Article 2 v Article 5

You know that situation, often covered on this blog, whereby someone requires hospital admission under the MHA, but there’s no bed, and the dilemma emerges about how the situation should be managed until such time as a bed is found?  It can give rise to a perceived conflict between Article 2 and Article 5 ECHR obligations and that’s what I want to cover in this post.

  • Article 2 covers the right to life – a positive duty to protect the right to life where they know it may be threatened, inc by known risk of suicide.
  • Article 5 covers the right to liberty – duty to ensure the state only interferes with someone’s liberty in some circumstances which must be covered by domestic law.

A scenario for you:  the police attend a report of a vulnerable person in a park and decide they are highly vulnerable, distressed and at risk or self-injury.  Because of an immediate need for care to prevent such injury, the person is detained by the police under s136 of the Mental Health Act 1983 and removed to a Place of Safety, in a mental health unit, for assessment.  This provision, in case you’re unaware, allows the Local Authority and NHS a 24hr period in which to arrange for assessment by an Approved Mental Health Professional (AMHP) and one or two doctors, depending on circumstances.  Any care arrangements required must be completed within the 24hrs timescale, for example arranging any inpatient mental health bed which is deemed neccessary if the patient needs to be “sectioned” in the opinion of the professionals.

This can prove challenging for the mental health system.  Indeed, it was challenging before the law was changed in 2017 to reduce the assessment period to 24hrs.  When I first joined the police, s136 allowed for detention at a Place of Safety for up to 72hrs and in 2012 the European Court of Human Rights ruled on an Article 3 ECHR case from 2004 (the right not to suffer inhumane or degrading treatment) where a man spent more than 72hrs in a police cell, pending a bed being identified.  So if there were examples before austerity and pandemics where 72hrs wasn’t long enough, we were always going to see cases after the change where 24hrs isn’t sufficient either.  And don’t forget: demand on the mental health system is going up, at the point where they have less time to sort things out for people.  In addition to the law being changed in 2017, there has also been a reduction in the number of inpatient beds over the first two decades of the century, significantly more people requiring support from secondary mental health services and a rise in the number of people being “sectioned” each year.

CONFLICT

It’s struck me for the 18yrs I’ve now worked on this (on and off) that conflict is inevitable – and conflict of various types.  The competing pressures created by article 2 and article 5 is just one example.  In our hypothetical example, the patient cannot be lawfully held in a Place of Safety for more than 24hrs just for a bed to be identified (because domestic law doesn’t allow for that) – so the person is legally at liberty to leave the location and go where they wish.  But if that person is known to be actively suicidal or a risk to others, it places pressure on the professionals involved – the AMHPs will fairly point out it’s the NHS’s responsibiltiy to identify a bed in a hopsital to which the AMHP can make an application; the Doctor may point out the cannot just magic up a bed that doesn’t exist and the police will say they have no authority to keep the person detained beyond 24hrs.  But all of the professionals will want to do their best by this person who, ultimately, has legal rights in this situation as well as the professionals having legal responsibilities.

Because of Article 5, the person cannot be held against their will, because domestic law doesn’t provide for more than 24hrs of detention under s136. If they are actively suicidal and liable to die by suicide if they were allowed to leave, do the professionals not have a duty to intervene and keep the person safe?  Well, yes, but here’s the thing: interventions which interfere with someone’s European Convention Rights must be proportionate, lawful, appropriate and necessary – the second of these principles is highlighted for obvious reasons.  If s136 has expired … what’s the lawful basis for depriving someone of their liberty?  If the person is acutely unwell and their Article 2 rights are engaged by the risk if they leave a Place of Safety, does that not render the officers and staff liable?!

Here’s the thing: the duty to assess patients under the MHA and to admit them where assessment indicates that’s unavoidably necessary, lies with the AMHP service and the NHS, not the police.  So yes, the duty of the state to protect the person’s Article 2 rights exists unambiguously, but it is a duty for the Local Authority and the NHS where police powers have been used and expired (or where such powers could not be engaged at all.)  This has all been put to the test in coroner’s and civil cases over the years and I’ve covered them on this blog: the death of Michael Thompson in London related to a situation where the AMHP service had been requested to conduct an urgent MHA assessment and failed to do so before a fatal, untoward outcome; David Stacey died in Leicester in a situation where an MHA assessment had concluded admission was unavoidable but there was no bed.  Police services were involved in each of these cases, but in both there was no substantive criticism of the police or officers for making a professional assessment that they had exhausted the limit of their powers and obligations.  The criticism (findings of neglect in both cases) was for the AMHP services and the NHS for failing to assess or admit the patient in a timely way to ensure their ECHR rights.

LEGAL STRATEGIES

At the risk of making an obvious point, legal hearings are interested in legal issues, as well as the other factors.  In amidst the details of Coroner’s cases with which I’ve been involved or where detailed PFD reports are available, it’s obvious that in the end, the law matters to how courts view events.  It would be odd if it were otherwise.  In particular, the issue of no MHA application occuring because there is no bed (or indeed, no MHA assessment occuring because there is no bed) have been tested a number of times and found wanting.  In the end, public authorities have legal obligations to ensure European Convention Rights, see s6 of the Human Rights Act 1998 – “it is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

So they need to plan and prepare for the reality of how these rights are place at risk by events – I don’t believe we do this.  For example, we could talk again about how the NHS doesn’t always specify hospitals for urgent admissions, as they are required by law to do, under s140 Mental Health Act.  Surely the process of specification would lead to more questions about how those hospitals will manage that in reality and then start the planning to deliver on that and Civil Contingencies Act planning would cover it as well?  Maybe it’s just me.

I have heard it repeatedly stated, claimed (and indeed, I once heard it screamed!) that “there is NEVER, not a bed!”  Mental health professionals on Twitter were debating this only yesterday after one psychiatrist claimed to have been told in the morning there are no psychiatric beds available in the UK – quite a challenge to the narrative that there is “never not a bed”.  It creates the legal problem highlighted above.

  • A local authority and any NHS organisation, once engaged with a vulnerable patient someone (ie, during a statutory MHA assessment) are tasked with ensuring someone’s Convention rights – they have an obligation to do so.
  • The MHA presumes there are always beds available – whether rightly or whether wrongly, you can debate whether services have moved away from legal frameworks or the law hasn’t kept pace with modern mental health care; but you can’t debate the basis on which the MHA is written because it’s there for us all to read.  See what s13 MHA and s140 MHA says, then see what s6 HRA says and you tell me what the system should look like.
  • A failure to assess or admit someone to hospital when acutely mentally ill in a circumstance which then gives rise to a suicide or accidental death, engages Article 2 – there are examples of Coroner’s Article 2 inquests and civil claims which have laid this bare with findings of neglect or liability against local authorities and trusts.
  • Detaining someone entirely outside the constraints of domestic law engages Article 5 (if not also, Article 3 and 8, depending on circumstances) – there are examples of people challenging false imprisonment even where unlawful detention lasts a few minutes, never mind the days and sometimes weeks it can take to identify a mental health bed.

So back to our example: where the s136 power is due to expire and we see Articles 2 and 5 (and potentially others) engaged, is it the responsibility of the police to protect life?!  Well, sort of, yes.  All police training in modern times quite rightly rams home the ECHR – I see this on command training for public order, for firearms and I know from detectives’ training it is there for issues around surveillance and so on.  So why wouldn’t it also apply to police responses to mental health? – the fact is, it really does apply.  And on that training for other matters, there is an acronym that officers are taught, to help them think through the human rights implications of actions they take.  PLAN – proportionate, lawful, appropriate and neccessary.  I’ll emphasise the ‘L’ for the purposes of the final point I want to make:

LAWFUL ACTION

When states agencies are busy ensuring they have discharged a duty of care or obligation towards someone where the ECHR is engaged, they must do so lawfully.  For example, it may be argued the police have an Article 2 obligation when they are in someone’s home during a mental health crisis and they believe the person is suicidal.  If that same kind of incident had occurred in a park, they might consider s136 MHA, but they can’t do that in someone’s home.  You can’t just do it anyway and then say “Well, we had an Article 2 obligation!”  The lawful mitigation of that risk can occur by officers (or paramedics) contacting the AMHP service and asking the Local Authority to consider their duty in s13 MHA to convene a Mental Health Act assessment – the Sessay case (2010) reinforced this legal point.  Some police officers reading this may already be laughing, at the thought you could ring unannounced and stand any chance at all of getting a response in a timely way.  Well firstly, it has been known to happen and stranger things have happened – if you don’t ask, you don’t get.  But secondly, that’s how Parliament have decided they want it resolved – this was clear during the review and revision of the police powers in the Mental Health Act in 2017.  I was involved in that work, so saw it first hand – they really don’t want police acting unilaterally in private premises and this is the deliberate will of your Parliament.  So if officers were to just remove someone as if under s136, they cannot rely on a defence of “Article 2, your honour!”

In January 2021, the family of Mr Michael Thompson who died in London in 2016 brought a civil action against a London authority because an AMHP service had failed to undertake a timely assessment.  Amidst some attempt to suggest police inaction (which had also been the strategy at the inquest), there was an Article 2 finding against the authority and no finding against the police who had been at the limit of their legal powers.  This is just one example of several I could give of where failure to act and a legal strategy of pointing towards policing failed.  So it’s simply not true to suggest that where officers conscientiously, diligently and responsibly point out the limits of their lawful authority (as decided and reinforced by Parliament in the recent past), they will remain liable to failing to undertake unlawful actions which started being considered because other public authorities had declined to fulfill their statutory role, as set out.

I’ve worried for years that culture and practice around MHA admission has evolved away from the legal frameworks that govern it – you can argue instead the law has failed to keep pace, but I would have thought we should be ensuring we can operate legally until such time as Parliament decides it wants things done differently.  You only have to look at the PFD notices on the Chief Coroner’s website to see problems – many relevant examples are linked in the resources pages of this blog.  One question for all officers at all levels to ask is this: to what extent is it my responsibility or that of the police service, to wilfully breach legal frameworks to an effort to keep people safe?  You might argue you’d rather be sued for keeping someone safe than prosecuted for neglecting them and they come to harm or hurt someone else? – it’s a fair instinct.  But here’s the bigger question: if your unlawful, ethically driven actions, in contravention of what Parliament has laid down, then contributes to a different kind of untoward outcome like an Article 3 finding (inhumane, degrading treatment) or another kind of Article 2 outcome (like a death in custody), how do you defend it?

And are you willing to be investigated for unlawful act manslaughter over a period of years?  This question is neither rhetorical, nor hypothetical.  But the answer to a challenge for violating Articles 3, 5 or 8 cannot simply be, “Article 2.”


Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2022


I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk