 House of Commons |
Session 2003 - 04 Publications on the internet Delegated Legislation Committee Debates |
| Mental Health (Amendment) (Northern Ireland) Order 2004
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2.30 pm The Parliamentary Under-Secretary of State for Northern Ireland (Angela Smith): I beg to move,
I welcome serving under your chairmanship, Miss Begg. You have chaired Committees on Northern Ireland orders on a number of occasions, and I look forward to your customary fairness and wit in dealing with us. The order was made in Privy Council on 6 May 2004, subject to the urgent procedure provided for in paragraph 2(1)(b) and 2(2) of the schedule to the Northern Ireland Act 2000. It may help Committee members if I explain the content of the order and the special circumstances that led to use of that procedure. The need to amend the Mental Health (Northern Ireland) Order 1986 arose because of a legal challenge relating to potential incompatibility with article 5 of the European convention on human rights. Under the current 1986 order, the burden of proof is placed on the patient to prove that the criteria justifying his detention in hospital for treatment no longer exist. Article 5 of the ECHR states:
The legislative changes shift the burden of proof to the relevant health and social services trust to show that a person held under the 1986 order should continue to be detained. The existing legislation was recently challenged in the Northern Ireland courts and may be challenged again in future. No judgment has yet been made on that point. However, it is possible that, as the 1986 order is subordinate legislation, the court could strike down the incompatible articles in that order, which could lead to the suspension of the operation of the mental health review tribunal. That action in itself would contravene article 5 of the European convention and would deny an individual access to an appeal mechanism to challenge their detention under the 1986 order. Mr. Alistair Carmichael (Orkney and Shetland) (LD): The Minister has referred to a case that I understand has been heard and which is still advising for a judgment to be issued. Did the Government argue against that case?
Column Number: 4 Angela Smith: I want to give more details on that case, but I must make it clear now that the Government were satisfied that we were acting within the legislation. The legislation justified the actions that were taken. I shall come on to that and give details to the hon. Gentleman.The constitution and direction of the mental health review tribunal are an integral part of the 1986 order. The tribunal provides the vehicle whereby persons who have been detained by virtue of the order have access to an appeal regarding their detention. The legislative change is designed to protect the human rights of patients and mirrors that already enacted in respect of the same incompatibility with the Mental Health Act 1983. The Mental Health Act 1983 (Remedial) Order was laid in 2001. My Department sought legal advice at the time on the need to amend the Northern Ireland provision. The advice then was that no amendment was necessary, as the wording in the Northern Ireland legislation was slightly different, and our interpretation was confirmed by the actions of the tribunal, which always acted to place the burden of proof on the trust. In a parliamentary question of September 2003, Lord Lester of Herne Hill raised the need for an amendment. Again, at the time no amendment was deemed necessary, for the reasons that I have given: the wording was slightly different, and our interpretation was confirmed by the tribunal placing the burden of proof on the trust. In addition, the ongoing independent review of mental health and learning disability has, as part of its remit, consideration of the compatibility of the mental health order with the ECHR. Specifically to remove the incompatibility with the convention, article 3 of this order amends article 77 of the 1986 order to provide that a mental health review tribunal shall direct the discharge of a patient if it is not satisfied that the criteria justifying detention in hospital for treatment continue to exist. Article 4 of this order similarly amends article 78 of the 1986 order. The most expeditious means of dealing with the incompatibility was to make an Order in Council, subject to the urgent procedure provided for in the Northern Ireland Act 2000. That provision is not used lightly. Use of the urgent procedure was necessary to allow the incompatibility to be remedied as soon as possible to ensure parity between UK legislation and Northern Ireland provision. Mrs. Iris Robinson (Strangford) (DUP): Did the Minister consider including within the amendment explicit provision for compensation? If not, will not the new order automatically give rise to a possible violation of article 5 against those proven to have suffered from the incompatibility? Angela Smith: We would argue that no one has suffered from the incompatibility, because the incompatibility that is being addressed by the order is what has been happening in practice. Our legal advice at every stage has been that our interpretation of the legislation is right. The fact that the wording of Northern Ireland legislation differs slightly from Column Number: 5 Great Britain legislation, particularly in England and Wales, meant that we were acting in the correct way. Because the courts may cast doubt on that, we feel that it is wise to address this now to ensure that the legislation does not get struck down. If it were to get struck down we should be in contravention of article 5 of the European convention on human rights.The order before us today ensures that the existence and practice of the tribunal are not impugned. The preservation of the individual's fundamental rights is an imperative in this legislative change. The right to liberty, which article 5 enshrines, is undoubtedly a high constitutional right. Inherent in the whole of the convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. My Department has acted promptly to address the potential risk to human rights in light of an incompatibility. The corresponding legislation in England, the Mental Health Act 1983, was amended by way of a remedial order as set out in the Human Rights Act 1998. The remedial order procedure is not available in this case as the Mental Health (Northern Ireland) Order 1986 is primary rather than secondary legislation. Other potential incompatibilities may exist which will be addressed by the independent regional review of mental health and learning disability, which I have already mentioned. That is due to be completed in 2005. In this instance, the minimum changes have been enacted to allow full consultation and scrutiny to be completed through the deliberations of the review of mental health and learning disability.
2.37 pmMr. Desmond Swayne (New Forest, West) (Con): I thank the Minister for moving the order and I welcome it as my hon. Friends welcomed the order that applied to England and Wales, which was debated on 11 April 2002. Can we revisit the question of compensation, which was raised by the hon. Member for Strangford (Mrs. Robinson)? The Minister explained that this is designed to prevent a breach arising, but that the practice of the tribunals has been such that no breach has yet arisen. Will she nevertheless keep open the possibility of ex gratia compensation if plaintiffs can come forward and claim that they were put at a disadvantage by the way that the tribunals operated in the past? What consideration has been given to the position of schizophrenics who may find it hard to show that they are better in the sense that they cannot get better, although they may have prolonged periods of stability in their condition? What account will be taken of that by the tribunals when they consider their position and the possibility of releasing them from confinement under the existing arrangements? What will it mean in practice, given the overriding requirement of the tribunals to act proportionately under the terms of the convention? What consideration has been given to the possible knock-on effects of the ruling that gave rise to the need to address the issue in the first place? What effect does Column Number: 6 it have on similar tribunals? The Minister may not be able to address that today, but she may be able to deal with the matter in correspondence. What effect will it have on discretionary lifer panels on the parole board, for instance, and on other situations in which establishing where the burden of proof lies may present a similar problem?May I draw the Minister's attention to the Northern Ireland health and social well-being survey, which was published on 20 May? It states that the proportion of respondents whose mental health deteriorated during the past 12 months is one third higher in Northern Ireland than on the mainland. As the order certainly impinges on that situation, what consideration have Ministers given to its cause? ''Time for Change'', a document published in September 2003 by the Northern Ireland Association for Mental Health, states:
The document of the Northern Ireland Association for Mental Health also states:
I am sure that many hon. Members will have shared my own experience of dealing with the families of people who suffer from a mental health condition. They feel enormous frustration and isolation precisely because of an approach, which is described in the document, that does not really address the needs of the patient but is much more suited to the system. That is what we are attempting to address in the order.
2.43 pm
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