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