allows for the removal to, and detention and maintenance in, suitable premises, of persons in need of care and attention, even if they refuse to go, and refuse consent to having care and attention. It does not enable them to be medically treated, but if they were to be found to lack mental capacity on arrival at hospital, they could be treated under the doctrine of necessity by medical staff.
If the magistrates’ court (which has to be involved) is satisfied that an order for removal would be expedient, it can order that removal, by a specified officer of the appropriate authority. The period of the order can be for up to three months, and then it can be extended for further periods of up to three months. The person has to wait for 6 weeks before applying to revoke the order.
If the emergency procedure is pursued, involving simply the health authority officer and another registered medical practitioner, then the period is only three weeks, but no application for its revocation can be made. An order may be sought from a single magistrate without giving the person concerned any notice of the application if the community physician and another doctor state that it is ‘ in the interest of that person to remove him without delay’ – see s1(1) National Assistance (Amendment) Act 1951. The application may be made directly to the magistrate by the community physician.
The s47 power is an unwieldy power because it requires the co-operation of an officer from the health authority who must certify that certain factual circumstances exist, and a professional judgment of the implications of the situation is necessary. Secondly, the power has been given not to social services authorities, but to district councils, who usually allocate an environmental health officer to the role. Such officers are not best suited to seeing this as a power for the protection of vulnerable adults.
The government has publicly identified three ways in which the Act may be incompatible with Convention rights. We think that one of those aspects is clearly incompatible – the six week period which must expire before the order can be revoked at the suit of the person made subject to the order.
We would be confident that the incompatibility which exists is the fact that article 5(4) of the European Convention allows anyone deprived of their liberty, a Convention right to take proceedings by which the lawfulness of the detention shall be decided speedily by a court! The absence of any appeal against an order is bound to be incompatible; and the 6 weeks which must elapse before an order could be challenged would we think be bound to be incompatible with the requirement of speediness.
However, it is hard to see who could be made defendant to any legal action by the aggrieved person, at least under the UK’s Human Rights Act. The 6 week period is laid down in crystal clear statutory language, for which neither the magistrates, the health authority or the local authority is responsible.
In addition, there is a statutory defence available in this situation to an action for damages. An exception to the prohibition on acting inconsistently with Convention Rights exists where an authority is positively forced to do so, by ‘crystal clear’ language in a statute, or secondary piece of legislation which cannot (in the light of the primary legislation under which it is made), possibly be construed any differently, other than incompatibly with Convention rights.
Where such provisions exist, all anyone can get out of a human rights court case in this country is a certificate of incompatibility, which does not force a change in the law.
However, where a provision in a statute or regulations can be made compatible with Convention Rights by a bit of semantic gymnastics, then it is the duty of all public authorities, including the courts, through their interpretative role, to do that ‘stretching’ – see s3 of the Act. The stretching duty is a strong duty and this is central to our view that s47 is able in most cases to be given effect in such a way as to stay on the right side of human rights principles. The 6 week provision need not exclude judicial review of the legality or reasonableness of the making of the order, and this could make use of the section compatible with the Convention again.
Other human rights issues
Since an application has to be made to a Magistrates’ Court, there can be little doubt that this will provide an ‘independent tribunal’ for the purposes of article 6 of the Convention on Human Rights, which enshrines the right to a fair trial. And so long as ‘ex parte’ (without notice) emergency proceedings are only used when there is reasonably considered to be a very pressing social need, then that should be acceptable and proportionate as well.
The DoH wrote to health authorities in August 2000 setting out the reasons for its other concerns, and encouraged authorities to collate information on use of the procedure, and reasons for it, from whence it would then be calculated whether there is a severe enough risk of incompatibility to alter the legislation.
The letter took care to mention the other public health/protection powers which exist and which could be used in a less draconian way than s47. The ones mentioned were:
s35 and 37 Public Health (Control of Disease) Act 1984, under which the court can order the medical examination of a person thought to have or be carrying a notifiable disease and order their removal to hospital and their detention there. These powers apply to AIDS patients, but also to those with measles and rubella, mumps, etc. – the crucial feature being that s67(2) of the Act provides a right of appeal against such orders to the Crown Court.
Powers to provide services in health and social services legislation.
We would mention other powers which may fit the problems most commonly found, in practice, a bit better: there are powers concerning statutory nuisances, available under
the Environmental Protection Act 1990 (s79-82 and schedule 3);
filthy and verminous premises and persons (under s83 of the Public Health Act 1936 as amended).
We deal with the reasons why we think that the other concerns of the DoH (regarding article 5 and article 8) are unlikely to prove well founded, in the subscription-only part of this database. Site visitors should refer to the recent case of HM v Switzerland, on this site, in the European Court of Human Rights, however, for an indication that the approach to whether the right to liberty has been breached will be paternalistic, and seeking a way out of such a finding.
Suffice to say, here, that the most important thing for public authorities to do, to ensure that only human rights compatible decisions and actions occur, will be to document the consequences of trying out other methods of dealing with the problem first, so that the decision to use these powers is hence more likely to be seen as proportionate.
The challenge for a local authority and an HA is to have a coherent and lawful policy for choosing which statutory power is best to use, in different circumstances.
Joint working implications
In addition, in practice, ‘cultural’ problems inevitably arise from the fact that the consultants in communicable disease control used as the source of the medical evidence required, are often unsure of their role and assume that their usual remit, professional skills and specialisms will be relevant in discharging these s47 responsibilities – and if communicable disease is not an issue, then there’s no problem warranting action.
Thus they may well be puzzled if called out by the Environmental Health Officer, instead of someone from social services, to a situation where there is no risk of communicable disease or infection. However, the first potential situation for lawful use of s47 NAA powers under domestic law is that a person is suffering from ‘grave chronic disease’. The additional ‘insanitariness’ condition does not apply to such persons, and there is nothing to require that ‘disease’ to be anything worse than an illness – it does not have to be an infectious illness, if the person is gravely chronically ill.
If that consultant then requires evidence of a public health risk, before they will certify that the statutory criteria are met, even though the mandatory pre-conditions set out in the statute are made out, and a best interests argument restricted to the patient alone can also be made out, for legally valid action, then they are not discharging their function properly. Local authorities need to understand that that stance is simply, in law, the consultant applying a HA policy as to what makes removal and detention ‘necessarily’ appropriate – and such policies would have to be justifiable, given the clear wording of the legislation allowing intervention on a best interests basis.
Neither the Human Rights Act, nor the Convention, requires a public health risk before detention is justified. They merely require a proportionate response, within the law. It is enough for legality if the person is of unsound mind, or a drug addict or an alcoholic, as well as it being sufficient if they are threatening the spread of infectious diseases, as long as the domestic law preconditions have also been satisfied and detention is a proportionate response.
It is important to note too that neither the NAA nor the HRA says anything about the mental capacity of the person being relevant to the legality of the action. Professional agreement by all those concerned with the procedure as to a person’s mental incapacity would make someone count as a person ‘of unsound mind’, but the converse is not true: someone can be totally capacitated, but otherwise physically incapacitated and living in insanitary conditions, so as to meet the pre-conditions of domestic law, but also thereby threatening the spread of infectious diseases.
Relevance to Adult Protection
Section 47 is an important part of health and local authorities’ Adult Protection powers, and indeed a duty which may have to be discharged, so far as the human rights of others are concerned, to the peaceful enjoyment of their properties and possessions, if they are neighbours to those against whom s47 might need to be used.
Environmental Health Officers’ decisions not to act (under either Public Health or s47 NAA powers) would only have been challenged in the past, if they were unreasonable. We believe that the test from now on will be that the decision not to act now has to be proportionate, having taken into account the human rights of, and other legal duties which may be owed to, all those parties concerned. We envisage that neighbours will readily challenge authorities for failure to act or delay in acting effectively in such cases, if the recent television programmes are anything to go by bearing witness to 16-18 Environmental Health Officer visits and expenditure of £60,000 per home, on average, in attempting for years to negotiate with the occupiers for an improvement of appalling domestic conditions.
Full recording of the weighing and the balancing process will be the best thing an authority can do, to defend itself from challenge in such situations. A policy of only ever using s47 as a last resort is not a safe one for an LA to have, in legal terms, in our view, given the human rights of other people which may be in play.
But if authorities act on an old view of what they thought the law allowed (which seems, anecdotally, to be that one could use it whenever it was ‘necessary’ in the public interest, regardless of existence of the other pre-conditions) there will be claims, not just in Human Rights law but also under the ordinary administrative law principle of illegality.