The Consequences of Uncertainty: Risk as a Strategic Device?

With no agreed definition and minimal judicial supervision of mental health decision- making, it is submitted that the concept of risk hands practitioners using the MHA a tactical advantage. As soon as they describe a patient in terms of risk, decision-makers legitimise the deployment of the compulsory powers. As we have seen, there are few limits on decision-makers’ discretion in this regard and the courts display a high degree of deference to professional opinion. In this way, the concept of risk makes practitioners’ jobs easier by essentially bypassing legal supervision. The MHA’s risk formula therefore does not put limits on decision-makers’ power but is instead facilitative, giving practitioners a freer hand to determine how and where their patients should receive care and treatment. Consequently, risk reduces the significance of the law in mental health practice and leaves the door open for ‘strategic decision-making’,281 _{wherein a practitioner makes nominal references to risk in}

order to put into effect an outcome he wishes to achieve, notwithstanding a lack of objective evidence to support such a result. Used thus, risk sanitises decision-making that may be tainted by procedural defects or lacking an adequate evidential basis. It also implicitly legitimises psychiatric ‘abuse’, undermining psychiatry’s principal function as a critical medical specialty ‘whose goal is the betterment and welfare of humanity’.282 This is

281

See Glover-Thomas, supra n.138.

282

A.M. Freedman and A.L. Halpern, ‘Psychiatric Abuse in North America’ in R. Rosner (ed.) Principles and Practice of Forensic Psychiatry 2nd ed., New York: Arnold, 2003, at p742.

167 not to say that decision-makers acting this way do so for cynical reasons; they are more likely to be motivated by entirely good intentions but use abusive means to justify the ends. Most of all, it shows that practitioners can operate with scant regard for the law.

If the MHA is being used in a tactical way, this would be entirely consistent with the theory of New Medicalism. It would reflect the fact that mental health practice is less about achieving positive health outcomes and more about the management of risk. To what extent does the case law show that risk is used in this way?

5.1. The Courts’ Antipathy to the Creative Use of the MHA

The courts have generally taken a dim view of tactical interpretations of the MHA. A mental health decision-maker acts tactically when he uses the MHA to achieve an end that is not expressly authorised by the legislation. The best example of this is R v Hallstrom and Another, ex parte W.283

Here, W’s doctors admitted her to hospital for treatment under section 3 and released her the following day under the leave of absence provisions in section 17. W had been living in a hostel and was refusing to take her medication. Because she was admitted under section 3 and immediately granted leave of absence, W was liable to be detained for the purposes of sections 56 to 64 and therefore her clinical team could override her refusal to consent to treatment. W sought judicial review of the clinical team’s decision, contending that her doctors had really wanted to extend their power to overrule her refusal to consent and had deployed section 3 as a means to that end. McCullough J granted a declaration which stated that section 3 could apply only in accordance with the wording of the statute or not at all. His Lordship said that the concept of ‘admission for

283

168 treatment’ has no application ‘to those whom [doctors intend] to admit and detain for a purely nominal period, during which no necessary treatment will be given’.284

The court therefore rejected the tactical deployment of section 3, even though the clinical team had an apparently genuine desire to act in the interests of its patient. A similar strategic gambit was attempted by doctors in R v Wilson, ex parte Williamson,285 _{this time in respect of}

section 2. Here, the 28-day period of the patient’s admission for assessment was about to expire and the decision-makers wanted to detain him under section 3. However, his nearest relative refused to support the clinical team’s decision to use section 3, meaning that it would have to release the patient at the end of the 28-day period. Consequently, the decision-makers applied again under section 2 in order to extend the detention period and thus buy more time to displace the patient’s nearest relative. They opted for this instead of applying to the court under section 29 to appoint a new nearest relative, which would have had the effect of extending the patient’s detention until the application’s disposal.286

The court held that section 2 could not be used as a stop-gap procedure or to extend the clinical team’s powers; its sole purpose is limited to providing a legal basis for the compulsory assessment of a person with mental disorder. Hallström and Ex parte Williamson show that the courts will not allow mental health practitioners to make ‘creative’ use of the MHA. This is so even where decision-makers bend the wording of the MHA for the best motives. In GD

284

Ibid, per McCullough J at 1105. See also R (on the application of DR) v Mersey Care NHS Trust [2002] EWHC 1810 (Admin), where it was held that a patient’s period of leave could be extended under the MHA 1983 provided that a ‘significant component’ of his interaction with his clinical team took place in a hospital setting.

285

Independent, 19 April 1995, QB.

286

169 v The Hospital Managers of the Edgware Community Hospital,287

the patient’s clinical team did not consult with his nearest relative in accordance with section 11(4) until the very last moment. The team feared that the patient’s nearest relative had not acted in his best interests in the past and sought to proceed without a consultation. Burnett J held that this course of action had seriously inhibited the chances of the nearest relative having any effective input in the patient’s care and treatment. As a result, the clinical team’s actions amounted to a misuse of power which affected the entire application process. His Lordship said that it was irrelevant that the team had acted ‘for the best motives’;288

Parliament clearly intended that the nearest relative play a practical role and it was not open to the decision-makers to undermine his participation in the process.

The same rule against the tactical use of the MHA applies at the other end of the compulsory care and treatment process. In R (on the application of Von Brandenburg) v East London and the City Mental Health NHS Trust,289

the claimant had been initially admitted to hospital under sections 4 and 2. He applied to the MHRT under section 66(1)(a) for discharge, which was subsequently granted under section 72. After the tribunal’s ruling – but a day before the patient’s release from hospital – a social worker applied with the support of two doctors under section 3 to admit the patient to hospital for treatment. The claimant applied for judicial review. The House of Lords held that a social worker could not apply for a patient’s admission to hospital under the MHA solely because he had disagreed with the decision of the MHRT. The only basis on which a social worker could reapply for the

287

[2008] EWHC 3572 (Admin).

288

Ibid, per Burnett J at para.51.

289

170 patient’s admission to hospital is where he reasonably and in good faith considers that he has information that was unknown to the tribunal which would put a significantly different complexion on the case. Lord Bingham explained that the MHRT’s power of discharge under Part V of the MHA ‘would plainly be stultified if proper effect were not given to tribunal decisions for what they decide… [because of] those making application for the admission of a patient under the Act’.290 _{It is clear that the courts will interpret the MHA literally and will}

not allow mental health practitioners to distort the legislation as a strategic ruse which runs counter to the letter and spirit of the statute. Indeed, this rule works both ways: in R (on the application of O) v Mental Health Review Tribunal,291

the High Court said that an MHRT can refuse to allow an applicant to withdraw his application for discharge if this action appears to be a tactical ploy. Here, the court was concerned that patients could withdraw their applications for discharge in anticipation of an unfavourable ruling from the MHRT and then reapply with a view to being heard by a more sympathetic panel.

Yet, it is important not to regard the courts’ antipathy towards the tactical use of the MHA as a symptom of judicial obstruction of mental health practice generally. The courts have drawn a distinction, albeit a fine one, between broad interpretations of the MHA, which are legitimate, and tactical decision-making, which is not. In part 4.2.1, we saw how Lady Hale interpreted section 63 MHA in such a way as to allow doctors to administer medical treatment without the patient’s consent in R (on the application of B) v Ashworth Hospital Authority, notwithstanding procedural irregularities in his initial admission. A

290

Ibid, per Lord Bingham, at para.8.

291

171 similar approach can be found in Tameside and Glossop Acute Services Trust v CH292

and B v Croydon Health Authority,293

where the courts interpreted ‘medical treatment’ broadly in order to bring a Caesarean section and feeding by means of a naso-gastric tube within the ambit of the MHA respectively. While the objectives sought in these cases were arguably also achieved tactically, they neither entailed a stretching of the wording of the MHA nor an ulterior motive by decision-makers. It seems that the courts are happy to allow mental health practitioners to be flexible in their interpretations of parts of the MHA, provided they do so in good faith.

5.2. Risk Exceptionalism?

Risk’s lack of definition, its status as a matter of fact, and the courts’ reluctance to review practitioners’ decisions culminate in what one might call ‘risk exceptionalism’ in mental health law. The concept is an exception to the normal procedural rules and it effectively circumvents the oversight of the law. Nowhere is this clearer than in the case law of the ECtHR. According to Article 5(1) of the Convention, everyone has the right to liberty and security of the person. This is qualified by Article 5(1)(e), which states that no one shall be deprived of his liberty unless he is a person of unsound mind and he is detained in

accordance with a procedure prescribed by law. The ECHR thus recognises that a State Party can use mental illness as a ground for suspending a person’s liberty. In Winterwerp v The Netherlands,294

the ECtHR said that the term ‘unsound mind’ in Article 5(1)(e) was not capable of having a definitive interpretation; its meaning evolves constantly in light of 292 [1996] 1 FCR 753. 293 [1995] Fam 133. 294

172 psychiatric research, new treatments and changes in society’s attitude to mental illness.295

For that reason, the Court recognised that the relevant national authorities of State Parties have discretion to decide whether an individual should be detained as a ‘person of unsound mind’.296

In this way, the Court divested itself of the responsibility of specifying what would

amount to ‘unsound mind’ for the purposes of Article 5(1)(e). However, it did set out procedural requirements with which each State Party to the Convention should comply. First, a patient must be reliably shown to the relevant national authority to be of ‘unsound mind’, which calls for objective medical expertise. Secondly, his mental disorder must be of a kind or degree that warrants compulsory confinement. Thirdly, the person’s detention must persist only as long as his disorder does.297

Provided that a State Party incorporates these requirements into its legal framework and that its competent national authority applies them, then it will comply with Article 5(1)(e) of the ECHR.

Subsequent cases have affirmed Winterwerp and have also made additional observations about the meaning of ‘a procedure prescribed by law’. In Varbanov v Bulgaria,298

the Court said that a necessary element of the ‘lawfulness’ of detention is the absence of arbitrariness. This means that all decisions to admit patients to hospital on a compulsory basis should be taken in accordance with the opinion of a medical expert.299

It 295 Ibid, para.37. 296 Ibid, para.40 . 297 Ibid, para.39. 298

ECtHR, Application No. 31365/96, Judgment of 5 October 2000.

299

173 also means that those experts must not be motivated by bad faith or deception.300

In Sabeva v Bulgaria,301

the Court said the requirement in Article 5(1) that a procedure to suspend a person’s liberty be lawful also means that the law ‘should be accessible to the persons concerned and foreseeable as to its effects’.302

It is clear that the Convention jurisprudence expects that the domestic law of States Parties will be procedurally rigorous and legally certain.303

It is difficult to deny that the MHA’s grounds for compulsory admission mirror the Winterwerp criteria. It is also true that domestic courts have read slight modifications into the MHA’s mechanics in order to align the legislation closely with the standards expected by the Convention.304

Having said this, Winterwerp does not refer explicitly to risk as a prerequisite for the suspension of a patient’s liberty; it was only later that the ECtHR recognised that the interests of the patient’s health or safety and the protection of other people constitute the rationale for compulsory care and treatment.305

It is not clear

300

X v Finland ECtHR, Application No. 34806/04, Judgment of 3 July 2012, at para.147; Saadi v United Kingdom ECtHR Application No. 13229/03, Judgment of 29 January 2008, at paras.68-9.

301

ECtHR, Application No. 44290/07, Judgment of 10 June 2010.

302

Ibid, para.57.

303

The ECtHR’s emphasis on legal certainty is not just limited to mental health cases: see, e.g., the criminal case of Kokkinakis v Greece ECtHR, Application No. 14307/88, Judgment of 25 May 1993.

304

See, e.g., R (on the application of C) v London South and South West Region Mental Health Review Tribunal [2002] 2 FCR 181 R (on the application of H) v Secretary of State for the Home Department [2003] UKHL 59; R (on the application of MH) v Secretary of State for Health [2005] UKHL 60.

305

See, e.g., Guzzardi v Italy ECtHR, Application No. 7367/76, Judgment of 6 November 1980, at para.98: ‘The reason why the Convention allows [persons of unsound mind]… whom are socially maladjusted to be deprived of their liberty is not that they have to be considered as occasionally dangerous for public safety but also that their own interests may necessitate their detention.’ See also Witold Litwa v Poland ECtHR, Application No. 26629/95, Judgment of 4 April 2000, at para.60; Gorshkov v Ukraine ECtHR, Application No. 67531/01, Judgment of 8 November 2005.

174 therefore whether the ECtHR expects a variation on the MHA’s risk formula to serve as another admission criterion in the domestic laws of States Parties. It seems that considerations of patients’ risks may be a handy added extra as far as the Convention is concerned. In Reid v United Kingdom,306 the applicant had been detained in hospital solely on the basis of a diagnosis of anti-social personality and psychopathic disorder. Following the introduction of the Mental Health (Scotland) Act 1984, patients with the applicant’s condition could only be detained in hospital for treatment where their mental disorder satisfied a treatability test.307 The applicant relied on medical evidence to argue that his mental disorder was not treatable, whereas the Sheriff refused to order his release because there was a risk that Reid would display violent and sexualised behaviour. The applicant contended that the United Kingdom had violated his right to liberty under Article 5(1) ECHR by keeping him detained in hospital when his condition was no longer treatable for the purposes of the 1984 Act. The ECtHR held that there had been no violation of the applicant’s rights under Article 5(1): the Convention jurisprudence did not recognise the concept of treatability; all that matters is that the patient has a mental disorder of a degree warranting confinement.308 For the purposes of the Convention, there could be no breach of Article 5(1) where a person is diagnosed with a mental disorder but is detained in breach of some esoteric provision of domestic law. It is quite legitimate to confine someone on the basis that he needs control and supervision to prevent him causing harm to himself or others; i.e., in response to the risks.309 It is here that we encounter a paradox: while the ECtHR regards

306

(2003) 37 EHRR 9.

307 _{See, Mental Health (Scotland) Act 1984, s.17(1)(a)(i).} 308

Reid’s case, supra n.306, at para.51.

309

175 legal certainty as critically important to upholding the Convention rights, it is apparently happy to sanction decisions to deprive patients of their liberty on the basis of subjective assessments of risk that may generate the antithesis of certainty. It is difficult to see how risk, with its definition and evidential problems, can possibly create a legal basis for detention that is not arbitrary, is accessible to the patient and foreseeable in its effects. Surely this runs directly contrary to the Convention’s standards?

Crucially, the ECtHR, like domestic courts, prefers not to interfere in matters it believes are beyond its competence. As long as a State Party’s domestic mental health legislative framework complies with Winterwerp as a minimum, there will be no breach of Article 5(1)

ECHR. This means that issues arising out of the risk formula are of no concern for the ECtHR. This in turn means that ‘risk talk’ completely bypasses the Convention’s protections, handing decision-makers a tactical advantage to achieve their desired outcomes without contravening human rights provisions. This point is helpfully demonstrated by X v United Kingdom,310

where the ECtHR said that whilst it had the jurisdiction to verify the fulfilment of the Winterwerp criteria, ‘the logic of the system of safeguards established by the Convention places limits on the scope of this control’, meaning that national authorities are better placed to evaluate the evidence adduced before them.311

In X, the Home Secretary, on the advice of X’s medical officer, ordered that the applicant be recalled to hospital when his mental health deteriorated following his conditional discharge from a secure unit. The medical officer had not examined the patient; he referred the matter to the Home Office