EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 26494/95

J.T .

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-35)              3

A. The particular circumstances of the case

(paras. 16-19)              3

B. Relevant domestic law and practice

(paras. 20- 35)              3

III. OPINION OF THE COMMISSION

(paras. 36-61)              8

A. Complaint declared admissible

(para. 36) 8

B. Point at issue

(para. 37) 8

C. As regards Article 8 of the Convention

(paras. 38-60)              8

CONCLUSION

(para. 61) 12

APPENDIX: DECISION AS TO THE ADMISSIBILITY

OF THE APPLICATION 13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a British citizen, born in 1964 and resident in the United Kingdom. She is represented before the Commission by Ms Lucy Scott- Moncrieff , a solicitor practising in East Sussex .

3. The application is directed against the United Kingdom. The respondent Government were represented by Mr Martin Eaton, Agent Foreign and Commonwealth Office.

4. The case concerns the applicant's inability to change her "nearest relative" who had been designated by section 26 of the Mental Health Act 1983 and who acted as such for the duration of the applicant's involuntary detention in a psychiatric institution until January 1996.

B. The proceedings

5. The application was introduced on 1 February 1995 and registered on 13 February 1995.

6. On 18 October 1995 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaint under Article 8 of the Convention.

7. The Government's observations were submitted on 7 May 1996 after an extension of the time-limit fixed for this purpose. The applicant's observations were received on 23 July 1996. On 21 May 1996 the Commission granted the applicant legal aid for the representation of her case.

8. On 26 February 1997 the Commission declared admissible the applicant's complaint under Article 8 relating to her detention which ended in January 1996 and her inability to change her nearest relative. It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 12 March 1997 and they were invited to submit such further information or observations on the merits as they wished. The parties did not avail themselves of this opportunity.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission in First Chamber pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM E. BUSUTTIL, Acting President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. 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.

17. Initially, the applicant's detention was renewed for a further six-month period and, thereafter, for twelve-month periods. Her detention was reviewed by the Mental Health Review Tribunal ("MHRT") on, inter alia , 29 June 1988, 7 December 1989, 1 March 1993, 13 September 1993, 29 September 1994 and on 30 January 1996. She was discharged in January 1996 after the last review and, following her request pursuant to section 133(2) of the 1983 Act, no notice of her discharge was given to her nearest relative, her mother.

18. Various psychiatric and social work reports compiled during the applicant's detention and submitted to the Commission detail, inter alia , the applicant's difficult relationship with her mother and refer to her repeated allegations that she had been sexually abused by her step-father (no proceedings were issued against her step-father in this respect). The reports reflect the impact on the applicant of her relationship with her mother and of her fear and "hatred" of her step-father. It is noted in a social work report dated August 1993 that the applicant was aware that her mother and step-father lived in the same house despite their divorce in 1977 and that, accordingly, she did not want her mother to know of her whereabouts. That report also refers to the applicant's wish to remove her mother as her nearest relative and to replace her with a particular social worker. However, her mother did not agree and it was noted that the matter remained "unresolved".

19. A social worker in his report dated April 1992 specifically noted that he had the opportunity to visit the applicant's mother and brother in relation to the applicant's situation and "to discuss the Tribunal, in particular, over the telephone in recent weeks". The social worker noted that he had discussed with them the applicant's and her mother's relationship and contact between them. Both the applicant's mother and brother commented on the applicant's future placement including in hostel accommodation. On the basis of a suggestion of the applicant's mother, the social worker recommended that contact arrangements between the applicant and her family should be clearly worked out.

B. Relevant domestic law and practice

20. The detention of persons suffering from mental disorders is governed by the Mental Health Act 1983 as amended ("the 1983 Act); by the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 as amended ("the 1983 Regulations"); and by the Mental Health Review Tribunal Rules 1983 as amended ("the MHRT Rules").

21. 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.

(a) The identity of the nearest relative

22. 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 authorise another person to carry out the functions of nearest relative (Regulation 14 of the 1983 Regulations).

23. 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

24. 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, among others, a nearest relative. 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 such consultation is not reasonably practicable or would involve unreasonable delay (section 11(4) of the 1983 Act).

25. Moreover, the manager of a psychiatric institution in which a patient is detained must, as soon as practicable after the commencement of the patient's detention, take such steps as are practicable to ensure that the patient understands, inter alia , under which of the statutory provisions he is being detained and its effect; his right to apply to the MHRT; his right to be discharged; his right to receive and to send correspondence; and his right to consent to or refuse treatment. The manager must also, unless the patient otherwise requests, take such steps as are practicable to inform in the same terms in writing the patient's nearest relative (section 132(4) of the 1983 Act).

(c) Discharge

26. 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 this power, 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 of the 1983 Act). However, that 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 of the 1983 Act).

27. Where a person is to be discharged, other than by order of the nearest relative (as outlined above), the detaining authority is obliged to notify the nearest relative of the forthcoming discharge. 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 except 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 that consultation and informing process to take place.

(d) Reviews by a MHRT

28. The extent of disclosure of information during MHRT proceedings to the nearest relative depends on whether that person is the "applicant" or simply a "party" to those proceedings.

29. If unsuccessful under section 23 of the 1983 Act, the nearest relative can, under section 66 of that Act, make an application to the MHRT for the discharge of the patient. The nearest relative is, therefore, the "applicant" in and, consequently, a "party" to the proceedings before the MHRT.

30. In addition, even if the application for review by the MHRT is made by another (the patient or the responsible authority), the nearest relative must, in any event, receive "notice of the proceedings" pursuant to Rule 7 of the MHRT Rules. By virtue of that notice, the nearest relative becomes a "party" to the MHRT proceedings "unless the context otherwise requires" (Rule 2(1) of the MHRT Rules).

31. A party to the MHRT proceedings is entitled to notice:

- of the transfer of proceedings to another MHRT (Rule 17(2));

- that an application has been withdrawn or deemed to be withdrawn (Rule 19(3));

- of 14 days of the date, time and place fixed for the hearing of the application (Rule 20) or of an adjourned application (Rule 16(4)); and

- of the reconvening of a hearing because a recommendation has not been complied with (Rule 25(2)).

32. In addition, a party may be represented in the proceedings, may appear at the hearing and take part in the proceedings as the MHRT thinks proper (Rule 22(4)) subject to the MHRT being able to exclude any person (giving reasons for same) from a hearing or part of the hearing (Rule 21(4)). Unless the MHRT directs otherwise, those who attend the hearing can be accompanied in addition to being represented (Rule 10(6)).

33. A party will also receive the written decision of the MHRT (Rule 24) which decision must contain the MHRT's reasons (Rule 23). The MHRT may alter the extent of the disclosure of its decision but only as regards the patient (Rule 24).

34. Furthermore, as the applicant to the MHRT, the nearest relative may appoint a registered medical practitioner who can visit and examine the patient and who may require production of and inspect any records relating to the detention and treatment of the patient (section 76(1) of the 1983 Act). An applicant may attend the MHRT hearing, be heard by the MHRT, call witnesses and cross-examine other witnesses (Rule 22(4) of the MHRT Rules). While the applicant may be excluded from a MHRT hearing under Rule 21(4), an applicant's legal or medical representatives cannot be so excluded.

35. An applicant also receives a copy of every document received by the MHRT (Rule 12(1)). This documentation includes the Statement of the responsible authority which must contain up-to-date medical reports and the opinion of the responsible authority as to discharge together with a social circumstances report if possible (Rule 6(5)). However, the MHRT can decide that such disclosure would be adverse to the health or welfare of patient (Rule 12(2)).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

36. The Commission has declared admissible the applicant's complaint relating to her inability to change her nearest relative during her detention which ended in January 1996.

B. Point at issue

37. The issue to be determined in the present case is whether there has been a violation of Article 8 of the Convention as regards the applicant's right to respect for her private life.

C. As regards Article 8 of the Convention

38. Article 8 provides, insofar as is relevant, as follows:

"1. Everyone has the right to respect for his private ... life ...

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 protection of health or morals, or for the protection of the rights and freedoms of others."

39. The applicant 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.

40. Moreover, in the applicant's view the legal safeguards to which the Government refer are insufficient. 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 or unreasonably exercising 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).

41. 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, has substantially contributed to the patient's difficulties.

42. The applicant also refers to other methods by which the nearest relative can obtain access to information which are 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 extensive access to information that the nearest relative has when making an application to the MHRT on the applicant's behalf. This information would include, contrary to the Government's submissions, medical reports.

43. The Government submit that although the giving of information to one party about another against the latter's wishes may amount to an interference with the latter's right to respect for private life, it has a legitimate aim, namely, the protection of health and the protection of the rights and freedoms of others (to the benefit of both the patient and the patient's family members). The Government further submit that the system operates in a proportionate manner.

44. In the first place, the Government argue that 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.

45. The Government further submit that in two important areas the patient can veto the provision of information to the nearest relative, namely information as to the patient's discharge (section 133(2) of the 1983 Act) and notification of the patient's discharge under supervision (section 25B(2)(b) of the 1983 Act). In addition, section 29 of the 1983 Act allows for 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.

46. The Government accept, however, that there remain a number of areas where the patient cannot unilaterally prevent information being given to the nearest relative. The Government refer, in particular, to the case where the application to the MHRT is made other than by the nearest relative: in such a case information (as to the date and arrangements for the hearing) is given to the nearest relative and the decision of the MHRT is also sent to that relative. The Government also accept that in certain cases it may be appropriate to exclude the nearest relative from these provisions and state that they propose to consult relevant organisations and persons with a view to identifying cases where such exclusion may be appropriate and to making the appropriate amendment to the relevant rules.

47. The Commission considers, and it is not disputed, that information concerning the applicant's mental condition relates to her private life (Eur. Court HR, Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 15, para. 37) and that the disclosure of such information to her nearest relative would constitute an interference with her right to respect for her private life.

48. As to the information which was disclosed in the present case, the Commission notes that it is not clear whether the applicant's mother was consulted (pursuant to section 11(4) of the 1983 Act) in relation to the applicant's detention in 1984 (under section 3 of the 1983 Act).

49. However, the Commission observes that the applicant's mother would have received, as nearest relative, the Rule 7 notice of all forthcoming MHRT reviews concerning the applicant and would thereby have become a party to all the review proceedings before the MHRT concerning the applicant. As such, the applicant's mother would have received, inter alia , notice of any transfer or withdrawal of an application for review together with notice of the date, time and place of the review hearings. Although she would have had a general right to appear at review hearings, it appears from the MHRT decisions submitted that the applicant's mother did not so participate. However, she would have received a copy of all written decisions of the MHRT concerning the applicant which decisions included the MHRT's reasons and which decisions mentioned, at least once, the applicant's relationship with her mother. Further, a social work report records a discussion about the applicant's situation and a forthcoming MHRT review with the applicant's mother and brother and the Government refer to a number of such discussions having taken place. The Commission considers it reasonable to suppose that, in order to render those consultations useful, at least basic information about the applicant's condition and treatment was disclosed to her mother.

50. Such an interference constitutes a violation of Article 8 unless it is justified under Article 8 para. 2 of the Convention namely, unless it is "in accordance with the law", directed at one or more of the legitimate aims set out in Article 8 para. 2 and is necessary in a democratic society for achieving those aims.

51. The Commission recalls that the applicant's nearest relative was designated in accordance with section 26 of the 1983 Act which sets out in descending priority the persons who may be so appointed. The powers and rights of the nearest relative, including those relating to access to information regarding the applicant, are also provided for by the 1983 Act, the MHRT Rules and the 1983 Regulations. Accordingly, the Commission considers, and it is not disputed, that the interference was "in accordance with the law" within the meaning of Article 8 para. 2 of the Convention.

52. Moreover, the Commission observes that the purpose of the nearest relative system is to ensure that a patient has a close contact outside the psychiatric institution with sufficient powers to intervene, as that relative considers appropriate, in the best interests of the patient. The nearest relative can also be a source of valuable information about the patient for the responsible authority. As such the nearest relative system constitutes a supplementary protection and support for the patient. Disclosure of information to the nearest relative is designed to render the system effective, by ensuring that the nearest relative acts from an informed position. Accordingly, the Commission considers that the interference pursued the legitimate aims of the protection of health and of the rights and freedoms of others.

53. As to whether the interference was "necessary in a democratic society", the Commission recalls that this phrase implies that the interference must correspond to a "pressing social need" and, in particular, that the interference must be proportionate to the legitimate aim or aims pursued. In determining whether an interference is so necessary, a margin of appreciation is left to the Contracting States (see, for example, Eur. Court HR, Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, pp. 31-32, para. 67).

54. The Commission accepts the beneficial nature of the nearest relative system as outlined above and its potential to ensure the best supervision, planning and care for a psychiatric detainee.

55. However, the Commission notes, from the social work and psychiatric reports submitted in relation to the applicant's detention, that in the present case the applicant had a continuing difficult relationship with her mother and, in particular, that she made repeated assertions of sexual abuse by her step-father in the past. While no proceedings were ever brought as regards these abuse allegations, it is apparent from those reports that the applicant demonstrated and often expressed fear of her step-father whom she was aware continued to live with her mother during, at least, some of the period of her detention.

56. The Commission further notes that substantial information about the applicant and her condition was disclosed to the applicant's mother in her capacity as nearest relative. It included detailed information in relation to all MHRT reviews; the reasoned decisions of the MHRT after each review; and information provided to the applicant's mother in the context of her discussions about the applicant with representatives of the responsible authority.

57. Furthermore, while the applicant did not and does not challenge the nearest relative system itself, she requested during her detention to change her nearest relative in order to avoid further disclosure of information to her mother. The firmness of the applicant's convictions in this respect is illustrated by her request, prior to her discharge in 1996 and pursuant to section 133(2) of the 1983 Act, that her mother should not be informed of her discharge.

58. The Commission further observes that, while the patient can prevent the disclosure of information to her nearest relative in certain circumstances, the applicant was not able to prevent the disclosure to her mother of any of the information referred to above. In any event, when the patient's concern is the very identity of the nearest relative, the Commission is not convinced that a system which depends on a psychiatric patient objecting on each occasion when it is proposed to disclose information to the nearest relative affords adequate protection for the right to respect for the private life of the patient. It is true that the present applicant vetoed the disclosure of information about her discharge. However, she had, at that stage, been recognised by the MHRT as no longer requiring detention for treatment. Moreover, a veto system which would cover all disclosures to an unwanted nearest relative would, if fully used by a patient, substantially defeat the original purpose of the nearest relative system.

59. Most significantly, the Commission observes that the list of grounds contained in section 29(3) of the 1983 Act upon which an application can be made to change the nearest relative is exhaustive and does not include the concerns of the present applicant. Accordingly, despite the nature of the applicant's relationship with her mother and step-father, the impact of those relationships on her and the significant, unwanted and automatic disclosure of her private affairs to her mother, no application could be made to the County Court to change her nearest relative based on these concerns of the applicant. The lack of any such provision in section 29(3) of the 1983 Act is particularly serious given the extensive disclosures which are made to a nearest relative when that person orders a patient's discharge (under section 23 of the 1983 Act) or applies to the MHRT for a review of a patient's detention (under section 66 of the 1983 Act).

60. In these circumstances, the Commission considers that, even taking account of the Government's margin of appreciation, the absence of any possibility to apply to the County Court to change the applicant's nearest relative on the grounds of her concerns about the identity of that person renders the interference with her rights under Article 8 para. 1 of the Convention disproportionate to the aims pursued.

CONCLUSION

61. The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention.

M.F. BUQUICCHIO     E. BUSUTTIL

   Secretary                Acting President

           to the First Chamber              of the First Chamber