Monitoring those deprived of their liberty in psychiatric and social care institutions and national practice in the UK

Abstract

The UK government ratified the United Nations Optional Protocol to the Convention Against Torture (OPCAT) in 2003. The OPCAT expressly requires that each state signatory should designate a National Preventive Mechanism (NPM). NPMs are national bodies that have the mandate to conduct regular visits to places of detention as well as make recommendations to the state to improve the situation of the persons deprived of their liberty. This article examines the international and national mechanisms for monitoring those deprived of their liberty in social care and psychiatric institutions, with particular reference to the current practice of the Care Quality Commission (CQC) monitoring body in England. The article examines the role of the UN Subcommittee on the Prevention of Torture (SPT) in monitoring at an international level and analyses the key elements for an effective national monitoring body (NPM) in this context, drawing on OPCAT, the recommendations of the SPT and the experience of the CQC and its predecessor, the Mental Health Act Commission. The article maintains that there is a need to safeguard procedural standards, such as a regular system of unannounced visits, operational and financial independence from the state, and a blend of appropriate expertise of visiting teams, including service user involvement. The article concludes that there is potential for the UN SPT and the Convention on the Rights of Persons with Disabilities (CRPD) Committee to develop guidance for monitoring bodies on implementing substantive standards, to ensure that the rights of patients detained in such settings are adequately protected and promoted.

Keywords:

• Deprivation of liberty
• psychiatric and social care institutions
• independent monitoring
• international and national mechanisms
• procedural and substantive standards

Acknowlegements

The authors are grateful to Mr Oliver Lewis and Ms Dorottya Karsay from the Mental Disability Advocacy Centre (MDAC) for their useful comments on the earlier drafts of this paper. Any inaccuracies are the responsibility of authors.

Notes

See T. Hammarberg ‘Human Rights Comment: Inhuman Treatment of Persons with Disabilities in Institutions’, 21 October 2010, http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=93.

Penal Reform International, Making Standards Work: An International Handbook on Good Prison Practice (London: Penal Reform International, 2001), 6.

See Committee Against Torture, General Comment No. 2, (adopted 2007) UN Doc HRI.GEN/1/Rev.9 (Vol II) p 376; Sir N. Rodley, ‘Reflections on Working for the Prevention of Torture’, Essex Human Rights Review 6, no. 1 (2010): 21.

GA Res. 57/199 on the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, A/RES/57/199, adopted on 18 December 2003 by 127 votes to 4, with 42 abstentions; came into force 26 June 2006.

CPT/Inf/C (2002) 1 [EN] (Part 1) – Strasbourg, 26.XI.1987.

Established in accordance with Article 2 of OPCAT.

See, for instance, the SPT's 2010 report on Mexico, following its visit in September 2008, at http://www2.ohchr.org/english/bodies/cat/opcat/spt_visits.htm.

‘The Approach of the Subcommittee to the Concept of Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment under the Optional Protocol’, Doc CAT/OP/12/6.

Mental Disability Advocacy Centre (MDAC), Inspect! Inspectorates of Mental Health and Social Care Institutions in the European Union (Budapest: MDAC, 2006). See also OHCHR, Monitoring the Convention on the Rights of Persons with Disabilities: Guidance for Human Rights Monitors, Professional training series No. 17 (New York: OHCHR, 2010), 7.

Care Quality Commission Briefing, The Mental Health Act Commission's Biennial Report 2007–2009: Key Lessons and the Care Quality Commission's Response, 20 July 2009, 2.

The ITHACA Toolkit for Monitoring Human Rights and General Health Care in Mental Health and Social Care Institutions (London: ITHACA Project Group, 2010), 22.

The Mental Welfare Commission for Scotland monitors the operation of the Mental Health (Care & Treatment) (Scotland) Act 2003 and the welfare parts of the Adults with Incapacity Act 2000. It has a wide remit to investigate the operation of the legislation and conditions in psychiatric settings, in particular to investigate whether a patient is being ill-treated or neglected.

See, for example, J. McHale ‘Standards, quality and accountability – the NHS and mental health: a case for joined up-thinking?’, Journal of Social Welfare and Family Law 25, no. 4 (2003): 369–382; M. Clayton, ‘The Separation of the Mental Health Act Commission's Functions: Inspectors, Visitors and Advocacy’, Journal of Mental Health Law July (2002): 97–104; Royal College of Psychiatrists, Health and Social Care Bill 2007: Second Reading Briefing – House of Commons, http://www.rcp.org.uk.

Several concepts appear in this article that are fundamental to the National Preventive Mechanism (NPM), such as preventive visits and undertaking visits on a regular basis which forms part of an overall system of visits.

In Wales the Healthcare Inspectorate has taken over this monitoring role and produced its first report in March 2011 (Healthcare Inspectorate for Wales, Monitoring the Use of the Mental Health Act 1983 in 2009/2010, 2011). Worryingly for patients in Wales the report highlighted the lack of access to psychological therapies and the need for improvements in the overall provision of care and treatment.

Established in accordance with Article 1 of the ECPT.

See Explanatory Report to the ECPT, CPT/Inf/C(89)1, Strasbourg, para 30.

See, further, R. Murray, E. Steinerte, M. Evans and A. Hallo de Wolf, The Optional Protocol to the UN Convention against Torture (Oxford: Oxford University Press, 2011), chapter 4.

See M. Pollard, ‘Implementation of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) in Federal and other Decentralized States’ (discussion paper for the seminar ‘The Optional Protocol to the UN Convention against Torture: Implementation in Federal States and Decentralized States’, São Paulo, Brazil, 22–24 June 2005).

See ‘Report on the Visit of the Subcommittee on Prevention of Torture to the Maldives’, UN Doc CAT/OP/MDV/1 of 26 February 2009, Annex I.

See ‘Report on the Visit of the Subcommittee on Prevention of Torture to Mexico’, UN Doc CAT/OP/MEX/1 of 31 May 2010, Annex I; ‘Report on the Visit of the Subcommittee on Prevention of Torture to Paraguay’, UN Doc CAT/OP/PRY/1, Annex II.

Article 31 (3) (b) of the Vienna Convention on the Law of Treaties provides that any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation must be taken into account when interpreting the treaty in question. See also ‘“Deprivation of liberty” as per Article 4 of OPCAT: the scope’ (policy paper, Human Rights Implementation Centre, University of Bristol, October 2011, http://www.bristol.ac.uk/law/research/centres-themes/hric/).

‘2009 Overview of the Chancellor of Justice: Activities for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Statistics of Proceedings’, Tallinn, 2009, 38–47.

National Preventive Mechanism of Georgia: Annual Report, 2009 (Tbilisi, 2010), 97–104.

According to the Slovenian legislation, ‘These are departments in the social security institutions where persons are given, due to their needs, special protection and safety and cannot leave the institution out of their own free will’. ‘National Preventive Mechanism under the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, Republic of Slovenia, Human Rights Ombudsman, Report 2009, 67.

Republic of Slovenia, ‘National Preventive Mechanism under the Optional Protocol’.

See Explanatory Report to the ECPT, para 32.

APT, Establishment and Designation of National Preventive Mechanisms (Geneva: APT, 2006), 21.

Ibid.

CQC Press Release, 18 July 2011, www.cqc.org.uk.

First Annual report of the SPT, UN Doc CAT/C/40/2 of 14 May 2008, para 15.

Ibid.

As provided for by Article 5(1) of OPCAT.

For the list of visits, see http://www2.ohchr.org/english/bodies/cat/opcat/spt_visits.htm.

‘Report on the follow-up visit to the Republic of Paraguay from 13 to 15 September 2010’, UN Doc CAT/OP/PRY/2.

Ibid, paras 40, 52.

Ibid, Annex II.

The UK ratified OPCAT on 10 December 2003. According to Article 28, the instrument came into force in the UK on 22 June 2006. On 30 March 2009, in a Written Ministerial Statement, 18 institutions were designated to fulfil the mandate of the NPM for the UK. For further details, see http://www.justice.gov.uk/about/hmi-prisons/preventive-mechanism.htm.

See UK NPM Database collated by the Human Rights Implementation Centre, http://www.bristol.ac.uk/law/research/centres-themes/hric/hricnpmukdatabase/index.html.

Ibid.

Ibid, 263–264.

The SPT has only stated that ‘The NPM should plan its work and its use of resources in such a way as to ensure that places of deprivation of liberty are visited in a manner and with sufficient frequency to make an effective contribution to the prevention torture and other cruel, inhuman or degrading treatment or punishment’. Thus the criterion for frequency is that visits must be carried out with the frequency that would make an effective contribution towards preventing ill-treatment. ‘Guidelines on National Preventive Mechanisms’, UN Doc CAT/OP/12/5, at para 34.

APT, Establishment and Designation of National Preventive Mechanisms (Geneva: APT, 2006), 36.

OPCAT, Article 13(2).

According to Article 14(2) of OPCAT: ‘Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit. The existence of a declared state of emergency as such shall not be invoked by a State Party as a reason to object to a visit.’

APT, Establishment and Designation, 55–56.

‘Guidelines on National Preventive Mechanisms’, para 25.

For example, during one of its most recent visits in May 2011 to Ukraine, the SPT visited 15 police stations, three pre-trial detention facilities and six prisons. Six of the 13 SPT visit reports have been made public. Examination of these six public reports reveals that, during these visits, SPT visited 89 actual places of deprivation of liberty but among these were included only three psychiatric hospitals: two in Mexico (CAT/OP/MEX/1, Annex I) and one in Paraguay (CAT/OP/PRY/1, Annex II). During these six visits SPT did not visit a single social care home for persons with disabilities. See also CAT reports, reports of domestic monitoring bodies, as well as the 2008 report of the Special Rapporteur on Torture and the 2005 report of the Special Rapporteur on Health, which reveal serious human rights violations against persons with disabilities in psychiatric and social care institutions worldwide.

‘Guidelines on National Preventive Mechanisms’, para 17.

Ibid, para 21.

‘Explanatory Report to the ECPT’, para 31.

For further details, see http://www.ithaca-study.eu/.

The ITHACA Toolkit.

Ibid, 26.

Ibid.

B. Hale, Mental Health Law (London: Sweet & Maxwell, 2010), 223.

Ibid, 223–224.

Murray et al., The Optional Protocol, chapter 4.

Ibid.

APT, Establishment and Designation, 52.

McHale, ‘Standards, quality and accountability, 381.

Evidence of Nottinghamshire Healthcare NHS Trust presented to the House of Commons and House of Lords Joint Committee on the Draft Mental Health Bill, Ev. 1023, para 3.3.

Lord Patel, in MHAC, Risk, Rights, Recovery: Twelfth Biennial Report 2005–2007 (London: Stationery Office, 2008), 256.

MDAC recognises the UK's ‘widespread involvement of users and user groups in its inspectorate mechanisms’. MDAC, Inspect!, 12. See also OHCHR, Monitoring the Convention, 34.

OHCHR, Monitoring the Convention, 33.

MDAC, Recommendations by the Mental Disability Advocacy Center to the European Committee for the Prevention of Torture, on Aligning its Standards to the UN Convention on the Rights of Persons with Disabilities (March 2010), 14.

Ibid, 15.

MHAC, Risk, Rights, Recovery, 264.

For further details, see ‘Written submission by the Mental Disability Advocacy Centre to the UN Committee on the Rights of Persons with Disabilities With respect to Article 33 of the UN Convention on the Rights of Persons with Disabilities’, Fifth Session, 11–15 April 2011, http://mdac.info/node/704.

‘Principles Relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights’ (The Paris Principles), Resolution 1992/54, endorsed by the UN General Assembly Resolution 48/134, 20 December 1993.

Ibid.

‘Guidelines on National Preventive Mechanisms’, para 16.

Ibid, para 18.

The ITHACA Toolkit, 25.

‘The relevant legislation should specify the period of office of the member/s of the NPM and any grounds for their dismissal. Periods of office, which may be renewable, should be sufficient to foster the independent functioning of the NPM.’ ‘Guidelines on National Preventive Mechanisms’, para 9.

Ibid, para. 8.

Ibid, para 12.

Paris Principles.

The ITHACA Toolkit, 25.

MDAC, Inspect!, 8.

Ibid, 12.

Ibid.

MHAC, Risk, Rights, Recovery, para 8.9.

‘Guidelines on National Preventive Mechanisms’, para 19.

Ibid, para 21.

The UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care make reference to the need for mechanisms for monitoring but do not specifically refer to the requirement of independence. GA Res 46/119 of 17 December 1991.

‘Guidelines on National Preventive Mechanisms’, para 13.

MHAC, Risk, Rights, Recovery, para 2.1.

Ibid, paras 2.125–2.135.

T. Prosser, The Regulatory Enterprise, Government, Regulation and Legitimacy (Oxford: Oxford University Press, 2010), 121.

CQC, ‘CQC lifts condition on West London Mental Health NHS Trust’, press release, http://www.cqc.org.uk//newsandevents/pressreleases.

E. Steinerte and R. Murray, ‘Same but Different? National Human Rights Commissions and Ombudsman Offices and National Preventive Mechanisms under the Optional Protocol to the UN Convention against Torture’, Essex Human Rights Review 6, no. 1 (2010): 95. For example, the standards may be found in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33 of 29 November 1985; ECOSOC Res 633 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.

‘Guidelines on National Preventive Mechanisms’, para 36.

A. Owers, ‘Facilitating the coherence of standards’ (presentation during Thematic Panel 2, ‘New Partnerships for Torture Prevention in Europe’ conference, Strasbourg, 6 November 2009). The presentation is published in Proceedings of the Conference (Strasbourg: Council of Europe/APT Publishing, 2010).

GA Res 46/119 of 17 December 1991.

‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt', UN Doc E/CN.4/2005/51 of 11 February 2005, para 24.

Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/63/175 of 28 July 2008, para 44.

Established in accordance with Article 34 of CPRD.

The Committee has so far held two Days of General Discussion: ‘The Right to Accessibility’, 7 October 2010 and ‘Article 12 of the CRPD – The Right to Equal Recognition before the Law’, 21 October 2009. See http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGD.aspx. The Committee has also started considering State reports. Tunisia was the first country in respect of which the Committee adopted Concluding Observations. UN Doc CRPD/C/TUN/CO/1 of 13 May 2011.

The Committee held its first session between 23 and 27 February 2009. Provisional Agenda and Annotation, UN Doc CRPD/C/1/1 of 19 January 2009, para 1.

As noted above at note 99, Tunisia was the first country in respect of which the Committee adopted Concluding Observations.

CPT Standards, CPT/Inf/E (2002), Rev. 2010.

Ibid, Section III, 37–52.

R. Kicker, ‘The European Committee for the Prevention of Torture: A Success Story?’, in The Council of Europe: Pioneer and Guarantor for Human Rights and Democracy, ed. R. Kicker (Strasbourg: Council of Europe Publishing, 2010), 68.

See MDAC, Recommendations by the Mental Disability Advocacy Centre to the European Committee for the Prevention of Torture, on Aligning its Standards to the UN Convention on the Rights of Persons with Disabilities (Budapest: MDAC, March 2010).

CQC, Monitoring the Use of the Mental Health Act 2009/10: An Overview of the CQC's Findings from our First Annual Report on our Monitoring of How the Act is Used (London: CQC, 2010), 23–24.

Approved by ECOSOC in its resolution 633 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977.