CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 février 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 26494/95                       by J.T.                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 26 February 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 1 February 1995 by J.T. against the United Kingdom and registered on 13 February 1995 under file No. 26494/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations of the respondent Government submitted on      7 May 1996 and the observations in reply submitted by the      applicant on 23 July 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1964. She is resident in the United Kingdom. She is represented before the Commission by Ms. Lucy Scott-Moncrieff, a solicitor practising in East Sussex. The facts as submitted by the applicant may be summarised as follows.   A.    Particular circumstances of the case        In 1984 the applicant, who had a history of mental disorders, was committed as an involuntary patient (for a potential period of six months) to a psychiatric institution pursuant to section 3 of the Mental Health Act 1983 ("the 1983 Act"). In November 1984 she was transferred to a regional secure unit and in 1987 was approved for a special hospital place in a psychiatric institution in Berkshire. The applicant was released in January 1996.        Until her release the applicant's detention under section 3 of the 1983 Act was renewed continuously - initially for a further six- month period and thereafter for twelve-month periods. Her detention was reviewed by Mental Health Review Tribunals, inter alia, on 29 June 1988, 7 December 1989, 1 March 1993, 13 September 1993 and 30 January 1996. The applicant was discharged after the latter review and, pursuant to her request, no advance warning as to her discharge was given to her nearest relative, her mother.        Various psychiatric and social work reports compiled during the applicant's detention refer, inter alia, to her difficult relationship with her mother, to allegations of sexual abuse by her step-father made and currently maintained by the applicant (though no proceedings have issued against him) and to the expression by the applicant of her wish to remove her mother as her nearest relative (though no application under section 29 of the 1983 Act was made in this latter respect). The reports reflect the ongoing impact on the applicant of her difficult relationship with her mother and step-father. Various references are made in the social work reports to consultations which took place between the social workers and the applicant's mother and brother in order to obtain their opinions on various matters concerning the applicant's treatment and current situation.   B.    Relevant domestic law and practice   1.    General        The detention of persons suffering from mental disorders is governed by the Mental Health Act 1983 as amended ("the 1983 Act") and the rules made pursuant to the 1983 Act by statutory instrument. Pursuant to section 3 of the 1983 Act a person may be involuntarily committed to a psychiatric institution for treatment on the written recommendation of two medical practitioners. A person so committed has the right to apply to a Mental Health Review Tribunal ("MHRT") within six months of committal and thereafter once during each period of renewal of the authority for detention under section 3 of the 1983 Act, which renewals may be for a second period of six months and thereafter for twelve months.   2.    The nearest relative   (a) The identity of the nearest relative : The patient's "nearest relative" is designated by section 26 of the 1983 Act and is the first relative in a list of relatives in that section (in descending priority) who satisfy the relevant criteria. The nearest relative may subsequently authorise another person to carry out the functions of nearest relative (Regulation 14 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983).        Section 29 of the 1983 Act, insofar as is relevant, provides as follows:        "(1) The county court may, upon application ... direct that the      functions of the nearest relative of the patient ... shall ...      be exercisable by the applicant, or by any other person specified      in the application, being a person who, in the opinion of the      court, is a proper person to act as the patient's nearest      relative and is willing to do so.        (2) An order under this section may be made on the application      of -              (a) any relative of the patient;            (b) any other person with whom the patient ... was last            residing;            (c) an approved social worker.        (3) An application for an order under this section may be made      upon any of the following grounds, that is to say -              (a) that the patient has no nearest relative within the            meaning of this Act, or that it is not reasonably            practicable to ascertain whether he has such a relative, or            who that relative is;            (b) that the nearest relative of the patient is incapable            of acting as such by reason of mental disorder or other            illness;            (c) that the nearest relative of the patient unreasonably            objects to the making of an application for admission for            treatment ...; or            (d) that the nearest relative of the patient has exercised            without due regard to the welfare of the patient or the            interests of the public his power to discharge the patient            from hospital ..., or is likely to do so."   (b) Admissions : An application for admission for assessment (sections 2 and 145 of the 1983 Act), an emergency application for admission for assessment (section 4 of the 1983 Act) and an application for admission for treatment (sections 3 and 145 of the 1983 Act) can be made by, inter alia, a nearest relative. In addition, no application for admission for treatment under section 3 of the 1983 Act shall be made by an approved social worker without consultation with the nearest relative unless the social worker considers that, in the circumstances, such consultation is not reasonably practicable or would involve unreasonable delay (section 11(4) of the 1983 Act). (c) Discharge : Pursuant to section 23 of the 1983 Act an order for the discharge of a patient, detained under section 3 of the 1983 Act, may be made by the nearest relative. Prior to exercising the power to order the discharge of a patient, the nearest relative can appoint a medical practitioner to examine the patient and that practitioner can require the production of records relating to the detention or treatment of the patient in any hospital   with a view to their inspection (section 24). However, such an order of the nearest relative will have no effect if the responsible medical officer furnishes a report to the hospital managers certifying that the patient would, if released, be likely to be a danger to him/herself or others (section 25).        The detaining authority has a duty to notify the nearest relative that the patient is to be discharged. However, this duty can be overridden if the patient requests that no such information is supplied (section 133(2) of the 1983 Act). Similarly if a patient is to be discharged under supervision in accordance with sections 25A-25H of the 1983 Act (inserted by the Mental Health (Patients in the Community) Act 1995), all provisions requiring consultation with or notification to the nearest relative of procedural and substantive steps relating to the patient's supervised discharge are subject to the patient's veto other than in cases where the patient has a propensity to violent behaviour towards others or in cases where the responsible medical officer considers that, in any event, it is appropriate for the consultation and informing process to take place.   (d) Reviews before a MHRT : If unsuccessful under section 23 of the 1983 Act, the nearest relative can then, under section 66 of that Act, make an application to the MHRT for the discharge of the patient and in such a case will be considered "the applicant" for the purposes of the proceedings before that MHRT. Accordingly, the nearest relative would then have to be informed of the arrangements for the hearing, would attend the hearing and receive a copy of every document received by the MHRT which is relevant to the application (unless the MHRT decides that disclosure would be adverse to the welfare of patient).        In cases where the patient or the detaining authority applies to the MHRT, the MHRT must notify the nearest relative of the application and of the arrangements for the determination of the application. The nearest relative will also receive a copy of the decision (which must contain the MHRT's reasons for its decision).   COMPLAINTS        The applicant complains that her mother is her "nearest relative" within the meaning of the 1983 Act. In view of the applicant's difficult relationship with her mother and step-father, she wished to nominate someone else as her nearest relative so that personal information, mainly in relation to the reviews of her detention before the MHRT, was not released to her mother nor, consequently, to her step-father. She complains that she could not apply to change the identity of her nearest relative since the patient cannot make this application and since, in any event, concern by a patient about the relationship with the nearest relative does not constitute a ground for an application by someone on her behalf. She submits that this situation constituted an interference with her private life in violation of Article 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 1 February 1995 and was registered on 13 February 1995.        On 18 October 1995 the Commission decided to communicate the application.        The observations of the respondent Government were received by letter dated 10 May 1996 and those of the applicant in response were received on 31 July 1996;   THE LAW        The applicant complains that her mother is automatically her "nearest relative" within the meaning of the 1983 Act. Accordingly, her mother had access to information about the applicant's treatment and progress while the applicant was detained. She wanted to nominate someone else as her nearest relative, in light of her difficult relationship with her mother and her fear of her step-father, so that personal information (mainly in relation to the reviews of her detention before MHRTs) was not released to her mother nor, consequently, to her step-father (against whom the applicant has made and maintains allegations of sexual abuse). She complains that she, or someone on her behalf, could not have applied to change the identity of her nearest relative and that this amounts to an interference with her private life in violation of Article 8 (Art. 8) of the Convention.        The Government accept that the giving of information to one party about another against the latter's wishes may breach the latter's right to respect for his private life. However the Government submit that the aim is legitimate - the concept of the nearest relative has been developed to ensure that someone presumed to act in the patient's best interests and who will also have a relevant contribution to make to professional and clinical decisions made concerning the patient can participate at various stages of admission, detention and discharge of the patient.        Furthermore, the Government consider that the system operates in a proportionate manner. In the first place, the nearest relative is only involved and provided with information which will facilitate professional assessment, treatment and decision making in respect of the patient and the Government refer to the fact that the applicant's mother and brother were often consulted for their views on the patient. However, the nearest relative is not shown medical reports. Secondly, in two important areas the patient can veto information which goes to the nearest relative; information given to the nearest relative on discharge (section 133(2) of the 1983 Act) and notification on discharge under supervision (section 25B(2)(b) of the 1983 Act). Thirdly, section 29 of the 1983 Act allows the appointment of a different relative by the County Court and the applicant has not attempted, to the Government's knowledge, to persuade someone to make this application on her behalf.      The Government accept that there remain a number of areas where the patient cannot unilaterally prevent information being given to the nearest relative. The Government mention, in particular, the case where the application to the MHRT is made other than by the nearest relative and to the information (as to the date and arrangements for the hearing) given to the nearest relative and to the fact that the decision of the MHRT is also sent to that relative. The Government indicate that they also accept that in certain cases it may be appropriate to exclude the nearest relative from these provisions and they propose to consult relevant organisations and persons with a view to identifying cases where such an exclusion may be appropriate and to making the appropriate amendment to the relevant rules.        However, the Government, nevertheless, consider that the present situation is justifiable under Article 8 para. 2 (Art. 8-2) of the Convention for the protection of health and for the protection of the rights and freedoms of others (to the benefit of both the patient and the patient's family members). The Government submit that the mentally disordered person sometimes acts irrationally and with little regard for others. Accordingly, it is important for the health and safety of the patient that the experience of the family is obtained and it is important for the family that they are kept informed of decisions which are taken by others about a family member.        Accordingly, the Government submit that the application is manifestly ill-founded or, alternatively, that it does not disclose a violation of Article 8 (Art. 8) of the Convention.        The applicant submitted observations both in relation to her last period of detention which ended in January 1996 and in relation to the alleged current danger of a future committal to and detention in a psychiatric institution in view of her mental illness. She submits that the Government have failed to recognise that the existing law allows the appointment of a wholly inappropriate person as a nearest relative. In this context, she argues that her mother has consistently taken the part of her step-father. It is, according to the applicant, proven beyond all reasonable doubt that her step-father sexually abused her and that this was responsible, to a significant extent, for her psychiatric difficulties.        The legal safeguards to which the Government refer are insufficient in the applicant's view. A patient cannot apply under section 29 of the 1983 Act herself and cannot compel another person to make the application on her behalf. She requested her mother to agree to her functions being discharged by a third person and her mother did not agree. In any event, the grounds upon which the relevant application to the County Court can be made do not cover the applicant's concerns about her relationship with her nearest relative. In addition, there are no safeguards against the nearest relative failing to exercise that person's statutory discharge functions in the patient's favour, exercising unreasonably the powers as regards the committal of a patient to a psychiatric institution or participating in an application to a MHRT (either as the applicant to the MHRT or, in other cases, as a party who will receive information concerning the review).      The applicant considers that the justification offered by the Government, relating to the experience and knowledge of the nearest relative, is eroded when it is precisely the nearest relative's relationship with the patient that, at the very least, substantially contributes to the patient's difficulties.        The applicant also refers to some other methods by which the nearest relative can obtain access to information not mentioned by the Government. She refers to the consultation procedure, required by section 11(4) of the 1983 Act, prior to committal under section 3 of the 1983 Act and points to the large access to information that the nearest relative has when that person makes an application to the MHRT on the applicant's behalf. This information would include, contrary to the Government's submissions, medical reports.        The applicant considers that the automatic appointment of the nearest relative, the lack of means available to her to change the identity of that relative combined with the powers and access to personal information of the nearest relative amount, in the light of her reasonable fears surrounding her relationship with her nearest relative, to an interference in her private life which is not justifiable under the second paragraph of Article 8 (Art. 8) of the Convention.      Insofar as the applicant's complaint relates to her period of detention which ended in January 1996, the Commission considers, in light of the parties' submissions, that this part of the application raises complex and serious issues under Article 8 (Art. 8) of the Convention which require determination on the merits. It follows that this complaint of the applicant cannot be dismissed as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.        Insofar as the applicant's complaint relates to any future committal to or detention in a psychiatric institution, the Commission notes that the applicant is at the moment at liberty and that it is only when her mental condition is of such a nature as requiring her committal for reasons permitted by the mental health legislation that the question of her committal and detention would arise. Accordingly, the Commission does not consider that the applicant can, as matters stand, claim to be a victim of a violation of the Convention within the meaning of Article 25 (Art. 25) of the Convention in this respect (No. 21681/93, Dec. 16.1.95, unpublished).        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without pre-judging the merits, the      applicant's complaints in relation to her nearest relative in      respect of her detention which ended in January 1996; and        DECLARES INADMISSIBLE the remainder of the application.            M.F. BUQUICCHIO                             J. LIDDY           Secretary                                President      to the First Chamber                     of the First Chamber