New perspectives on the Mental Health Act

Mental Health practitioners will occasionally have to look to authorities outside of the provisions of the Mental Health Act 1983 (MHA 1983) for guidance. But now the Act has been amended, that job will be more onerous, and the extrinsic sources will be more diverse and perhaps more troubling.

A public place

Anyone who works with MHA 1983 must know what it means for a place to be public. A police constable, for example, can arrest someone who appears to be suffering from mental disorder and remove him to a place of safety. But that power is only available in 'a place to which the public have access' (MHA 1983, s.136(1)).

There are few MHA 1983 cases that define this term. In one of them, the court held that it would include a communal balcony in a block of flats (Carter v Metropolitan Police Commissioner [1975] 1 WLR 507). There is also official guidance.

Notes accompanying the amended MHA 1983 say that 'a 'public place' can be taken to mean any place (whether indoors or outdoors) to which the public have access, whether by right, by explicit or implied permission, on payment, or otherwise' (Department of Health, 2008, Reference Guide to the Mental Health Act 1983, paragraph 30.17). The notes invoke a variety of '“ often criminal '“ authorities, and practitioners will need to be familiar with each of them if they are to understand the removal power properly.

With regard to the front garden of a private house, for example, we know that it will only fit the bill if members of the public can enter it without invitation (R v Bogdal [2008] EWCA Crim 1); and that in the case of a very small garden, it will not be sufficient that someone standing there could reach a pedestrian on an adjoining highway (R v Leroy Lloyd Roberts [2003] EWCA Crim 2753).

But we only know this because of cases decided under the Public Order Act 1936 (R v Edwards [1978] 67 Cr App R 228), the Criminal Justice Act 1988 and the Dangerous Dogs Act 1991.

Various motoring cases are also relevant. So, for example, decisions under the Road Traffic Act 1988 have established that a pub car park is a public place, at least during opening hours (David Lewis v DPP [2004] EWHC (Admin) 3081), and that the same is true of parking next to commercial premises (May v DPP [2005] EWHC (Admin) 1280). Now, however, these cases will not be the practitioner's only point of reference.

Deprivation of liberty

One of the most significant features of the new MHA 2007 is the Deprivation of Liberty Safeguards (DoLS). The DoLS have been inserted not into MHA 1983, but into the Mental Capacity Act 2005 (MCA), but once they come into force, they will take a significant place in the work of mental health practitioners (MHA 2007, s.50 and sched.7; MCA, sched.A1).

The MCA provides a framework within which all kinds of care and treatment may be provided to people who lack the capacity to consent to it. If it is in his best interests, an incapable person may be admitted to a hospital or care home without recourse to MHA 1983. The novelty of the DoLS lies in the fact that they might allow the person to be deprived of liberty in that place, but only if official permission is obtained first.

If they are to seek permission '“ and thereby avoid wrongfully imprisoning an incapable person '“ practitioners will need to know that it is required and, therefore, what it means for a person to be deprived of liberty. In that respect, the mental heath authorities only go so far.

Bournewood

For many years, it was the practice to use the common law doctrine of necessity to confine incapable people to hospital and care homes in their own best interests. In the Bournewood case, however, the European Court of Human Rights (ECtHR) held that this would breach Art.5 of the European Convention on Human Rights (ECHR) (HL v United Kingdom, Application number 45508/99, decision of 5 October 2004). The DoLS are the government's response.

For the moment, Bournewood provides the best guidance on what it means for a person to be deprived of liberty. The case concerned Mr L, who lacked capacity. He was never prevented from leaving the hospital to which he was admitted; in fact, he never attempted to do so. His psychiatrist simply said that if he had attempted to leave, he would have been detained under MHA 1983. Furthermore, Mr L was prevented from seeing members of his family. This proved to be very significant. The ECtHR said that hospital staff had assumed complete control over Mr L, and that in doing so, they had deprived him of liberty.

The DoLS code

The government has published a code of practice to accompany the DoLS (Ministry of Justice, 2008, Mental Capacity Act 2005: Deprivation of liberty safeguards). The code draws particular attention to Bournewood, and to other, similar cases in which the ECtHR or the domestic courts have given useful guidance (for example: Nielsen v Denmark [1988] 11 EHRR 175; HM v Switzerland [2002] 38 EHRR 314; Storck v Germany [2005] 43 EHRR 96; JE v Surrey County Council [2006] EWHC (Fam) 3459) But it makes no mention of many other cases that might be relevant.

Conditional discharge

MHA 1983 contains special provisions for people who suffer from mental disorder and are convicted of a criminal offence. If necessary to protect the public from serious harm, such a person may be placed under restrictions in hospital and conditions may be attached to his eventual discharge (MHA 1983, s.41(1)). Those conditions must not, however, deprive the patient of liberty.

The High Court has held that to impose a condition requiring a patient to remain at the hospital from which he had ostensibly been discharged will amount to an unlawful deprivation of liberty (R (G) v Mental Health Review Tribunal and the Home Secretary [2004] EWHC (Admin) 2193), and also, that if they are very strict, even community arrangements might have that result (R (Home Secretary) v MHRT [2004] EWHC (Admin) 2194). But similar facts had earlier led the court to the opposite conclusion (R (Home Secretary and PH) v MHRT [2002] EWCA Civ 1868).

It is to be expected that decisions about the care of some mental health patients will be relevant to those subject to other provisions of MHA 1983. Soon, however, attention will have to be paid to decisions from an entirely different area of law.

In the case of an incapable person who is deprived of liberty, it seems that the DoLS will only apply if he is also detained (MCA, Schedule A1, clause 1(2)). Crucially, the ECtHR accepted in Bournewood that the two things are not the same. The domestic courts have reached a similar conclusion and, further, have ruled that a person might be detained without being deprived of liberty, and vice versa (R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; Austin and Saxby v Metropolitan Police Commissioner [2007] EWCA Civ 989). Although the ECtHR ruled that Mr L had been deprived of liberty, the domestic courts found, narrowly, that he had not been detained. This suggests that the protection of the DoLS would be denied to the very patient that inspired them. But that is not the end of the story.

Control orders

The government has long been frustrated by those people whom it suspects, but cannot prove, to have been involved in terrorism. The latest of several attempted solutions is the control order, under which such a person may be made subject to often stringent conditions. Crucially, however, because by definition those conditions cannot engage Art.5, they must not amount to a deprivation of liberty (Prevention of Terrorism Act 2005).

One control order case concerned a man whose conditions were so strict that they were said to have damaged his mental state: he lived in virtual solitude and was becoming increasingly hopeless and having suicidal thoughts. The High Court held that the conditions were a proportionate response to the threat the man posed (Mahmoud Abu Rideh v Home Secretary [2007] EWHC (Admin) 2237).

For present purposes, however, the most significant decision was made by the House of Lords. It concerned six men, whose control orders confined them to their one-bedroomed flats for all but six hours a day; allowed those premises to be spot-searched by the police; restricted the areas the men could visit when out-of-doors and required them to wear electronic tags; limited their use of communications equipment; and prohibited them from meeting anyone not authorised by the Home Office.

Drawing on some of the ECtHR cases mentioned in the DoLS code, their Lordships found that the orders had breached Art.5 (Home Secretary v JJ [2007] UKHL 45). They reached the opposite conclusion, however, where the conditions imposed on a suspect were less robust (Home Secretary v E and S [2007] UKL 47).

The question of what constitutes a deprivation of liberty is common to both the DoLS and control orders, and both processes are similar to conditional discharge, which has been a feature of the MHA for many years. It is understandable, therefore, that cases from one of those areas should be relevant to the others.

This comparative approach is common in legal practice. Until now, however, its use within mental health legal practice had been very limited: for the most part, the relevant law was contained in the MHA and the cases decided under it. That seems likely to change, and in a dramatic way.

If the new safeguards are to be worthy of the name, practitioners will need to know precisely when they should be applied. But that begs a new question: should we be concerned by the fact that, for a time, we will best understand what to do with incapable patients by knowing what the state already does to those it considers terrorists?