Case No:CO/4744/2002
Neutral Citation Number: [2003] EWHC 1094 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 16 April 2003
Before :

THE HONOURABLE MR JUSTICE MAURICE KAY

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THE QUEEN on the application of

	   M  	Claimant	

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	SECRETARY OF STATE FOR HEALTH	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Paul Bowen (instructed by Scott-Moncrieff & Sinclair) for the Claimant
Steven Kovats (instructed by Department of Health) for the Defendant

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Maurice Kay : 

1.	M is a thirty four year old woman.  She suffers from a mental disorder currently diagnosed as a borderline personality disorder although she has previously been diagnosed as suffering from a paranoid psychosis.  She has a history of self harm since the age of eleven.  When she was fourteen she ran away from home and was later made the subject of a care order.  While she was in the care of a local authority she made allegations of sexual abuse against her adoptive father.  I shall refer to him as Mr. B.  In her witness statement in the present proceedings M states:
“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.”
2.	M came into contact with the psychiatric services in 1988.  At the time she was aged 19 and serving a custodial sentence.  In the course of that sentence she was transferred to Broadmoor Hospital under the provisions of section 47 of the Mental Health Act 1983.  Following her release from Broadmoor she spent several years living in supported accommodation in the community.  On 20 October 1998 she was detained pursuant to section 3 of the Mental Health Act at Chadwick Lodge, a medium secure psychiatric hospital in Milton Keynes.  On 5 August 2002 she was released on leave pursuant to section 17 of the Mental Health Act.  She presently lives in a hostel under the supervision of Doctor Hindson and remains liable to detention under the Act.  
3.	Detention pursuant or section 2 or section 3 of the Mental Health Act involves the restriction of personal liberty.  One of the safeguards provided for by the Act is the role accorded to the “nearest relative” of the detained person.  Section 26(1) provides:
“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;
(e) grandparents;
(f) grandchild;
(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).
4.	The nearest relative plays an important part in the scheme of the Act.  He may make an application for admission for assessment (section 2), an emergency application for admission for assessment (section 4) and an application for admission for treatment (section 3).  No application for admission or treatment under section 3 may be made by an approved social worker without first consulting with the nearest  relative unless the social worker considers that such consultation is not reasonably practicable or would involve unreasonable delay (section 11(4)).  The manager of a psychiatric institution in which a patient is detained has to inform the nearest relative in writing about, amongst other things, the right to apply to a Mental Health Review Tribunal, the right to be discharged, the right to receive and send correspondence and the right to consent to or refuse treatment (section 132 (4)).  A nearest relative may order the discharge of a patient who is detained under section 3 (section 23).  Prior to exercising this important power the nearest relative can appoint a medical practitioner to examine the patient and the appointed practitioner can require the production of records relating to the detention or treatment of the patient (section 24).  The right to order discharge under section 23 is limited when the responsible medical officer certifies that the patient would, if released, be likely to be a danger to himself or others (section 25).  Where a patient is to be discharged other than by the order of the nearest relative, the detaining authority is required to notify the nearest relative of the forthcoming discharge unless the patient requests that no such information is supplied (section 133(2)).  
5.	In addition to the power to order a discharge under section 23 the nearest relative may apply to a Mental Health Review Tribunal for the discharge of the patient pursuant to section 66.  Moreover if someone else makes an application to the Mental Health Review Tribunal, the nearest relative must receive notice of the proceedings pursuant to rule 7(d) of the Mental Health Review Tribunal Rules. The nearest relative then becomes a party to the proceedings in the Tribunal “unless the context otherwise requires” (rule 2(1)).  Once a party to the proceedings, the nearest relative is entitled to be informed as to their progress and may be represented in the proceedings, may appear at the hearing and take such part in the proceedings as the Tribunal thinks proper (rule 22(4)).  As a party, he will also receive the decision of the Tribunal and the reasons for it (rules 24 and 23).  Where the nearest relative is the applicant to the Tribunal he may appoint a registered medical practitioner to visit and examine the patient and that practitioner may require production of and inspect any records relating to the detention and treatment of the patient (section 76 (1)).  As the applicant, the nearest relative may attend the Tribunal hearing, be heard by the tribunal, call witnesses and cross examine the witnesses (rule 22 (4)).  Moreover, as an applicant, he also receives a copy of every document received by the Tribunal (rule 12(1)).  Some of these provisions may be modified by the Tribunal in the interests of the patient.  
6.	That is not intended to be a comprehensive statement of the powers and position of a nearest relative but it serves to illustrate the importance of the concept in the scheme of the Act.  The other important provision of the Act is section 29, the material parts of which state:
“(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.  
7.	In the present case, M’s nearest relative is Mr. B.  She wishes that he were not but there are no legal means available to her to compel his replacement.  Nor can anyone else make an application on her behalf to have him replaced on the grounds that he is unsuitable.  In her witness statement, M refers to being extremely distressed by her knowledge that Mr. B, as nearest relative, has access or potential access to confidential information about her.  She refers to several occasions where he or his wife have referred to information which she had not told them and which she strongly objects to their knowing.  She refers to numerous occasions on which Mr. B or his wife have made intrusive remarks to her indicating their knowledge of personal details contained in her medical records.  She states that there is no relationship of trust between her and her nearest relative and she does not ever want to see or communicate with Mr. B or his wife again.  Doctor Hindson states:
“M’s inability to change her nearest relative does cause her anguish and could also adversely effect her mental state. ”
8.	In this application for judicial review M now seeks one thing and one thing only, namely a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998.  The material parts of section 4 reads as follows:
“(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.”
9.	It is not necessary for me to dwell on the issue of incompatibility in this case for the simple reason that it is admitted by the Secretary of State.  This is hardly surprising.  In JT v. United Kingdom (application number 26494/95, 26 February 1997) the European Commission of Human Rights declared the admissibility of a complaint concerning the incompatibility of the nearest relative provisions with Article 8.  In its subsequent Report adopted on 20 May 1998 the Commission considered that 
“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’.”
10.	Although there is no dispute between the parties about the incompatibility, it still requires judicial determination.  On behalf of M, Mr. Bowen made the following submissions and I adopt them:
(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 [2002] 2 AC 291 at paras 36-41, per Lord Nicholls.
11.	In fact, following the friendly settlement in JT, no amending legislation has been enacted.  The position of the Secretary of Stae is that he acknowledges the incompatibility but states that he intends to enact amending legislation in the form of a comprehensive Mental Health Bill with a view to a root and branch reform of the 1983 Act.  To that end a Draft Bill has been published in the form of the Mental Health Bill 2002 (CMND.5538-1).  It is the subject of extensive consultation.  It was not mentioned in the Queen’s Speech at the beginning of the present Parliamentary session.  However, on 14 November 2002 the then Leader of the House, Mr. Robin Cook MP, stated,
“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)  
12.	On the same occasion the Secretary of State, Mr. Alan Milburn MP said:
“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)
13.	It is against this background that the Secretary of State now acknowledges the incompatibility with Article 8 but opposes the making of a declaration of incompatibility under section 4.  His case is that such a declaration would be unnecessary and undesirable at this stage.  The case for M, on the other hand, is that the incompatibility has been known since JT and, notwithstanding the passage of time, no Bill has even reached first reading stage.  Given the passage of time and the other pressures on Government and Parliament, it is highly improbable that a Bill will be enacted within the present Parliamentary session.  It is therefore likely to be at least eighteen months before a Bill is enacted and, even then, its contents cannot be predicted with confidence at this stage, nor can the date or dates upon which its various parts will come into force.  In considering the factors which weigh upon the exercise of my discretion under section 4, I propose to approach them by reference to the specific points made by Mr. Kovats on behalf of the Secretary State.
14.	First, Mr. Kovats submits that the fact that the Government has already publicly and formally acknowledged that the legislation is incompatible with Article 8 obviates the need for a section 4 declaration.   Adrian Seiff, a civil servant whose responsibilities include the development of the policy behind and the introduction of the Mental Health Bill, states:
“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.
15.	Secondly, Mr. Kovats invites me to attach significance to the fact that the Strasbourg Court was content for the matter to be resolved by way of friendly settlement.  I draw no comfort from that in view of the fact that the terms of settlement remain unfulfilled and the present intention of the Government is to abandon them in favour of a different statutory model which is as yet not in its final proposed form and the date of enactment and commencement of which is unknown.
16.	Thirdly, Mr. Kovats submits that the proposed Mental Health Bill will resolve the problem.  Following on from what I have just said, I take the view that it would be wrong for me to make assumptions about the form in which a Bill may be enacted or about the timing of its coming into force.  It is apparent from the material before me that the draft Bill is controversial.
17.	Fourthly, it is suggested that I should hesitate to make a declaration when the Government has decided upon a course – a comprehensive Mental Health Bill – after long and careful consultation and consideration.  It is implicit in this suggestion that, by making a declaration, I would be expressing a view about how Government and Parliament should go about its business.  That is incorrect.  If I make a declaration, it is for the Government to decide what, if anything, to do about it.  It is not for me to express or imply any view as to what it, through Parliament, ought to do about it.  If I make a declaration, the door is opened to a remedial order under section 10, but it remains a matter for the Secretary for Sate as to whether he wishes to walk through that door.
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.
18.	Whether, after a declaration of incompatibility, an amending measure is undertaken by the introduction of a Bill or by way of a remedial order; or whether, if by Bill, it is by a short amending Bill or is part of a longer, wider-ranging Bill; or whether any amendment is undertaken at all – are all matters for the Minister and not for the Court.  The discretion of the Minister is itself conditioned by the “compelling reasons” criterion that is a pre-requisite to the section 10 procedure.  It is axiomatic that the making of a declaration of incompatibility creates a situation in which interested persons and groups may seek to press the Minister to go down the section 10 road.  However, in a case such as this, it is not for the Court to insulate the Minister from such pressure – it is the foreseeable consequence of any declaration of incompatibility and that must have been anticipated by Parliament  when the Act was passed.  The architecture of the Act and its paradigmatic relationship with the doctrine of separation of powers were the product of great legal and constitutional ingenuity.  It is for the court to interpret legislation and to decide whether or not it is compatible; it is for the court to decide whether, as a matter of discretion, to make a declaration of incompatibility.  However, it is not for the court to decide between the different routes to the achievement of compatibility or to seek to give a steer in the direction of one route or the other.   The arguments in favour of each are well known.  There is an interesting review of them in the Seventh Report of the Joint Committee on Human Rights, Making of Remedial Orders (19 December 2001).  They are matters for Government and Parliament but not, in a case such as this, for the court.
19.	Sixthly, Mr. Kovats submits that a declaration of incompatibility is not necessary in order to identify and draw the attention of the Government to the incompatibility.  To the extent that JT has already identified and drawn attention to the incompatibility and to the extent that the Secretary of Sate acknowledges it, that is true.  However, notwithstanding the passage of time and the terms of the settlement in JT, the incompatibility remains and it is not possible to predict with accuracy when or how it will  be rectified.
20.	Seventhly, it is submitted that, by reason of section 4(6), a declaration of incompatibility will be of no direct benefit to M whose situation will remain unchanged until amending legislation is enacted.  That is true, but no more so than in the case of any other claimant and any other declaration of incompatibility.
21.	Eighthly, it is said that a declaration would be a distraction from proceeding with the Mental Health Bill and this would be against the public interest.  Mr. Sieff expands upon this in his statement.  He expresses concern about causing  delay in the enactment of the Mental Health Bill.  However, that is to invite me into a debate about the options open to the Secretary of State after a declaration of incompatibility and it is an invitation which I feel obliged to decline.  I have already explained why.  I also observe that preparations for the Mental Health Bill have been in hand since 1999 but that did not prevent the Government from putting forward the friendly settlement, on the basis of intended piecemeal remedial action in 2001.  There has been some debate in the course of submissions about other declarations of incompatibility that have been made and the legislative responses they provoked but I do not find the authorities indicative, one way or the other, as to whether a declaration should be made as a matter of discretion in the first place.
22.	Finally, Mr. Kovats submits that the effect of the current legislation on M is not such as to point to the need for a declaration.  He suggests that the evidence of disproportionate interference with M’s right to respect for her private life is “scant” but, in my judgment, that understates the evidence of M and Dr. Hindson to which I have referred.  It is observed that there is no challenge to any specific act of Mr. B.  However, on the admitted and assumed facts (by “assumed” I include those denied by Mr. B), it seems to me that there is a continuous interference with which M is powerless to deal.  That the relationship between patient and nearest relative is unsuitable in this case is clear beyond a peradventure.  That irremediable unsuitability creates an on going violation of Article 8.  Mr. Kovats criticises M for not having attempted to persuade Mr. B to relinquish his functions as nearest relative to another, pursuant to regulation 14 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983, but I am unimpressed by that submission.  M has no rights under regulation 14.  It is an enabling provision which empowers the nearest relative to authorise any person other than the patient to perform the nearest relative’s statutory powers.  In effect, the authorised person becomes a delegate or substitute for the nearest relative who, under regulation 14, retains the right to revoke the authority.  Whether or not, in such circumstances, the nearest relative retains the right to inspect material which comes into the hands of the authorised person, so as to consider whether to exercise the right to revoke his authority, is an interesting question which I do not need to resolve.  What is abundantly clear is that regulation 14 provides the patient with no rights, nor is it a provision with the potential satisfactorily to solve M’s problem in the present case.
23.	For all these reasons, I am not persuaded by the submissions made on behalf of the Secretary of Sate to the effect that, as an exercise of discretion, I should decline to make a declaration of incompatibility.  On the contrary, as is implicit in what I have said in the course of rejecting those submissions,  I consider there to be good reasons for making the declaration.,  The incompatibility was identified a considerable time ago; its removal as anticipated in the JT settlement has not taken place; there is uncertainty now the form and commencement of any such removal; in addition, the matter is an important one, not only for M but, potentially, for many others too.  Finally, I emphasise that, in deciding to exercise my discretion in favour of making a declaration of incompatibility, I have studiously refrained from expressing or even harbouring any view as to what should happen as a result of the declaration.  That must remain a matter for the Secretary of State.
24.	I would welcome the assistance of counsel on the wording of the declaration.  If it is to be a contentious matter or if there is a problem with their availability, further submissions can be deferred until the first week of next Term.