Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 32

HAGUE CONVENTION ON THE INTERNATIONAL PROTECTION OF ADULTS

The Convention

1. The Hague Convention on the International Protection of Adults sets out private international law rules governing the protection of incapable adults⁵.

2. The purpose of the Convention is to set out rules among Contracting States for determining which country's courts or administrative authorities have jurisdiction in situations involving incapable adults who have connections with more than one country, which country's law applies, and how the decisions of one country's authorities may be enforced in another country. The Convention is a private international law and judicial co-operation measure and is not concerned with the content of member states' substantive laws relating to the person and property of incapable adults.

3. The Convention provides that, in the usual case, the judicial or administrative authorities of the Contracting State of the habitual residence of the adult have jurisdiction directed to the protection of the adult's person or property⁶. There are, however, various exceptions.

4. In the usual case, the authorities of the Contracting State which has jurisdiction under the terms of the Convention are to apply their own law in exercising it, although again, there are exceptions.

5. The final text of the Convention was agreed at a meeting of the Special Commission of the Hague Conference on Private International Law on 2 October 1999. The United Kingdom signed the Convention in January 2000, but it has not, thus far, been ratified by the UK.

6. The general provisions of the Convention and their applicability to UK law are outside the remit of this Committee. However, it seems reasonable to attempt to ensure that the new Mental Health Act is consistent with the Convention and the internationally accepted rules that it embodies. This will also facilitate the UK's ratification of the Convention, should that be decided upon.

Implications of the Convention for mental health law

7. The Scottish Courts Administration, alongside the Lord Chancellor's Department and the Northern Ireland Office of Law Reform, issued a consultation paper on the draft Convention in April 1999, to which the Committee responded. We were pleased to receive in reply a substantive response to our comments and queries from the head of the United Kingdom delegation at the Special Commission of the Hague Conference on Private International Law (which drew up the draft Convention).

8. The main purpose of the Convention is to deal with measures of protection, such as the appointment of a guardian, for incapable adults. It is, therefore, of much more relevance to the Adults with Incapacity (Scotland) Act 2000 than to the present review. It would however, apply to judicial measures taken under mental health law.

9. One important limitation on the scope of the Convention in a mental health context is that it applies only to 'measures of protection' which means in this context only steps with legal effect. Therefore, for example, the treatment of mental illness or making a recommendation or report relating to a person with mental illness are outwith the scope of the Convention. The main implications of the Convention for the Committee, therefore, will surround the legal step of detaining a person habitually resident outside Scotland.

10. Another important limitation is that only 'judicial or administrative authorities' are covered by the provisions of the Convention. The Convention does not, therefore, have any implications for the decisions of individual doctors or social workers (or other individuals), though it does for the courts, for the Mental Welfare Commission, local authorities and probably hospital managers.

Emergency and short term detentions under the 1984 Act

11. The Convention gives powers which allow for judicial or administrative authorities to detain people not habitually resident in the State, on an emergency or short term basis.

12. Article 10 (1) of the Convention states:

"In all cases of urgency, the authorities of any Contracting State in whose territory the adult or property belonging to the adult is present have jurisdiction to take any necessary measures of protection".

13. This power lapses as soon as the State which would normally have jurisdiction takes over.

14. Article 11 allows the authorities of a Contracting State within which the adult is present to "take measures of a temporary character... which have a territorial effect limited to the State in question" to protect the adult, until the authority with jurisdiction takes over.

15. In Scotland, there is a question as to whether it is, in fact, a 'judicial or administrative authority' that places the person on emergency or short term detention. The doctor does not constitute an authority within the meaning of the Convention. However, the doctor technically makes a 'recommendation' for detention, but it is not clear whether this recommendation is, in fact, to a judicial or administrative authority, with whom the responsibility for the legal step finally lies. The 1984 Act does not appear to spell out to whom the recommendation is actually made, although we assume that, as with long term detention, it is implied that the recommendation is to hospital managers.

16. We believe that it is probably rare that a person not habitually resident in Scotland requires emergency or short term detention. However, should this occur, we suggest that it would be desirable if such a case fell within the provisions of the Convention. For this to be the case, his or her detention would have to be undertaken by a 'judicial or administrative authority'.

17. This could be achieved by two means: either by clarifying the sections relating to emergency and short term detentions so that they state that the recommendation of the doctor (and the mental health officer (MHO)) is to an authority within the meaning of the Convention, or by having separate detention provisions in place for patients habitually resident outside Scotland.

18. The former seems the simpler method, and consistent with the general approach of the Act. We therefore believe that the Act should make it clear that recommendations by doctors and consent from the MHO (if obtained) should be made to the hospital managers, whose responsibility it will be to detain the person.

Long term detentions and community orders

19. For long term detention, jurisdiction would probably derive from a detained patient's 'habitual residence' rather than any other criterion. We therefore imagine that, in the usual case, patients habitually resident outside Scotland would be returned to the country of their habitual residence instead of being given long term detention orders.

20. However, there will be situations when this will not be appropriate. There may be a need to detain a person from abroad for more than the 28 days allowed for short term detention, to investigate the person's circumstances and determine the best course of action. The Convention would seem to allow for this. The review of long term compulsory measures by an independent tribunal would bring these within the scope of the convention.

21. It is unlikely to be appropriate to give a community order to someone habitually resident outside Scotland.

Inter-country transfers

22. It may prove to be difficult to transfer a detained patient from one country (e.g. the country of temporary detention) to another (e.g. the country of the habitual residence) without the patient at some stage losing the status of being subject to detention. At present the 1984 Act simply gives Scottish Ministers the right to deport non-UK patients⁷.

23. Article 33 of the Convention provides for the recognition of orders made in one country for placements in another country, provided there has been proper consultation and no objection by the receiving country.

24. Therefore, we propose that, taking advantage of this provision in the Convention, there should be a specific provision in the Act which states that detentions continue to apply during the period of transfer to a country with jurisdiction over the patient, and until such time as the patient is transferred to the control of the judicial or administrative authorities in the new host country.

25. The actual length of detentions should not normally be any longer than would be the case if the patient remained in Scotland.

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