Interferences with Article 8: what justification?

Interferences with patient's rights under Article 8 are an increasingly prevalent area of challenge in the mental health arena; they arise both in the context of inpatients and regarding care packages in the community.

Article 8 states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society…for the prevention of disorder or crime…. or for the protection of health and morals…

Article 8 is a qualified right. This means that its scope is qualified by the effect its protection has on the rights of others. In practice, it means that there are a number of exceptions and limitations on the right. Essentially, any interference with a qualified Convention right must be prescribed by law and necessary to achieve one of the listed aims; in the mental health context this is most frequently for the protection of health or morals.

The Human Rights Act 1998 (the HRA), which came into force in October 2000, gives effect to the rights and freedoms enshrined in the European Convention on Human Rights in the UK.

It is well-established that even people in detention, whether in prison or in mental health institutions, retain their rights, at least up to a point; that point being that the exercise of the right obviously cannot have the effect of destroying the purpose and function of the detention in question (1). Thus in the case of imprisonment the right does not extend to allowing prisoners conjugal visits, or to possession of mobile phones, or for that matter single cells. On the other hand it does extend to allowing visits from family and friends, the use of payphones, and the sending and receiving of letters. Therefore the balance is struck between the exercise of the right and the purpose and function of imprisonment (2).

Scope of Article 8

It is generally accepted that the scope of Article 8 is broad; it encompasses a right for personal integrity and autonomy, privacy and family life, which can include:

•  the physical and psychological integrity of a person
• right to personal development
• right to establish and develop relationships with others
• right to establish and develop relationships with the outside world.

Likewise, actions that interfere with Article 8 rights in a mental health field are equally wide-ranging, including for example (but not limited to):

• Monitoring of/regulation of access to correspondence/telephone calls
• Searches of persons or property
• Regulation of or interference with contact (including social, familial and sexual)
• Seclusion
• Recording/videoing/observation
• Supervision
• Regulation of access to the internet
• Regulation of access to social activities.

Many mental health practitioners will recognise the above as common features of care packages or support plans for those suffering with mental disorder. Indeed, for many patients, it is often the case that these types of restrictions actually maximise rather than limit their freedoms (for example, enabling a patient to live in the community rather than remain as an inpatient in hospital).

The challenge for commissioners and care co-ordinators is ensuring that any interference with Article 8 rights are justified under Article 8(2).

How is this achieved?

Capable Consent

The first question to address is whether the patient can give capable consent to the interference? Professionals should adopt the statutory test under ss.2-3 Mental Capacity Act 2005 to consider whether the patient has an impairment of or disturbance in the functioning of their mind or brain that renders them unable to consent; importantly, capacity should be considered for each individual interference as capacity is both issue and time specific.

If the patient can give capable consent, the next question is whether they do in fact give such consent? If there is capable consent to the interference, it is not considered to be an interference, and other than ensuring there is a careful record of capacity and the patient's agreement, no further action need be taken.

Control of the State

Only interferences that are exercised by a public authority are regulated by the HRA. However, s.6(3) of the HRA confirms that a body is a “public authority” for the purposes of the HRA if its functions are public in nature.

Therefore, if a private provider is commissioned by a public authority to provide a package of care in performance of its statutory duty, e.g. aftercare under s.117 Mental Health Act 1983 or s.21 National Assistance Act 1948, it is likely to be considered a public authority.

So the second question would be: is the interference exercised by a public authority? If no, it is not an interference governed by the HRA. If yes, you need to consider the appropriate legal framework.

"In accordance with the Law"

To be "in accordance with the law" the interference must satisfy four features:

1. Have a basis in national law
2. Be accessible to the person concerned
3. Have foreseeable consequences
4.  Be compatible with the rule of law (1)

To be “prescribed by law” means that there must be an ascertainable legal regime governing the interference with the Convention right. The European Court of Human Rights has indicated that the following could constitute “law” for these purposes:

• Statute
• Regulations
• Rules of European law
• Common law
• Rules of a professional body.

The crux of the issue with what amounts to "law" is that it concerns substance and not form.

Two cases in 2012 have confirmed that policies, either of the public authority or overseen by a public authority, can amount to "law" for these purposes, as long as they are:4

1. Grounded in English law - in the context of mental health often any measures taken for a patient's health or wellbeing are likely to be grounded either:
   1. For detained patients in the Mental Health Act 1983 (the MHA) or
   2. For community patients in the Mental Capacity Act 2005 (the MCA) – importantly, a Deprivation of Liberty Authorisation cannot authorise interferences with Article 8, or their associated Codes of Practice.
2. Adequately accessible – the law should be published in a written form accessible to those likely to be affected by it.
3. Precise, certain and foreseeable – those individuals likely to be affected by a law should be able to understand the circumstances in which any restriction may be imposed and to enable such individuals to foresee with a reasonable degree of accuracy the consequences of their actions. Essentially, Convention rights should not be interfered with by law couched in general or ambiguous terms.
4. For the purpose of a legitimate aim – in this case, the legitimate aim is either for the protection of health or morals or for the prevention of crime.
5. Proportionate – the interference should be necessary to achieve the legitimate aim.  However, necessary is not to be equated with indispensable. It amounts to ensuring that there is a fair balance between protecting the individual’s Convention rights and the goal that is being sought. Factors to consider in determining proportionality include:
   1. Whether there is a least restrictive alternative available to achieve the aim?
   2. Whether there are effective safeguards or legal controls over the measures interfering with Convention rights, for example:
      1. Complaints procedure
      2. Regulatory regimes – e.g. Care Quality Commission or Ofsted
      3. Access to scrutiny by a Court – for example, judicial review or through the Court of Protection.

Which Law?

The type of "law" that is required will depend upon the content of the interference, the field that it is designed to cover, and the number and status of those to whom it is addressed. It is acknowledged that not every interference with a mental health patient's Article 8 rights will require a detailed policy approved by the Court of Protection.

The types of law that professionals should consider include:

• MHA – is the interference one that is regulated under the MHA, e.g. a transfer to an alternative hospital may interfere with a patient's right to family life – however, as long as the procedure laid down in the MHA and associated Regulations are followed, it is a lawful interference.
• Care plan/policy authorised either by way of:
• • best interest decision under the MCA – is the interference one that could be authorised by a properly consulted best interest decision under s.4 MCA?
  • declaration by the Court of Protection – is the interference one that properly ought to be considered by the Court of Protection and declared to be in the patient's best interests?

As a rule of thumb, the more invasive and/or the more frequent the interference, the more likely it is that a detailed policy will be required to regulate that interference and that it will need the declaration of the Court of Protection rather than a normal best interest decision.

Content of the Policies

The specific content of the policy will vary depending upon the precise facts and circumstances. Healthcare professionals would be well advised to keep in mind the substance required to make it law. Example headings that might be beneficial include:

Introduction

• Why the interference is required in the current context
• Aim – to ensure that the practice is in accordance with the law
• Purpose – wider purpose of the policy being to maintain and uphold the fundamental rights and freedoms of the patient

Scope

• Who does the policy apply to?
• Which staff must comply with the policy?
• Who owns the policy?
• Who manages/operates/monitors the policy?

Legal Framework

• What is the legal framework underpinning the policy?
• •  Human Rights Act 1998 – Article 8 ECHR (right to respect for privacy, dignity, personal integrity and family life)
  • Mental Capacity Act 2005 – capacity assessment and best interest decision
  • Mental Health Act 1983
  • Code of Practice
  • Declaration of the Court of Protection
• Statement that failure to comply with the policy may result in civil/criminal liability and disciplinary action

Definitions

• Key terms that are going to be used within the policy – in particular, the precise interference

Process

• Circumstances in which the interference will be enforced and circumstances in which it will not
• Specific step-by-step guide to implementing the interference – including who does what and when

Records

• Consider providing bespoke template records to capture the implementation of the interference – what needs to be recorded?
• Where will the records be kept?
• Who needs to complete the record?
• Who needs to review the record?
• When does the record need to be completed?

Training

• What training will staff need about:
• • Implementing the interference – e.g. physical restraint training?
  • The policy itself

Audit

• Daily audit
• Internal audit
• External audit
• Appropriate records to demonstrate audit
• Learning/improvement following audit
• Review of the policy

Complaints

• What complaint processes does the patient have access to – consider commissioning authorities as well as the Provider
• How do they access it?

Conclusion

Professionals should give specific consideration to whether a care package or support plan interferes with a patient's rights under Article 8. If it does those professionals should consider whether the patient can and will give capable consent. If they cannot or will not, professionals will then need to consider under what legal framework will the interference with Article 8 be justified? Consideration should also be given to what documentation needs to be produced and appropriate authority obtained to make the interference lawful? As always, consideration should continue to be given to whether or not the interference continues to be necessary and the least restrictive method to achieve the aim?  All care plans and policies should be updated accordingly.

Footnotes

1. R (P and Q) v Home Secretary [2001] EWCA Civ 1151 at para 78

2. J Council v (1) GU (2) A NHS Trust (3) Care Quality Commission (4) X Limited (11845015) (2012) EWHC 3531 (COP)

3. Herczegfalvy v Austria (1992) 15 EHRR 437

4. J Council v (1) GU (2) A NHS Trust (3) Care Quality Commission (4) X Limited (11845015) (2012) EWHC 3531 (COP) and Munjaz v UK (17 July 2012) Application Number: 2931/06