AS TO THE ADMISSIBILITY OF
Application No. 26494/95
by J.T.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 1 February 1995
by J.T. against the United Kingdom and registered on 13 February 1995
under file No. 26494/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations of the respondent Government submitted on
7 May 1996 and the observations in reply submitted by the
applicant on 23 July 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1964. She is resident
in the United Kingdom. She is represented before the Commission by
Ms. Lucy Scott-Moncrieff, a solicitor practising in East Sussex. The
facts as submitted by the applicant may be summarised as follows.
A. Particular circumstances of the case
In 1984 the applicant, who had a history of mental disorders, was
committed as an involuntary patient (for a potential period of six
months) to a psychiatric institution pursuant to section 3 of the
Mental Health Act 1983 ("the 1983 Act"). In November 1984 she was
transferred to a regional secure unit and in 1987 was approved for a
special hospital place in a psychiatric institution in Berkshire. The
applicant was released in January 1996.
Until her release the applicant's detention under section 3 of
the 1983 Act was renewed continuously - initially for a further six-
month period and thereafter for twelve-month periods. Her detention was
reviewed by Mental Health Review Tribunals, inter alia, on
29 June 1988, 7 December 1989, 1 March 1993, 13 September 1993 and
30 January 1996. The applicant was discharged after the latter review
and, pursuant to her request, no advance warning as to her discharge
was given to her nearest relative, her mother.
Various psychiatric and social work reports compiled during the
applicant's detention refer, inter alia, to her difficult relationship
with her mother, to allegations of sexual abuse by her step-father made
and currently maintained by the applicant (though no proceedings have
issued against him) and to the expression by the applicant of her wish
to remove her mother as her nearest relative (though no application
under section 29 of the 1983 Act was made in this latter respect). The
reports reflect the ongoing impact on the applicant of her difficult
relationship with her mother and step-father. Various references are
made in the social work reports to consultations which took place
between the social workers and the applicant's mother and brother in
order to obtain their opinions on various matters concerning the
applicant's treatment and current situation.
B. Relevant domestic law and practice
1. General
The detention of persons suffering from mental disorders is
governed by the Mental Health Act 1983 as amended ("the 1983 Act") and
the rules made pursuant to the 1983 Act by statutory instrument.
Pursuant to section 3 of the 1983 Act a person may be involuntarily
committed to a psychiatric institution for treatment on the written
recommendation of two medical practitioners. A person so committed has
the right to apply to a Mental Health Review Tribunal ("MHRT") within
six months of committal and thereafter once during each period of
renewal of the authority for detention under section 3 of the 1983 Act,
which renewals may be for a second period of six months and thereafter
for twelve months.
2. The nearest relative
(a) The identity of the nearest relative : The patient's "nearest
relative" is designated by section 26 of the 1983 Act and is the first
relative in a list of relatives in that section (in descending
priority) who satisfy the relevant criteria. The nearest relative may
subsequently authorise another person to carry out the functions of
nearest relative (Regulation 14 of the Mental Health (Hospital,
Guardianship and Consent to Treatment) Regulations 1983).
Section 29 of the 1983 Act, insofar as is relevant, provides as
follows:
"(1) The county court may, upon application ... direct that the
functions of the nearest relative of the patient ... shall ...
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 ... was last
residing;
(c) an approved social worker.
(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 for admission for
treatment ...; 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 is likely to do so."
(b) Admissions : An application for admission for assessment (sections
2 and 145 of the 1983 Act), an emergency application for admission for
assessment (section 4 of the 1983 Act) and an application for admission
for treatment (sections 3 and 145 of the 1983 Act) can be made by,
inter alia, a nearest relative. In addition, no application for
admission for treatment under section 3 of the 1983 Act shall be made
by an approved social worker without consultation with the nearest
relative unless the social worker considers that, in the circumstances,
such consultation is not reasonably practicable or would involve
unreasonable delay (section 11(4) of the 1983 Act).
(c) Discharge : Pursuant to section 23 of the 1983 Act an order for the
discharge of a patient, detained under section 3 of the 1983 Act, may
be made by the nearest relative. Prior to exercising the power to order
the discharge of a patient, the nearest relative can appoint a medical
practitioner to examine the patient and that practitioner can require
the production of records relating to the detention or treatment of the
patient in any hospital with a view to their inspection (section 24).
However, such an order of the nearest relative will have no effect if
the responsible medical officer furnishes a report to the hospital
managers certifying that the patient would, if released, be likely to
be a danger to him/herself or others (section 25).
The detaining authority has a duty to notify the nearest relative
that the patient is to be discharged. However, this duty can be
overridden if the patient requests that no such information is supplied
(section 133(2) of the 1983 Act). Similarly if a patient is to be
discharged under supervision in accordance with sections 25A-25H of the
1983 Act (inserted by the Mental Health (Patients in the Community)
Act 1995), all provisions requiring consultation with or notification
to the nearest relative of procedural and substantive steps relating
to the patient's supervised discharge are subject to the patient's veto
other than in cases where the patient has a propensity to violent
behaviour towards others or in cases where the responsible medical
officer considers that, in any event, it is appropriate for the
consultation and informing process to take place.
(d) Reviews before a MHRT : If unsuccessful under section 23 of the
1983 Act, the nearest relative can then, under section 66 of that Act,
make an application to the MHRT for the discharge of the patient and
in such a case will be considered "the applicant" for the purposes of
the proceedings before that MHRT. Accordingly, the nearest relative
would then have to be informed of the arrangements for the hearing,
would attend the hearing and receive a copy of every document received
by the MHRT which is relevant to the application (unless the MHRT
decides that disclosure would be adverse to the welfare of patient).
In cases where the patient or the detaining authority applies to
the MHRT, the MHRT must notify the nearest relative of the application
and of the arrangements for the determination of the application. The
nearest relative will also receive a copy of the decision (which must
contain the MHRT's reasons for its decision).
COMPLAINTS
The applicant complains that her mother is her "nearest relative"
within the meaning of the 1983 Act. In view of the applicant's
difficult relationship with her mother and step-father, she wished to
nominate someone else as her nearest relative so that personal
information, mainly in relation to the reviews of her detention before
the MHRT, was not released to her mother nor, consequently, to her
step-father. She complains that she could not apply to change the
identity of her nearest relative since the patient cannot make this
application and since, in any event, concern by a patient about the
relationship with the nearest relative does not constitute a ground for
an application by someone on her behalf. She submits that this
situation constituted an interference with her private life in
violation of Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 1 February 1995 and was
registered on 13 February 1995.
On 18 October 1995 the Commission decided to communicate the
application.
The observations of the respondent Government were received by
letter dated 10 May 1996 and those of the applicant in response were
received on 31 July 1996;
THE LAW
The applicant complains that her mother is automatically her
"nearest relative" within the meaning of the 1983 Act. Accordingly, her
mother had access to information about the applicant's treatment and
progress while the applicant was detained. She wanted to nominate
someone else as her nearest relative, in light of her difficult
relationship with her mother and her fear of her step-father, so that
personal information (mainly in relation to the reviews of her
detention before MHRTs) was not released to her mother nor,
consequently, to her step-father (against whom the applicant has made
and maintains allegations of sexual abuse). She complains that she, or
someone on her behalf, could not have applied to change the identity
of her nearest relative and that this amounts to an interference with
her private life in violation of Article 8 (Art. 8) of the Convention.
The Government accept that the giving of information to one party
about another against the latter's wishes may breach the latter's right
to respect for his private life. However the Government submit that the
aim is legitimate - the concept of the nearest relative has been
developed to ensure that someone presumed to act in the patient's best
interests and who will also have a relevant contribution to make to
professional and clinical decisions made concerning the patient can
participate at various stages of admission, detention and discharge of
the patient.
Furthermore, the Government consider that the system operates in
a proportionate manner. In the first place, the nearest relative is
only involved and provided with information which will facilitate
professional assessment, treatment and decision making in respect of
the patient and the Government refer to the fact that the applicant's
mother and brother were often consulted for their views on the patient.
However, the nearest relative is not shown medical reports. Secondly,
in two important areas the patient can veto information which goes to
the nearest relative; information given to the nearest relative on
discharge (section 133(2) of the 1983 Act) and notification on
discharge under supervision (section 25B(2)(b) of the 1983 Act).
Thirdly, section 29 of the 1983 Act allows the appointment of a
different relative by the County Court and the applicant has not
attempted, to the Government's knowledge, to persuade someone to make
this application on her behalf.
The Government accept that there remain a number of areas where
the patient cannot unilaterally prevent information being given to the
nearest relative. The Government mention, in particular, the case where
the application to the MHRT is made other than by the nearest relative
and to the information (as to the date and arrangements for the
hearing) given to the nearest relative and to the fact that the
decision of the MHRT is also sent to that relative. The Government
indicate that they also accept that in certain cases it may be
appropriate to exclude the nearest relative from these provisions and
they propose to consult relevant organisations and persons with a view
to identifying cases where such an exclusion may be appropriate and to
making the appropriate amendment to the relevant rules.
However, the Government, nevertheless, consider that the present
situation is justifiable under Article 8 para. 2 (Art. 8-2) of the
Convention for the protection of health and for the protection of the
rights and freedoms of others (to the benefit of both the patient and
the patient's family members). The Government submit that the mentally
disordered person sometimes acts irrationally and with little regard
for others. Accordingly, it is important for the health and safety of
the patient that the experience of the family is obtained and it is
important for the family that they are kept informed of decisions which
are taken by others about a family member.
Accordingly, the Government submit that the application is
manifestly ill-founded or, alternatively, that it does not disclose a
violation of Article 8 (Art. 8) of the Convention.
The applicant submitted observations both in relation to her last
period of detention which ended in January 1996 and in relation to the
alleged current danger of a future committal to and detention in a
psychiatric institution in view of her mental illness. She submits that
the Government have failed to recognise that the existing law allows
the appointment of a wholly inappropriate person as a nearest relative.
In this context, she argues that her mother has consistently taken the
part of her step-father. It is, according to the applicant, proven
beyond all reasonable doubt that her step-father sexually abused her
and that this was responsible, to a significant extent, for her
psychiatric difficulties.
The legal safeguards to which the Government refer are
insufficient in the applicant's view. A patient cannot apply under
section 29 of the 1983 Act herself and cannot compel another person to
make the application on her behalf. She requested her mother to agree
to her functions being discharged by a third person and her mother did
not agree. In any event, the grounds upon which the relevant
application to the County Court can be made do not cover the
applicant's concerns about her relationship with her nearest relative.
In addition, there are no safeguards against the nearest relative
failing to exercise that person's statutory discharge functions in the
patient's favour, exercising unreasonably the powers as regards the
committal of a patient to a psychiatric institution or participating
in an application to a MHRT (either as the applicant to the MHRT or,
in other cases, as a party who will receive information concerning the
review).
The applicant considers that the justification offered by the
Government, relating to the experience and knowledge of the nearest
relative, is eroded when it is precisely the nearest relative's
relationship with the patient that, at the very least, substantially
contributes to the patient's difficulties.
The applicant also refers to some other methods by which the
nearest relative can obtain access to information not mentioned by the
Government. She refers to the consultation procedure, required by
section 11(4) of the 1983 Act, prior to committal under section 3 of
the 1983 Act and points to the large access to information that the
nearest relative has when that person makes an application to the MHRT
on the applicant's behalf. This information would include, contrary to
the Government's submissions, medical reports.
The applicant considers that the automatic appointment of the
nearest relative, the lack of means available to her to change the
identity of that relative combined with the powers and access to
personal information of the nearest relative amount, in the light of
her reasonable fears surrounding her relationship with her nearest
relative, to an interference in her private life which is not
justifiable under the second paragraph of Article 8 (Art. 8) of the
Convention.
Insofar as the applicant's complaint relates to her period of
detention which ended in January 1996, the Commission considers, in
light of the parties' submissions, that this part of the application
raises complex and serious issues under Article 8 (Art. 8) of the
Convention which require determination on the merits. It follows that
this complaint of the applicant cannot be dismissed as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
Insofar as the applicant's complaint relates to any future
committal to or detention in a psychiatric institution, the Commission
notes that the applicant is at the moment at liberty and that it is
only when her mental condition is of such a nature as requiring her
committal for reasons permitted by the mental health legislation that
the question of her committal and detention would arise. Accordingly,
the Commission does not consider that the applicant can, as matters
stand, claim to be a victim of a violation of the Convention within the
meaning of Article 25 (Art. 25) of the Convention in this respect (No.
21681/93, Dec. 16.1.95, unpublished).
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without pre-judging the merits, the
applicant's complaints in relation to her nearest relative in
respect of her detention which ended in January 1996; and
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy