Policy paper

Mental Health Bill: memorandum on European Convention on Human Rights (ECHR)

Published 14 November 2024

Applies to England and Wales

Introduction

This memorandum addresses issues arising under the European Convention on Human Rights (‘ECHR’ or ‘the convention’) in relation to the Mental Health Bill 2025 (‘the bill’). The memorandum has been prepared by the Department of Health and Social Care. 

On introduction in the House of Lords, the Baroness Merron has made a statement under section 19(1)(a) of the Human Rights Act 1998 that, in her view, the provisions of the bill are compatible with the convention rights.

Overview of the bill

1. The bill amends the Mental Health Act 1983 (‘the act’), which provides for the assessment, treatment and rights of people who are detained in hospital for mental disorder where that detention is necessary for their health and safety or the protection of others. The act applies to ‘civil’ patients (‘part 2 patients’) and those in the criminal justice system (‘part 3 patients’). It also applies to those subject to restrictions in the community where those restrictions are imposed under the act.

2. The bill’s purpose is to reform and modernise the act to provide an effective framework for services to support people experiencing the most serious mental health conditions. The bill follows an independent review of the act, which published its final report in December 2018, a white paper, published in January 2021, and a consultation response. The bill will implement the majority of the recommendations for legislative change made by the independent review.

3. It is considered that the bill engages the convention rights, in particular articles 2, 3, 5, 8 and 14, as listed below. This memorandum does not address issues or provisions that bolster existing compliance with convention rights or are not substantive.

Provisions of the ECHR that are engaged

Article 2

4. Article 2 (Right to life) provides, insofar as is relevant:

a) everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law

5. Article 2 includes a positive obligation on States to safeguard the lives of those within its jurisdiction. This obligation may arise where the risk to life is derived from self-harm or suicide if it can be established that the authorities knew, or should have known, of the existence of a real and immediate risk to life and failed to take reasonable measures to avoid that risk^{[footnote 1]}.

6. The content of the bill has been informed by 4 principles, identified by the independent review. These are:

• choice and autonomy
• least restriction
• therapeutic benefit
• the person as an individual

The government considers that the act, as amended by the provisions in the bill, continues to provide an article 2 compliant framework that allows action to be taken where necessary to avoid the risk to life.

Article 3

7. Article 3 (prohibition of torture) provides:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

8. Ill-treatment must attain a level of severity to engage article 3, which involves consideration of all the circumstances of the case, such as duration of the treatment, its physical or mental effects and, in some cases, the sex, age and health of the victim.^{[footnote 2]}

9. Detention under the act may engage article 3 in relation to the conditions of detention, compulsory treatment and restrictive measures such as restraint and seclusion.

10. The government considers that the act remains compliant with article 3 and that the amendments in this bill reduce rather than increase the likelihood of a person experiencing ill-treatment while subject to the act.

Article 5

11. Article 5 (right to liberty and security) provides, insofar as is relevant:

1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a) the lawful detention of a person after conviction by a competent court

c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so

e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants

4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

12. Article 5(1)(e) is engaged in relation to civil patients, whereas 5(1)(a) (in the case of convicted offenders), (c) (in the cases of unconvicted accused persons) and (e) (in all cases) are engaged in relation to part 3 patients: X v United Kingdom number 7215/75.

13. An individual cannot be deprived of his liberty under article 5(1)(e) unless the following 3 minimum conditions are satisfied (Winterwerp v the Netherlands, application number 6301/73):

a) the individual must be reliably shown, by objective medical expertise, to be of unsound mind, unless emergency detention is required

b) the individual’s mental disorder must be of a kind to warrant compulsory confinement and the deprivation of liberty must be shown to have been necessary in the circumstances

c) the mental disorder, verified by objective medical evidence, must persist throughout the period of detention

14. Article 5(4) provides the right of a person to bring proceedings to have their detention scrutinised by the courts and for this to be done so speedily. This review must consider the substantive reasons for detention rather than be limited to procedural issues^{[footnote 3]}.

15. The government considers that the act is currently compliant with article 5 and that this bill bolsters that compliance by ensuring, for example, that autistic people and those with a learning disability cannot be made subject to compulsory powers for detention and treatment under part 2 unless they have a co-occurring psychiatric disorder for which appropriate medical treatment is available (see paragraph 25 below), and by introducing additional safeguards.

Article 8

16. Article 8 (right to family and private life) provides:

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 such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

17. Medical treatment against a person’s wishes has been held to interfere with article 8 rights. Conversely States may be under a positive obligation to protect persons suffering from mental health problems^{[footnote 4]}.

18. An interference with article 8 rights must be in accordance with procedures prescribed by law, such as the procedures in the act. The protection of a person’s mental health is a legitimate aim under article 8, and any interference must be balanced against the impact of those affected.

19. The government considers that this bill is compliant with article 8 as those new measures that may infringe on article 8 pursue the legitimate aim of one or more of the bill’s 4 core principles, or the act’s underlying aims (including, where relevant and particularly in the context of part 3 patients, public protection), and do so in a proportionate manner.

Article 14

20. Article 14 of the ECHR relates to the prohibition of discrimination. It reads as follows:

The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

21. Article 14 does not provide free-standing rights but must be considered in conjunction with another substantive provision. While it is necessary for the issue to fall within the remit of one of the substantive rights, it is not necessary to show a violation of that right for article 14 to be engaged^{[footnote 5]}.

22. To fall within scope of article 14 a claimant must be within one of the groups listed or have ‘others status’. They must also show difference in treatment between themselves and a comparator, in other words ‘persons in an analogous or relevantly similar situation’^{[footnote 6]}.

23. Difference in treatment will not be discriminatory, and thus not contravene article 14, where the measure has a legitimate aim, there is a link between the measure and the aim, and the measure is proportionate - in other words, strikes a fair balance between the aim pursued and the rights and freedoms of those impacted.

24. The government considers that this bill is compliant with article 14. The act rightly differentiates between different patients subject to it and these amendments do likewise, particularly in relation to restricted part 3 patients and also in respect of people with a learning disability and autistic people. The government considers that many of the amendments in the bill draw distinctions between groups that are not sufficiently analogous to serve as comparators under article 14, and further that any differential treatments of sufficiently comparable cohorts are justified as proportionate measures to achieve the bill’s objectives.

Consideration of compliance of the provisions of the bill

Clause 3: application of the Mental Health Act 1983 - autism and learning disability

25. The bill makes significant changes in the scope of part 2 of the act’s application to those with learning disability or autism, such that they can no longer be detained for treatment or made subject to a community treatment order unless they are also suffering from a psychiatric disorder (defined as a mental disorder other than a learning disability or autism). They may still be detained for an initial, time-limited assessment or made subject to guardianship. In future, people with learning disability may only be made subject to guardianship, as at present, if they present abnormally aggressive or seriously irresponsible conduct (their learning disability has ‘serious behavioural consequences’). These amendments do not affect the application of part 3 of the act to people with a learning disability or to autistic people.

26. The government considers that these amendments engage but do not infringe articles 5 and 8. Article 5 compliance is bolstered by limiting the instances in which autistic people and those with a learning disability can be detained, and any article 8 interference by guardianship remains as at present. The government has also considered article 14 in respect of the following.

Scope of part 2

27. The government has considered whether the exclusion from detention for treatment and community treatment orders, as described above, constitutes more favourable treatment of those with autism or learning disability as compared to those with other mental disorders.

Firstly, the government does not consider that these groups are comparators for the purposes of article 14. There are significant differences between those with autism and learning disabilities and those with other mental disorders, both clinically and in the context of detention under the act: patients with a learning disability and autistic people are at a significant disadvantage and suffer worse outcomes when detained under the act.

Secondly, any differential treatment is justified as a proportionate measure to achieve the goal of ensuring that compulsion under the act is used only where necessary and to address the poor outcomes of those with a learning disability and of autistic people. The independent review raised significant concerns around the use of the act in relation to those with a learning disability and to autistic people, including:

a) inappropriate detention due to lack of care in community settings

b) the heightened impact of restraint and other restrictive practices, and of changes to location and routine caused by admission

c) the particular lack of understanding of the needs of these patients (page 184 of the independent review)

28. The government therefore considers that additional measures and safeguards are required to improve the experiences and outcome of these patients, and that these measures are proportionate in pursuance of that aim. It should also be noted that the amended definition of appropriate treatment ensures that no one can be detained unless there is a reasonable prospect of a therapeutic benefit to them, so any differential treatment is narrow.

Abnormally aggressive or seriously irresponsible conduct

29. The amendments maintain the current position that learning disability only constitutes mental disorder under certain provisions of the act where it is associated with abnormally aggressive or seriously irresponsible conduct. The government is satisfied that this position remains compliant with article 14.

30. The government considered whether to extend this additional criterion to those with autism but decided not to do so. It considers that any difference is justified given that the narrowing, via clause 3, of the circumstances in which an autistic person can be detained, together with the new therapeutic benefit requirement, already achieve the objective of ensuring that those with autism are made subject to the act in only very limited circumstances.

Part 3 application of the act: patients with autism or learning disability

31. These amendments do not apply to part 3 patients. As such, the current position in the act for mentally disordered autistic people or those with a learning disability, which is currently compatible with the convention, is not changing.

32. Further, removing the ability of the courts to order a person to hospital, or the Secretary of State to transfer them from prison, would mean that autistic people and those with a learning disability which has serious behavioural consequences would, unless they have a co-occurring psychiatric disorder, be sent to or remain in prison or a youth detention facility.

The current framework allows the court or Secretary of State to take into account all the circumstances when considering sentencing or transfer, and this should remain, so that these individuals can be detained in the most appropriate environment. It is likely to have a more beneficial outcome with more offenders detained in more appropriate settings, than creating a blanket ban on detention under the act for these patients without a co-occurring mental disorder.

As such, even if these patients are in an analogous situation under article 14, the government considers this to be a proportionate measure to achieve the above aim.

Clause 4: people with autism or learning disability - reviews

33. Clause 4 requires a ‘responsible commissioner’ to make arrangements for reviews into the care, treatment, and in some cases certain educational needs, of autistic people and those with a learning disability subject to certain provisions of the act. The review will consider a patient’s needs in these domains, how to meet them, how to ensure their safety in hospital, discharge where appropriate and how to reduce the risk of readmission, given detention can be unnecessarily protracted and fail to meet the needs of these patients. The amendments also require a report to be prepared following a review.

34. Given that these reviews will document a patient’s personal information, including health data, article 8 is engaged. Any processing of data for the purposes of conducting a review (including the drafting of any report) must comply with article 8 and the UK General Data Protection Regulation (‘the UKGDPR’). The government will issue guidance under the provisions in the bill to help ensure that the exercise of functions under this clause will comply with article 8 and the UKGDPR. The content of that guidance must itself comply with article 8 and the UKGDPR.

35. The government also considers that any interference occasioned by the clauses themselves is justified and proportionate, particularly as these amendments:

a) are intended to reduce the disadvantage experienced by those with a learning disability or autistic people, as set out in paragraph 27

b) provide an additional safeguard as patients must consent to a review taking place, or if they lack capacity to do so, a review must be in their best interests

36. This clause applies to autistic people and those with a learning disability who are subject to certain provisions of the act, and as such the government has considered whether this discriminates against those with a mental disorder without these conditions contrary to article 14. It considers that any differential treatment is justified as a proportionate response to the disadvantage suffered by those with a learning disability, or autistic people, as set out at paragraph 27.

37. The government has also considered article 14 in relation to patients with a learning disability or autistic people subject to provisions of the act that will not attract a review. The government considers that the 2 situations are not comparable or that any differential treatment is justified as the non-qualifying sections are short-term or emergency holding powers, or involve treatment in the community, where a review is less needed.

Clause 4: people with autism or learning disability - registers

38. Clause 4 also introduces a duty on each integrated care board (ICB) to maintain a register of people with a learning disability or of autistic people for whom they have commissioning responsibility who have risk factors for detention under the act. ICBs and local authorities must have regard to the register (or information obtained under the provisions), when carrying out certain commissioning functions.

39. This measure will engage article 8 as the register will record personal information. It will not be publicly available. It should also be noted that, as with reviews above, a person must consent to their inclusion on the register, or if they lack capacity to do so, inclusion must be in their best interests, significantly reducing the nature and scale of any infringement. The government considers that any such interference will be a proportionate measure in pursuit of a legitimate aim: to help improve the support of those with a learning disability and of autistic people and reduce inappropriate admissions, as per paragraph 27 above.

40. The government has considered whether this measure discriminates against those with other mental health conditions, who will not be included in the register, contrary to article 14 in conjunction with articles 5 or 8; specifically, whether these duties will advantage those with a learning disability or autistic people by decreasing their risk of admission. The government considers that, firstly, as above, those with a learning disability and autistic people are not in a comparable position to those with other conditions in this regard. Secondly, any differential treatment is justified by the aim of seeking to improve the support of autistic people and those with a learning disability and reduce inappropriate admissions.

Clauses 4 to 7: grounds for detention

41. The bill amends the legal test for detention (and thus also discharge) under part 2 by:

a) introducing a need for a risk of ‘serious harm’ to the health and safety of the patient or others

b) introducing a requirement to consider the likelihood of harm

c) amending the definition of appropriate medical treatment

42. These amendments will apply to part 2 patients on admission and before the tribunal. Changes (a) and (b) will not apply to the admission of part 3 patients, who are already treated according to specialist risk criteria, but will apply before the tribunal.

43. The government considers that these amendments will raise the risk threshold for detention under the act for part 2 patients and thus bolster compliance with article 5.

44. The government has considered whether the different risk criteria for part 2 and part 3 patients gives rise to discrimination under article 14 in conjunction with article 5.

45. Firstly, part 3 patients already have tailored risk criteria as mentally disordered offenders have different risk profiles than mentally disordered members of the public who have not committed an offence.

Secondly, even if cohorts treated differently were held to be in analogous positions, the government considers the difference to be justified as a proportionate measure in pursuit of a legitimate aim. Changing the detention criteria for part 3 patients would limit the scope for professional discretion or judgment with regard to risk, and therefore compromise the Secretary of State for Justice (and the court’s) ability to adequately protect the public from risk of harm from sometimes serious or violent offenders.

The Ministry of Justice considers that the current criteria for detention under part 3 of the act enables professionals to make the right decisions for vulnerable offenders and defendants, including where this requires diversion from criminal justice settings into a hospital setting. The different treatment is therefore proportionate, striking a balance between the patient’s rights and the general interest in protecting the public.

It is therefore considered that, because of the nature and purpose of part 3, and the fact the alternative in these cases is detention in prison, and given the wide margin of appreciation afforded to States in the area of penal policy^{[footnote 7]} this difference of treatment is justifiable in pursuing the legitimate aim of ensuring vulnerable individuals in the criminal justice system receive the correct care in the right environment, and to ensure the public remains adequately protected.

Clauses 11 to 19: consent to treatment

46. The aim in respect of these clauses is generally to enhance patient rights over the administration of compulsory medical treatment and place additional requirements on clinicians before treatment can be given, in particular by:

a) requiring clinicians to apply a checklist when determining which treatment should be given to a patient, which includes considering the patient’s wishes and feelings

b) permitting medication contrary to a refusal by a patient with the requisite capacity (at the time of treatment or in the past) only where there are “compelling reasons” to do so

c) engaging the second opinion approved doctor (SOAD) at an earlier stage in a patient’s detention, and in some cases before treatment can be administered

d) prohibiting the compulsory treatment on an urgent basis of those with the relevant capacity in order to alleviate serious suffering, as is currently permitted by the act (and only permitting treatment in the face of a capacious refusal based on a SOAD certificate and ‘compelling reasons’)

e) requiring a SOAD certificate within 48 hours in order to administer electro-convulsive therapy (ECT) where a patient with capacity has refused the treatment (at the time of treatment or in the past)

47. The government considers that the treatment regime under the act is compliant with article 8 and that these amendments bolster that compliance, increasing patients’ autonomy over treatment decisions.

48. Compulsory treatment is capable of engaging article 3 of the ECHR, if its effect on the person concerned reaches a sufficient level of severity and if the free and informed consent of the patient has not been forthcoming^{[footnote 8]}. The government does not consider that these amendments engage article 3.

Clause 20: care and treatment plans

49. Clause 20 will require an appropriate practitioner to prepare a care and treatment plan for certain patients subject to the act. This will set out the plan for meeting the patient’s needs arising from or related to their mental health. Regulations will specify the information to be included in the plan, which may include information about persons connected to the patient for specific (and limited) purposes (as set out in the clause). The practitioner must also consult specified persons in the creation or review of the plan.

50. As the plan will document personal data, both of the patient and potentially their connected persons, article 8 is engaged. The government is satisfied that the creation of these plans pursues legitimate aims:

• to ensure greater transparency in clinical decision making, particularly those relating to treatment and restrictive practices
• to give better regard to the patient’s wishes
• to better involve those connected to the patient’s treatment
• to bolster ongoing reviews of the detention criteria to ensure detention is still appropriate

The government is also satisfied that the measure is proportionate, though the detail will be provided for in regulations. The government will ensure that the regulations, and the code of practice, will comply with article 8 and the UKGDPR.

51. Clause 20 does not apply to patients held under short-term or emergency holding powers. The government does not consider that these patients are disadvantaged under article 14 in conjunction with articles 5 or 8. The measure is targeted: the aims of these plans, as above, are most needed for those patients on longer term sections or subject to other compulsory provisions. It would not be proportionate to require such a detailed document to be prepared in relation to a patient detained for a very short time. The government does not consider that there is differential treatment, but in the alternative considers that any such treatment is justified.

Clauses 23 to 27: nominated person

52. The bill will introduce a new nominated person role. The nominated person will act as an important safeguard for the rights of the patient; for instance, they have powers to block admission to hospital and discharge a patient against clinical opinion. A patient can choose their nominated person if they have capacity or competence to do so.

53. The bill does not remove any of the nearest relative’s existing powers. Instead, these will be transferred to the nominated person role. Further, the nominated person will have additional powers:

a) a right to be consulted about statutory care and treatment plans

b) a right to be consulted about transfers between hospitals, and renewals and extensions to the patient’s detention or community treatment order (CTO)

c) the power to object to the use of a CTO

54. These provisions also introduce a nominated person for part 3 patients remanded or subject to an interim order under sections 35, 36 and 38, and for restricted patients. This new provision enables these part 3 patients to access the part 2 nominated person safeguards where appropriate, subject to exceptions owing to duration of orders and limitations in the interests of public safety (in line with existing provision for part 3 patients throughout the act).

55. The policy is therefore intended to protect the patient’s existing rights under articles 5 and 8 and improve the rights of part 3 patients where appropriate to do so (see below). In addition, there are provisions in the bill to allow unsuitable nominated persons to be removed from their role, for instance due to safeguarding concerns.

56. However, a nominated person for a part 3 patient does not have all the powers of those in respect of part 2 patients. This difference is a proportionate measure for the protection of the public. It would not be appropriate for a family member to effectively terminate the detention of a person convicted of an offence or awaiting trial. As part 3 patients do not currently have a nearest relative, these amendments bolster the rights of all patients, while maintaining necessary distinctions and protections.

Clauses 30 to 31: references to the tribunal

57. In compliance with article 5(4) the act provides a suite of review mechanisms, including automatic reviews by the tribunal where patients do not apply themselves. The act specifies periods after which, absent consideration by the tribunal, a referral must be made. The bill reduces a number of these periods:

a) a part 2 patient detained in hospital must currently be referred once on the expiry of the first 6 months of admission and every 3 years thereafter. The bill reduces this to the expiry of the first 3 months, 12 months, and yearly thereafter

b) a part 3 patient detained in hospital must currently be referred every 3 years from the date of their admission. The bill reduces this to yearly referrals

c) the bill introduces referrals for conditionally discharged patients:

• on the expiry of 12 months and every 2 years thereafter for patients subject to a deprivation of liberty (see paragraph 66)
• on the expiry of 2 years and every 4 years thereafter for those not subject to a deprivation of liberty

58. These changes increase the regularity of reviews and as such ensure even greater compliance with article 5(4). As the review periods vary according to the provisions under which patients are detained the government has considered whether this may amount to discrimination under article 14 in conjunction with article 5(4). In particular:

a) part 2 patients detained in hospital are referred to the tribunal on the expiry of 3 months of their admission, whereas part 3 patients detained in hospital are referred on the expiry of 12 months. Both are thereafter referred annually b) conditionally discharged patients are referred to the tribunal within the first 12 months or 2 years and thereafter in each 2- or 4-year period (depending on whether they are deprived of their liberty)

59. The government considers that the differential treatment is justified as a proportionate measure in pursuance of a legitimate aim. The purpose of these amendments is to ensure increased independent judicial review and scrutiny for all patients; hence the frequency of reviews has been increased in all cases. As for the differential treatment between part 2 and part 3 patients (including conditionally discharged patients), where the cohorts are considered to be in an analogous position (which, in some cases such as restricted patients, they are not), the government considers that the differential treatment is justified as a proportionate measure in pursuance of this legitimate aim.

60. In particular, part 3 patients are detained in hospital under a robust judge-led process and have committed an offence grave enough to a be subject to possible imprisonment. The less frequent automatic referrals protects the public from harm and prevents the criminal justice system being undermined.

61. Further, the measures are proportionate given:

a) the differences mainly arise in the first 12 months of a patient’s detention in hospital: after the first 12 months, automatic referral periods are the same for both part 2 and 3 patients detained in hospital

b) in respect of conditionally discharged patients:

• they are, due to their disorder and the risk they pose, less likely to recover and be fully discharged in any event thus the difference versus other part 3 patients is justifiable

• the difference for conditionally discharged patients who are subject to a deprivation of liberty versus those who are not, is justifiable given they are in restrictive conditions, which justifies those more frequent referrals

Clause 33: conditional discharge subject to deprivation of liberty conditions

62. Under the act, restricted patients^{[footnote 9]} may be discharged subject to certain conditions. This is known as conditional discharge. In Secretary of State for Justice v MM [2018] UKSC 60 the Supreme Court concluded that the act does not permit the tribunal or the Secretary of State to impose conditions that amount to a deprivation of liberty under article 5. This has left a lacuna for patients who no longer require treatment in hospital but cannot be safely managed in the community without conditions amounting to a deprivation of liberty. The bill provides new powers to allow such a patient to be discharged with deprivation of liberty conditions.

63. As a patient will be deprived of their liberty by the conditions of their discharge, article 5 is engaged. Restricted patients are subject to a hybrid article 5(1)(a) and 5(1)(e) order^{[footnote 10]}. The government considers that the requirements of article 5(1)(a) are met by the subsistence of the patient’s hospital and restriction order. In addition, the 3 requirements of Winterwerp (see paragraph 13) for depriving someone of unsound mind, under article 5(1)(e) will continue to be met, as with their in-patient detention.

64. Firstly, the detention will be in accordance with a procedure prescribed by law.

65. Secondly, such conditions may only be imposed by the Secretary of State or the tribunal where they are necessary to protect the public from serious harm. It is noted that a person may be deprived of their liberty under article 5(1)(e) not only where they require treatment for mental disorder, but also where they require control and supervision to prevent them from causing harm to themselves or others (including in situations where no treatment is envisioned, but there is justification based on the seriousness of the state of the person’s health and the need to protect them and others)^{[footnote 11]}.

66. Thirdly, their detention is scrutinised by a suite of review mechanisms: they may apply to the tribunal within the first 6 months of discharge and every 2 years thereafter; the Secretary of State may refer the patient to the tribunal at any time; and as described above, the hospital must refer the matter to the tribunal within 12 months of the patient’s discharge and every 2 years thereafter. The patient may also ask for a review of the conditions by the Secretary of State at any time.

Clause 35: transfer from prison to hospital - time limits

67. The act provides for the transfer of mentally disordered prisoners to hospital in defined circumstances. Clause 35 of the bill introduces a 28-day time limit for such transfers. Ensuring timely access to medical treatment in hospital bolsters compliance with a range of ECHR provisions, such as articles 2, 3, 5 and 8.

68. The government has considered whether this amendment could inadvertently disadvantage other persons requiring treatment in hospital in the context of limited bed-space. However, we consider that prisoners and members of the public are not in an analogous situation and, in the alternative, the vulnerability of persons in the criminal justice system and in State detention generally, the unsuitability of prisons and detention facilities for those who are seriously mentally unwell, coupled with the State’s obligations of care to these persons, mean that this is a proportionate measure in pursuit of a legitimate aim, thus compliant with article 14.

Clause 47: remand for a person’s own protection

69. Exceptions to the right to bail in schedule 1 to the Bail Act 1976 currently permit the court to refuse bail where satisfied that the defendant should be kept in custody for their own protection, or, if they are a child or young person, for their own welfare. Clause 47 amends these exceptions such that an adult may still be refused bail for their own protection, but not where that need arises purely by reason of their mental health. Clause 47 does not change the position for children, who may still be refused bail for their own welfare, even where this arises solely due to mental health concerns.

70. Article 5(1)(c) permits the detention for the purpose of bringing a person before the court on reasonable suspicion of having committed an offence, which can include detention for the defendant’s own protection^{[footnote 12]}. By narrowing the scope of the capacity to remand a defendant for their own protection, this amendment limits the circumstances in which a person will be deprived of their liberty, thus enhancing compliance with article 5.

71. The government has considered whether removing the court’s capacity to remand a defendant in custody in these circumstances contravenes its obligation under article 2 to take positive steps to safeguard the lives of those within its jurisdiction, in the event that a person released on bail goes on to cause themselves harm, and has concluded that it does not. Even where the defendant has a right to bail, section 3(6) of the Bail Act 1976 provides the court with the power to impose any bail condition it considers necessary for the defendant’s own protection. In addition, the court may take steps to ensure that the appropriate authorities are alerted to assess the defendant’s need for admission to a hospital for assessment or treatment under the civil regime (part 2 of the act - see sections 2 and 3). These measures provide sufficient powers to enable the court to take preventative operational measures in response to an identified risk to an individual’s life, and hence to satisfy article 2.

72. The government has considered whether the continued differential treatment between those over and under the age of 18 gives rise to unlawful discrimination under article 14 in conjunction with article 5 and has concluded that it does not. Firstly, while age may constitute ‘other status’, the position of children and adults in the criminal justice system is not sufficiently analogous due to the distinctions between the framework for decisions about youth bail and remand, and adult bail and remand, and the distinctions between youth and adult criminal justice more broadly.

Further, it is already the case that a youth defendant cannot be subjected to a custodial remand simply on the basis that mental health grounds give rise to a need to refuse bail for their own welfare. In such an eventuality, the defendant will be remanded into non-secure local authority accommodation and cannot be subjected to a custodial remand unless the strict conditions in either section 98 or 99 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are met. The safeguards in those sections that protect a youth from a custodial remand unless it is necessary are not affected by this amendment.

73. In the alternative, the difference pursues a legitimate aim in a proportionate manner. The aims are two-fold: to ensure that those with mental health problems are not inappropriately held on remand and to protect the welfare of children. The measure is proportionate in that children may only be held on remand where necessary for their own welfare. It is important that the court retains this power to enable it to promote a youth defendant’s welfare where appropriate given safeguarding concerns that may arise in respect of young people.

Clause 48: removal of interim remand patients to and from Channel Islands or Isle of Man

74. Clause 48 permits the transfer of remanded patients sent for assessment or treatment, or those subject to interim hospital orders, from the Crown Dependencies (consisting of the Isle of Man and the Channel Islands - ‘the CDs’) to England and Wales. Transferred patients will be detained under the relevant provisions of the act and thereafter returned to the CDs once the assessment or treatment is complete. The receiving court may renew the patient’s remand for prescribed periods.

75. The government considers that part 6 of the act is compliant with article 5 and these amendments will not affect that position. Transferred patients will be deprived of their liberty in accordance with article 5(1)(a), (c) or (e) in order to facilitate the order from the CD court and subsequently to return then to participate in criminal proceedings.

76. These changes only apply to transfers from the CDs to England and Wales, not to similar patients in Scotland and Northern Ireland. The government has therefore considered whether this measure breaches article 14 in conjunction with article 5 and concluded that it does not. This measure differentiates between geographic location rather than national origin. Article 14 ‘permits legislation to take account of regional differences and characteristics of an objective and reasonable nature’.^{[footnote 13]} The CDs lack secure medical services and cannot support defendants with complex needs, which is not the case in the rest of the UK.

Compliance with international law

77. The government has also considered whether the bill complies with international law, particularly the UN Convention on the Rights of Persons with Disabilities and the UN Convention on the Rights of the Child, and has concluded that the bill is compatible with both.

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1. Fernandes de Oliveira v Portugal (78103/14). ↩

2. Mursic v Croatia (7334/13). ↩

3. Winterwerp v The Netherlands (6301/73). ↩

4. Bensaid v the United Kingdom (44599/98). ↩

5. Carson v UK (42185/05). ↩

6. Molla Sali v Greece (20452/14). ↩

7. R(CS) v Secretary of State for Work and Pensions (2021 UKSC 26 at paragraph 160). ↩

8. Herczegfalvy v Austria (10533/83) and X v Denmark (1983) 32 D and R 28. ↩

9. Patients subject to additional controls by the Ministry of Justice, pursuant to section 41 or 49 of the act. ↩

10. X v UK (7215/75), 5 November 1981, series A, number 46. ↩

11. Ilnseher v Germany (10211/12 and 27505/14); N v Romania (59152/08). ↩

12. Archer v Commissioner of the Police for the Metropolis, 2021, England and Wales Court of Appeal (EWCA) Civil Division 1662. ↩

13. Magee v The United Kingdom (28135/95), paragraph 50. ↩