U.K. Government U-Turn On Mental Health Laws Enshrines World-Class Protections Heading Into 2021
The U.K. Government changed the law in March 2020 to enable one Doctor to authorise detaining someone in hospital under the Mental Health Act 1983 for weeks [or even months] at a time. Thankfully, that change to law has been removed, and the law remains as it was before – Two Doctors being needed to authorise detaining a person. This change came as part of the Coronavirus Act 2020 (Schedule 8).
A student of Law with the University of Essex (Online), Lijeh Perez, wrote to the Government in May 2020 and issued his application for Judicial Review at the High Court of Justice against the Secretary of State for Health & Social Care in July 20201: arguing that the change to the law was in breach of Article 3 of the Human Rights Act 1998 (no torture or degrading treatment).
On 5th August 2020, Lijeh had an email from the Government Legal Department confirming they will not revoke the changes to mental health law, and they provided a lengthy email with case law. The Government argued that one Doctor authorising detention was lawful, citing Varbanov v Bulgaria (“Varbanov”)2. In the case of Varbanov, the European Court of Human Rights found that the use of one Doctor was lawful in an emergency. However, Lijeh continued to argue that as the change had been brought in as part of the Coronavirus Act, it must relate to the situation accordingly, and argued that in the extreme conditions of a pandemic, it was degrading treatment to allow one Doctor to over-rule the wishes of a patient at a time when mental health issues are much more prominent. Lijeh argued that mental health conditions are difficult to explain, detect, and treat and thus must be given due care and attention. Lijeh further argued that while staying at home his panic attacks had become more frequent, and it was an act of torture for the Government to drop standards at such a scary time. Lijeh could not feel safe.
13th August, the Government Legal Department filed defence documents with the Court.
Many lovely people got involved... Lijeh's local Member of Parliament – Tahir Ali MP – expressed his interest in Lijeh's lawsuit and said he would be following it carefully. 'The BackBencher' published Lijeh's very first article about this issue3, with the article quickly circulating on social media. The Latest TV News Brighton aired his story in a video interview on their website4. The Parliamentary Joint Committee on Human Rights then acknowledged they had received Lijeh's research after he emailed them. Members of the public wrote to Lijeh online with accounts of their lives being impacted by the 'lockdown' measures. A former soldier wrote to the Health Secretary in support of Lijeh's case, asking the Health Secretary to consider that being confined isn't always the right route for medication, as he had worked with many people with mental health issues.
Throughout August into September 2020, Lijeh emailed back and forth with the Government, offering settlement agreements, citing case-law, citing academic studies into mental health during the pandemic, and citing official Government letters from 2019 to 2020 which Lijeh had received after writing to the Prime Minister and Health Secretary on previous occasions. Ultimately, he made it clear that the changes to mental health laws were scaring people and would lead to drastic consequences for those with mental health conditions.
21 September, Lijeh wrote to the Health Secretary asserting that the Health Secretary is wrong in their paperwork about the change to mental health laws not being unlawful, according to the HRA, citing Pretty v United Kingdom (“Pretty”)5. In the case of Pretty, the ECHR found that treatment which “humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance”6 falls within an Article 3 breach.
Finally, on 30 September 2020, Matt Hancock MP announced in the House of Commons that the changes to mental health laws would be removed:
“ When creating the Act, we included provisions to modify mental health legislation to reduce from two to one the number of doctors’ opinions needed to detain someone under the Mental Health Act 1983 and to extend legal time limits on the detention of mental health patients. These were always powers of last resort, and I was not persuaded, even in the peak, that they were necessary, because our mental health services have shown incredible resilience and ingenuity. I have therefore decided that these powers are no longer required in England and will not remain part of the Act. We will shortly bring forward the necessary secondary legislation to sunset these provisions. "7 - Health Secretary, Matt Hancock MP.
Lijeh's application for Judicial Review was refused in November 2020 as there is no Judicial Authority to overturn a Primary Act of Parliament. Luckily by then the laws which were the entire reason he went to Court had been removed. The High Court ordered that Lijeh pay the Government's legal costs, to which Lijeh objected: submitting documents to the Court explaining why he objected. The Government then notified Lijeh that he would not be required to pay. The case is now concluded in full.
As it now stands - Even the deadly Coronavirus Pandemic of 2020 isn’t enough to state that 1 Doctor detaining someone is necessary and proportionate in England. Quite an interesting precedent.
The mental health charity 'Mind' recently emailed Lijeh about the dangerous mental health laws being removed and they said:
“ We were very glad to see the removal of the powers in the Coronavirus Act too, and that the powers to make changes to the Mental Health Act 1983 have been removed from English law and partially removed from Welsh law. We were very glad also that the UK Government has recognised that even at the peak of the pandemic, it wasn’t necessary to use emergency measures that would have severely impacted the rights of people in mental health crisis in England “.
The U.K. Government recently released a White Paper and Consultation8 outlining reform to be made to the Mental Health Act 1983. The U.K. looks on track for a Mental Health Act 2022.
2020 also saw guidance for examinations for [compulsory] detention allowing remote examinations to be conducted. With the Government recently having to amend guidance for examinations for detention under the MHA 1983 due to the Court of Appeal finding that “ the phrases “personally seen” in s. 11(5) and “personally examined” in s. 12(1) require the physical attendance of the person in question on the patient. “9 it is clear that 2021 is already clarifying much needed protections for vulnerable people in a time of need. Lets hope that this interpretation of care standards, and a proportionate number of Doctors involved, continues for the sake of all of us. Law, and morality, affects us all throughout our lives.
“Whether and how to address them will be for Parliament to decide.”10
© Lijeh Anthony Perez 2021. All Rights Reserved
1 - Claim Number CO/2532/2020 – Lijeh Anthony Perez v The Secretary of State for Health & Social Care, and The Prime Minister.
2 - Varbanov v Bulgaria (App no 31365/96) (5 October 2000).
3 - https://thebackbencher.co.uk/lock-them-up-the-governments-lockdown-approach-to-mental-health/ <accessed 15 January 2021 >.
4 - https://thelatest.co.uk/brighton/2020/08/31/update-on-lockdown-and-mental-health/ <accessed 15 January 2021 >.
5 - Pretty v United Kingdom - 2346/02  ECHR 427.
6 - Ibid Paragraph 52.
8 - https://www.gov.uk/government/consultations/reforming-the-mental-health-act <accessed 15 January 2021 >.
9 -  EWHC 101 (Admin), Paragraph 62.
10 -  EWHC 101 (Admin), Paragraph 63.