QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of M
- v -
|SECRETARY OF STATE FOR HEALTH
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Steven Kovats (instructed by Department of Health) for the Defendant
Crown Copyright ©
Mr Justice Maurice Kay :
"Mr. B started sexually assaulting and abusing me when I was four years old and carried on until I was eleven years old. I believe that his wife…knew of his crimes and did nothing to stop him or protect me. I am extremely frightened and distressed by Mr. B and I deeply mistrust his wife."
The allegations have always been denied by Mr. B. However they are accepted as true by M's clinical team. Her current responsible medical officer, Doctor Hindson, states:
"I understand that her adoptive father abused M when she was a child. Consequent on her early abusive experiences, she has pervasive developmental mental disorder. This has been characterised in the past by drug dependency, serious self harm and emotional dysphoria. She continues to need psychotherapeutic support and care. Responsible psychiatrists, social workers, and nursing staff have always accepted the accuracy of M's account of sexual assault and abuse in childhood. Her symptoms, such as flash backs, are consistent with her description of the crimes committed against her."
"In this part of the Act 'relative' means any of the following persons:
(a) husband or wife;
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(g) uncle or aunt;
(h) nephew or niece."
The "nearest relative" means the person first described in sub-section 1 who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half blood and the elder or eldest of two or more relatives described in any paragraph of sub-section (1) being preferred to the other or others of those relatives, regardless of sex: section 26(3).
"(1) The County Court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by the applicant, or by any other person specified in the application, being a person who, in the opinion of the court, is a proper person to act as the patient's nearest relative and is willing to do so
(2) An order under this section may be made on the application of
(a) any relative of the patient;
(b) any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, with last residing before he was admitted); or
(c) an approved social worker;
but in relation to an application made by such a social worker, sub-section (1) above shall have effect as if for the words "the applicant" there were substituted the words "the local social services authority."
(3) An application for an order under this section may be made upon any of the following grounds, that is to say,
(a) that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is;
(b) that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;
(c) that the nearest relative of the patient unreasonably objects to the making of an application or admission for treatment or a guardianship application in respect of the patient; or
(d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or guardianship under this Part of the Act, or is likely to do so."
It is a striking feature of these provisions that the patient cannot apply to remove or change the nearest relative.
"M's inability to change her nearest relative does cause her anguish and could also adversely effect her mental state. "
"(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the p rovision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(6) A declaration under this section ("a declaration of incompatibility") –
(a) does not effect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made."
In a nutshell, M contends that sections 26 and 29 of the Mental Health Act are incompatible with Article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Article 8, which is headed "Right to respect for private and family life" states:
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"even taking account of the Government's margin of appreciation, the absence of any possibility to apply to the County Court to change the applicant's nearest relative on the grounds of her concerns about the identity of that person renders the interference of her rights under Article 8 para 1 of the Convention disproportionate to the aims pursued."
The judgment of the European Court of Human Rights dated 30 March 2000 records a friendly settlement between JT and the Government. The judgment states:
"By letter dated 12 October 1999 the Government outlined the terms of settlement. The relevant legislation was to be amended to provide the detainee with the power to make an application to court to have the 'nearest relative' replaced where the patient reasonably objected to a certain person acting in that capacity. It was also to provide for the exclusion of certain persons from acting as 'nearest relative'."
(1) M is entitled to bring a free-standing claim for a declaration of incompatibility under section 4.
(2) JT is authority on the issue of incompatibility. In any event it is self-evident. It flows from the automatic appointment of Mr. B as M's nearest relative and the statutory consequences that result from that appointment. They have interfered with her private life and there is a significant risk of further interference: see Modinos v. Cyprus (1993) 16 EHRR 485, paras 23 and 24. There is no need for her to substantiate any further impact: see Klass v. Federal Republic of Germany (1978) 2 EHRR 214, paras 33-34.
(3) There is no question of justification under Article 8(2) and none is suggested.
(4) It is not possible to construe sections 26 and 29 compatibly with Article 8 without crossing the line into judicial amendment as opposed to construction: see Human Rights Act 1998, section 3, and Re W  2 AC 291 at paras 36-41, per Lord Nicholls.
"The Mental Health Bill has already been published in draft. There is now quite a degree of public debate as a result of the proposals in the draft text, and the Department are reflecting on that. We intend to bring that forward as an official Bill at some point in the course of the Session, but it is obviously important that the present stage be spent reflecting on the reaction to the Draft Bill."(Hansard, column 131)
"The draft Bill that we issued for consultation, after we had consulted following a Green Paper and a White Paper has produced around two thousand responses. When we have finished considering them, we will bring forward the Bill during this Session."
More recently, in the House of Lords on 1 April 2003, Baroness Andrews, a Minister in the Department of Health, was asked for a progress report on the re-drafting of the Bill. She replied:
"Over two thousand responses were received. They are still being evaluated. A report will be published but the Bill itself will have to await for Parliamentary time." (Hansard, column 1168)
"The Secretary of State accepts that current legislation, insofar as it confers certain functions on the nearest relative…..regardless of the wishes of the patient, is capable of producing situations in which there is a disproportionate interference with the patient's right to respect for her private life…The Secretary of State does not seek to go behind the Commission's findings in [JT]."
It is now over six years since the Commission declared JT's complaint to be admissible, almost five years since the Commission concluded that JT had established a violation of Article 8 and more than three years since the Strasbourg Court endorsed the friendly settlement. The legislative change anticipated by the friendly settlement – an amendment to permit a patient to apply to a court for the replacement of the nearest relative on reasonable grounds – has not taken place. Nor did it form part of the draft Bill, which proposed to abolish the nearest relative regime in favour of a new figure, the "nominated person" with fewer powers. Notwithstanding the expressed intentions of the Government, there is no Bill presently before Parliament. Since JT, the Human Rights Act 1998 has come into force. Thus far, JT having been disposed of by way of a friendly settlement, the incompatibility has not been declared by any court. Nor, at the time of JT, was there in existence a fast-track means of enacting an amendment such as now exists in the form of a remedial order under section 10 of the Human Rights Act. The authors of Grosz, Beatson and Duffy, Human Rights: the 1998 Act and the European Convention, having referred to the view of the Lord Chancellor during the Committee stage of the Human Rights Bill that he would generally expect that, once a court had found an incompatibility, it would make a declaration, state (at p55):
"Once a matter is before the court it is….difficult to see why it might want to decline to make a declaration of incompatibility."
It is right to emphasise that the making of a declaration remains a matter of discretion in the light of all the circumstances of the case. However, neither the fact that the present incompatibility is admitted, nor the pre-Human Rights Act history of JT disposes me to decline to make a declaration.
Fifthly, Mr. Kovats submits that as mental health legislation is of great importance and affects and protects some of the most vulnerable members of society, it is preferable that any amendment should attract the full Parliamentary scrutiny of a Bill rather than the fast track procedure of a remedial order. At this stage it is appropriate to set out the remedial order provision of section 10. It states:
"(1) This section applies if-
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies_
(i) all persons who may appeal have stated in writing that they do not intend to do so;
(ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned;
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility."
Schedule 2 contains provisions about the making of remedial orders. No such order may be made unless either a draft of the order has been approved by a resolution of each House of Parliament made after the end of a period of 60 days beginning with the day on which the draft was laid or it is declared in the order that it appears to the Minister that, because of the urgency of the matter, it is necessary to make the order without a draft being so approved.
If representations have been made during the 60 day period, the draft must contain a statement summarising the representations, together with any changes to the proposed order consequent upon those representations (paragraph 3). However, there is no power for either House or a Committee to amend an order.