detention. That judgment lead to the independent decision-making powers of tribunals set out in the Mental Health Act 1983. But it also provided a precursor to more recent decisions requiring independent decision-making by the Home Secretary in the prison law context.
- R (oao H) v MHRT North and East London Region  EWCA Civ 415: it was held that requiring a detained patient to show that they did not need to be held under section was incompatible with Article 5 ECHR. It should be for the detaining authority to show that the legal conditions for sectioning some were met. This finding resulted in the first ever declaration of incompatibility under s.4 Human Rights Act 1998.
- B v DPP: The DPP decided not to prosecute a suspect who had allegedly bitten off the ear of the victim. Ultimately it was because the victim had a mental health condition, which the DPP decided undermined the credibility of any evidence he could give. That was despite the fact that the mental health condition did not affect his recollection of events. This was found to breach Article 3 ECHR, which requires the state to have an effective system for the investigation and punishment of inhuman and degrading treatment; it was unlawful disability discrimination and, on the facts, it was irrational.
- Rabone v Pennine Care NHS Trust  UKSC 2: Established that the duty of the State to take reasonable steps to prevent a person who presents a real and immediate risk of suicide from killing themselves applies to voluntary patients and not just those formally detained under the Mental Health Act 1983.
- Stanev v Bulgaria (Application no. 36760/06): The first case in which the European Court of Human Rights found that the State’s treatment of a disabled man receiving social care amounted to degrading treatment, contrary to Article 3 ECHR, amounted to a deprivation of liberty contrary to Article 5 ECHR and unlawful discrimination, contrary to Article 14 ECHR. The decision expanded the legal protection of thousands of individuals and was widely recognised as seminal in the Convention’s protection of disabled people.
Of course, every success is simultaneously a demonstration of State failure. As pressures on mental health services and community-based facilities increases, future failings feel inevitable. The levels of self-harm and suicide in prisons provides an almost daily warning from the future. To compound that point, according to Ranette Prime, the Age of Austerity has claimed 8,000 mental health nurses, waiting lists for community treatment are 6 months long and mental health budgets have been cut by an average of 8%.
There is a sense of momentum building towards the development of a healthier discourse around mental health issues. The largely sympathetic coverage of footballer Aaron Lennon’s recent admission to a mental health unit compares starkly to the ignorant screeching of the tabloids about “mad” Frank Bruno in the 90s, and is perhaps further evidence of that. Even so, “the ﾓmad, bad and dangerous” rhetoric which still laces coverage of criminal offenders with mental illnesses is just one indication that we still have some way to go. Events like this, we hope, make a small but no less important contribution to that journey.
Michael Etienne is a member of the HRLA‘s Young Lawyers‘ Committee. He is also a Trainee Barrister at Matrix Chambers.