Official Report: Minutes of Evidence

Ad Hoc Joint Committee on the Mental Capacity Bill, meeting on Monday, 23 November 2015

Members present for all or part of the proceedings:

Mr A Ross (Chairperson)
Mrs Pam Cameron
Mr Paul Frew
Mr Seán Lynch
Mr K McCarthy
Mr Raymond McCartney


Mr Stephen Murphy, Department of Finance
Ms Clare Irvine, Department of Justice

Part 10: DOJ and DFP Officials

The Chairperson (Mr Ross): Clare and Stephen, if you are happy enough, you can outline the Department's position, and, if there are any questions, we will open up the discussion.

Ms Clare Irvine (Department of Justice): No problem. Thank you, Chairman. The Committee wrote to the Department asking us to look at three areas, namely our rationale behind clause 166(2)(c), a summary of consultation views on clause 166 and some issues on article 5 of the European Convention on Human Rights (ECHR).

I will start with the rationale behind clause 166(2)(c). The DOJ's intention was to create a healthcare disposal that would be available to the Crown Court and a court of summary jurisdiction in cases where an offence was punishable on conviction with imprisonment, save for offences in the Crown Court, where the sentence is fixed by law. The healthcare disposal is also needed in cases where an individual is unfit to plead and is determined to have done the act or made the omission with which he or she is charged. The healthcare disposal can be made only where certain criteria are met. It is viewed as an intervention of last resort, where only detention can manage the risk posed by the individual to other people.

In creating the criteria for the disposal, DOJ considered the level of risk of harm that must be linked to the person's impairment or disturbance in the functioning of his mind or brain to be compliant with article 5 of the European Convention on Human Rights. Our understanding of the law was that the individual had to pose a risk of serious physical harm. We explored psychological harm, because some consultees raised it during our consultation phase. Our understanding at the time of drafting the Bill and obviously during its introduction was that that type of harm was outwith the competence of the ECHR and that its inclusion would cause a legislative competence issue for the Bill.

I mentioned our consultation on the Bill and the criminal justice policy position. In the consultation paper of May 2014, there was a limited response to psychological harm. Indeed, only two consultees raised it, which made us go off to explore it. The two consultees that raised the issue at that point were the Office of Social Services (OSS) and the Belfast Health and Social Care Trust.

Moving on to the relevance of article 5 of the European Convention on Human Rights, we were asked to look particularly at article 5(1)(a) and article 5(1)(e). Article 5 of the European Convention on Human Rights provides that everyone has the right to liberty and security of person and that no one shall be deprived of their liberty save in a number of circumstances and in accordance with the procedure that has been prescribed by law. The aim of article 5 is to ensure that no one is deprived of their physical liberty in an arbitrary fashion. The deprivation of liberty must be lawful and in accordance with the procedure prescribed by law, and such law has to be in conformity with the European Convention on Human Rights.

The general principles implied by the European Convention on Human Rights, to which article 5(1) case law refers, are the rule of law, legal certainty, proportionality and protection against arbitrariness. Where legal certainty is concerned, it is essential that the conditions for deprivation of liberty are clearly defined so that the law is foreseeable in its application. The notion of arbitrariness varies to a certain extent, depending on the type of detention. It may arise, for example, where there has been element of bad faith or deception on the part of the authorities; where the order to detain and the execution of the detention did not genuinely conform to the purposes permitted by article 5; where there was no connection between the ground of permitted deprivation of liberty and the place and conditions of detention; and where there was no relationship in the proportionality between the ground of detention relied on and the detention in question. The deprivation of liberty must be necessary in the circumstances and proportionate. Detention is justified only where other less severe measures have been considered and found to be insufficient to safeguard the individual or the public interest. The speed at which a state replaces a detention order that has expired or become defective is another matter in assessing whether the person's detention is to be considered arbitrary.

As mentioned, there are a variety of circumstances in which article 5(1) authorises deprivations of liberty, and they are between article 5(1)(a) and article 5(1)(f). We were asked to particularly look at article 5(1)(a) and article 5(1)(e). Protection under article 5(1)(a) of the European Convention on Human Rights has been considered in a number of cases. It applies to any conviction occasioning deprivation of liberty pronounced by a court, and the term signifies both a finding of guilt and the imposition of a penalty or other measure involving a deprivation of liberty.

A court is viewed as a body that exhibits independence from the Executive and guarantees judicial procedure, and it must have the competence to decide the lawfulness of the detention and to order release if that detention is unlawful. Detention must follow after conviction, but "after" does not simply mean that detention must follow the conviction at a point of time. The detention must result from, follow and depend on or occur by virtue of the conviction. There has to be a causal connection between the conviction and the deprivation of liberty that is in question.

Article 5(1)(a) has been held to apply where people of unsound mind are detained in psychiatric facilities after conviction. The case law there is Radu v Germany and X v United Kingdom. However, it should be noted that in Radu v Germany the court stated that, with the passage of time, the link between that initial conviction and a further deprivation of liberty may gradually become less strong and the causal link may eventually be broken if a position is reached in which a decision not to release or to re-detain is based on grounds that were inconsistent with the objectives of the original decision of the court. In those circumstances, a detention that was unlawful at the outset could be transformed into a deprivation of liberty that was arbitrary and therefore inconsistent with article 5(1). However, in Radu v Germany, it is interesting to note, the court held that there was a sufficient causal link, because the review of detention and the decision to continue the deprivation of liberty was based on grounds that were consistent with the sentencing court's aims, namely to protect the public from harm for as long as he was still dangerous and to provide treatment to reduce that dangerousness.

It is also important to note that public protection orders are available as disposals under the Bill where an individual is unfit to plead and no conviction has taken place. It should also be noted that there has been ECHR case law, Antoine v United Kingdom, which was reiterated recently in Juncal v United Kingdom in 2013. That held that the findings of unfitness to plead are not a determination of a criminal charge for the purposes of article 6 of the ECHR, which is a right to a fair trial.

Protection under article 5(1)(e), which is about detention for unsoundness of mind, has been considered in what is now regarded as a seminal judgement of the European Court of Human Rights in Winterwerp v Netherlands, as well as in other more recent cases, such as Stanev v Bulgaria. In those cases, the court set out and explained three criteria that must be satisfied to justify detention in accordance with article 5(1)(e). First, the person must reliably be shown by objective medical expertise to be of unsound mind unless emergency detention is required. Secondly, the mental disorder must be of a kind or degree that warrants compulsory confinement. Thirdly, the validity of the continuing confinement depends on the persistence of such a mental disorder.

Where the second of the above conditions is concerned — the disorder is of a kind or degree that warrants compulsory confinement — the detention of a mentally disordered person may be necessary not only where the person needs medical treatment to cure or alleviate his condition but where the person needs control and supervision to prevent him harming himself or others. Litwa v Poland and Hutchinson Reid v UK are sources for that statement. In Litwa v Poland, the courts stated:

"A predominant reason why the Convention allows the persons mentioned in paragraph 1(e) of Article 5 to be deprived of their liberty is not only that they are dangerous for public safety but also that their own interests may necessitate their detention".

It is conceivable — we have obviously considered this position since the introduction of the Bill — that "harm to himself or others" may be interpreted as including psychological harm in future. However, we understand that any such harm would need to be serious. Again, however, it should be noted that we understand that it is likely to be difficult in practice to base detention solely on the risk of an identifiable clinical condition occurring in a person, given that individual responses to emotional distress may vary between individuals.

In considering detention to tackle the assessed risk of serious psychological harm, clause 166(2)(d) makes it clear that detention must be a proportionate response to the likelihood of the harm and the seriousness of that harm. The assessment of likelihood is a more difficult exercise in the case of future psychological harm. However, we are working to explore how we can address including psychological harm in clause 166.

The Chairperson (Mr Ross): Thanks very much.

Mr Lynch: Can you explain the Department's thinking processes in deciding the term "serious physical harm to other persons" as part of the detention conditions for a public protection order?

Ms Irvine: We obviously looked at the ECHR position very carefully. This order is depriving somebody of their liberty, and we have to make sure that it is ECHR compliant. At the time when we were drafting it and at the time of the introduction of the Bill, it was our understanding that we had to limit it to "serious physical harm", but since the Committee raised the issue and a consultee raised it again during a Committee session, we went back to clarify that position. I think we have a little more flexibility, and we are looking at how we could capture that idea of serious psychological harm to be able to imbue clause 166 with that. So, we are working on it.

Mr Lynch: Did you consider other options, such as other wording?

Ms Irvine: Yes. That is the job that we have to do now. As with all things, it is never as straightforward as one thinks. I do not think that it is as simple as being able to slot "psychological harm" into that clause. We are looking at the definition of harm generally throughout the Bill and are working closely with counsel to get the right wording to capture our intention. It will take us a bit of time to get that sorted for you.

Mr Frew: Now that this has been raised by presenters and in Committee, the Department sees it as an issue that needs to be resolved, which is the first thing that should be recognised. Was the original decision to settle for that term that is used based on your policy considerations, or was it all based on the legal advice that you received? If so, even though we have brought it up and the presenters have brought it up, how has that policy or legal advice changed in the interim?

Ms Irvine: Obviously, when we were drafting the Bill and during the consultation phase, psychological harm in these public protection orders was raised. They certainly raised a flag for us at the time, so we went off to explore the issue. At that point, our understanding was that the term "psychological harm" fell outwith what we could do. However, as the Committee heard evidence from stakeholders again, which has caused us to go back and re-investigate this area, we think that there is now more flexibility in bringing "psychological harm" within clause 166. We are happy to explore the right wording to achieve that.

Mr Frew: Do you think that it will be as simple and as blunt as just adding "psychological harm"? I note that you talk about coming from it from another angle with regard to the offender — maybe "detainee" is a better word. You can hold them if there is "harm to themselves and to others". Will that be tight enough to cover "psychological harm"? You said that the issue had to be serious. The question that I have is this: what could be deemed as serious? Are you minded just to add the word "psychological"?

Ms Irvine: I do not think that it will be as easy as adding "psychological harm", unfortunately. Again, it starts getting very technical, and it is something that we are talking to counsel about to make sure that we capture the idea in the right wording and in the right, clear way. There is already a definition of "harm" in the Bill; it is in clause 293, I think. We have to make sure that whatever we do in clause 166 marries up with that definition and does not cause any untoward problems for anything else in the Bill where policy is settled and we are all very happy with it. It is a technical exercise for us to work closely with counsel and to find a way through. I do not think at this point that it is as simple as putting the words "psychological harm" into clause 166, but whatever we do to clause 166 will give the effect of bringing in that "serious psychological harm". Our understanding of the position at the minute is that only "serious psychological harm" should be brought within clause 166. Anything more trivial, we understand, would not be enough to get us over the threshold of what the ECHR allows us, so that is where "serious" will come in.

Mr Frew: It is not as easy as dropping the word "physical" and having the words "serious harm" in clause 166 and changing the definition of "serious harm".

Ms Irvine: We have to work through the manifestations of all the changes. It is like pulling a thread on a jumper; sometimes you pull it and you have unravelled the jumper. We are clear now what the policy intention is in DOJ, and we are clear now what the Committee feels about it. We know what we have to achieve. It is a case of making sure that we put the technical wording together. That is obviously a job for counsel; it is not for us to make sure that we achieve those objectives. Leave it with us. We are worrying about it incessantly at the moment.

Mr Frew: That is quite reassuring to hear.

Mr McCartney: Thank you very much for your presentation. Has the Human Rights Commission expressed a view on the issue, or have you sought its advice in consultation or even now, given that you are toying or wrestling with the new concepts?

Ms Irvine: That is a good point. During consultation, we consulted the Human Rights Commission, which said, "Be careful around this order. Make sure that it is ECHR-compliant". We are very reliant on the advice that we receive or on the understanding of that advice, and we are pretty confident moving forward that we are on solid ground now.

Mr McCartney: Are you going to ask it for advice, or are you going to go on your own steam in this instance?

Ms Irvine: We will consider it, if that would be viewed as helpful.

Mr McCartney: It might be of assistance to you. In particular, article 5(1)(a) of the convention allows for:

"the lawful detention of a person after conviction by a competent court".

How does that relate to public protection orders?

Ms Irvine: Article 5(1)(a) has been held to apply where people of unsound mind are detained in psychiatric facilities; I mentioned the cases of Radu v Germany and X v United Kingdom. As long as there is a link between that initial conviction and any further deprivation of liberty on the basis of unsound mind, you will be compliant with article 5(1)(a). However, you start beginning to worry a little about article 5(1)(a) if that causal link becomes broken by the passage of time or if you have continued to detain the person for a reason different from why they were detained on the conviction in the first place.

With the public protection order, we are also dealing with people who are unfit to plead.

They have not been convicted at all and have been through that strange process where someone is unfit to stand trial. There is a trial-like process to determine whether they are fit to stand trial and whether they have done the deed. I think that reliance on article 5(1)(a) by someone who is unfit to plead would probably be quite dodgy. You would really be looking for article 5(1)(e) to give you comfort in those scenarios.

Mr McCartney: A lot of these things are determined by case law. How certain are you that you can close this down, so that you are not left in breach of article 5 at some time in the future?

Ms Irvine: The convention is a living document; it will continue to evolve. We do our very best from the point at which we are today, but, as with anything in life, law changes. You can only be certain at a specific point in time. We will do our very best to achieve certainty at this time.

Mr McCartney: Bearing in mind the psychological harm, do you think that this has assisted the process by making sure that the Bill is as tight as it can be?

Ms Irvine: I think that it has led us to a good place. It has been a beneficial exercise for us, and, although it is quite late in the day to be making amendments like this, ultimately it will be good for the Bill.

Mr Frew: I hear you talking about time. A time lag could lessen the effect of the public protection order. Forgive my ignorance, but, when you impose an order, will there be a time limit on it?

Ms Irvine: Yes, if you make a public protection order on its own without restriction. There are two types in the Bill, one without and one with restriction. The public protection order without restriction is made for six months. At the end of the six months, you then have the opportunity to extend it, and there are a lot of hoops in schedule 3 to the Bill that you have to jump through if you want to extend the order, obviously on the basis of medical evidence.
The public protection order with restrictions will be made for people who are dangerous and about whom you are particularly worried. They are made either for a period of time or without mentioning a period of time. They are really designed to allow that person to be in a more controlled environment where the state has more control over that person. In the case of someone who is subject to a public protection order without restriction, the medical person in charge can discharge them at the end of and throughout the six-month period, whereas someone subject to an order with restrictions can only be discharged through a more formal route. The Department can remove the restriction element if there is evidence that it is not needed any more. Alternatively, the tribunal can discharge the person.

The difference between a public protection order with and without restriction is that, when the tribunal is looking at discharge, someone who has been subject to a public protection order with restriction can be discharged conditionally or absolutely. If the person is discharged absolutely, they walk away. Where they are discharged conditionally, they will continue to be monitored, and if they breach their conditions, they can be recalled to hospital. There is a period of managing the person, both in hospital and after they have left hospital, to make sure that they are managed and that their health is managed.

Mr Frew: Surely, there is enough infrastructure, at both levels, as regards holding somebody against their will and then holding someone for safety. Is there not enough infrastructure and protections in the process to ensure that you would be ECHR-compliant?

Ms Irvine: You have to strike a balance. We are trying to create something that is ECHR-compliant and therefore fair to the person, while protecting others as well. That is the sort of balance that we try to reach. Balance in anything in life can be difficult to strike, but we hope that we have struck the balance in the Bill, that we are being fair to the individual and that the individual is being held for legitimate, not arbitrary, reasons. They have rights of review, so they can challenge that detention. At the same time, the reason for their detention is to make sure that public safety is foremost.

Mr Frew: I know that we are talking about a specific thing, but, in a specific and general sense, you will never know whether you have hit that balance until it is tested. As you said, the ECHR is a moving, evolving beast, so you will never know at any given time whether you have hit the balance.

Ms Irvine: It is always difficult, but you have a body of case law that has given a precedent and set the parameters for the distance that you can go. So, the ECHR case law gives you boundaries within which you can operate. You would be very foolish to step outside those boundaries. Over time, it may become slightly more nuanced, but, at the moment, we are pretty confident in our understanding of the law with which the ECHR is telling us we must comply.

Mr Frew: What happens if the Assembly passes the Bill, and then we find that we are outside of that broad remit? What are the consequences?

Ms Irvine: First, Bills must be ECHR-compliant or else they are outwith the competence of the Assembly.

Mr Frew: Is that the whole Bill or just a clause?

Ms Irvine: A clause can affect a whole Bill quite badly, so we want to make sure that the Bill is ECHR-compliant. Otherwise, the Attorney General has the ability to refer the matter to the Supreme Court, and that is, obviously, something that nobody wants to happen. If we move past that stage and, in years to come, somebody brings a challenge against a particular clause, domestic courts must interpret the law in a way that is compliant with the ECHR. If the person is still unhappy, they can take a case to the European Court of Human Rights.

Mr Frew: It would be better to get it solved and sorted out now.

Ms Irvine: Definitely.

Mr Frew: If P or someone takes it to court two or three years down the line, will that affect all the other arrangements and protections that have been made through the Bill?

Ms Irvine: We are pretty happy that there is no defect in the Bill — we have done our due diligence on that and are as confident as we can be — but, if a defect is found in the Bill in the future, anything that is not compliant with ECHR will have to be struck down, and you could find that we must amend it. However, we have spent a lot of time trying to make sure that that does not happen. It is part of our job as officials to make sure that we do not end up with a mess like that, but we are only human, at the end of the day.

Mr Frew: You have clause 288.

Ms Irvine: Clause 288 is the subject of discussion with the Committee.

Mr Frew: I am only making trouble, sorry. That is me finished. [Laughter.]

The Chairperson (Mr Ross): When will we get sight of any new wording or some sort of amendment?

Ms Irvine: We are working on it at the minute. I understand that the Committee's timetable is very tight; ours is, obviously, very tight as well. We will do our absolute best to get it to you as soon as we can.

Ms Irvine: We would aim to achieve that. Hopefully.

The Chairperson (Mr Ross): OK. Thank you very much.

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