Source · Select Committees · Human Rights (Joint Committee)
Recommendation 28
28
Accepted
We can see that in narrow circumstances, where the need to ensure the safety of...
Conclusion
We can see that in narrow circumstances, where the need to ensure the safety of the public makes deprivation of liberty in the community the least restrictive option available, being able to impose conditions on the discharge of a restricted patient that amount to a deprivation of liberty may be beneficial and compatible with Article 5 ECHR. However, we agree with evidence we received that effective safeguards against abuse of the power to impose such conditions are crucial. (Conclusion, Paragraph 155)
Government Response Summary
The government agrees on the need for careful use of the power to impose conditions on restricted patient discharge and for effective safeguards, confirming that more safeguards are in place for this cohort, including more frequent and automatic Mental Health Tribunal referrals. They also commit to producing detailed guidance for the Justice Secretary's functions and for the Mental Health Tribunal to ensure scrutiny.
Government Response
Accepted
HM Government
Accepted
We agree with the Committee that this power must only be used when necessary due to the level of restriction imposed on the individual, and the extent of supervision these patients may be subject to. Therefore, this cohort of patients will have more safeguards in place compared to other restricted patients, which include more frequent access and automatic referral to the Mental Health Tribunal. However, we are not accepting the recommendation for the following reasons. In reaching the appropriate frequency of tribunal access, careful consideration has been given to finding the correct balance between providing scrutiny on this restrictive form of discharge, and the clinical needs of this cohort. Many of these patients are unlikely to be suitable for absolute discharge, owing to the enduring nature of their mental disorders and their associated risk profiles. Therefore, increasing the frequency of Tribunal reviews further could risk causing distress and negatively impact on the clinical stability and wellbeing of this cohort. We fully agree with the Committee on the importance of full and detailed guidance and that’s why we’re taking several measures to deliver this. The Mental Health Casework Section, who discharge the Justice Secretary’s functions under Part 3 of the MHA, are producing detailed guidance setting out the circumstances in which the Justice Secretary will make use of this power, and will monitor its use after the power has commenced. His Majesty’s Court and Tribunal Service are also preparing complementary guidance and training to ensure the Mental Health Tribunal are prepared to hear these patients’ cases. The Justice Secretary also has the power to direct patients to the Mental Health Tribunal to provide further independent scrutiny on an ad hoc basis in addition to regular automatic referrals which will ensure that any patient that does not apply to the Tribunal still has their case heard.