The law’s insane treatment of the mentally ill

In 1843, the philosopher Jeremy Bentham said: ‘Publicity is the very soul of justice… It keeps the judge while trying, on trial.’ Bentham recognised that public justice – forcing courts to hear argument and make decisions in public – was the strongest safeguard against the arbitrary and tyrannical application of the law.

Last week in Britain, however, we saw the dark side of open justice. Ian Brady, the Moors murderer, argued before a mental health tribunal at Ashworth Hospital that he was not insane, and should be transferred to a prison where he would be able to starve himself to death. The court disagreed and kept Brady in compulsory treatment. Brady has spent the past 25 years at Ashworth, a secure hospital for people detained under the Mental Health Act.

Brady’s hearing provided a rare opportunity to witness what is normally a highly secretive process, which, taking place under the Mental Health Act, is used to determine whether a person should remain in compulsory treatment. Such tribunal proceedings have long been shrouded in secrecy. The hearings tend to take place in rooms at secure hospitals rather than in open courtrooms, and very strict controls are exerted on what information can be made available to the public.

Last year, however, a court ruled that Brady’s hearing should be held in public, with the proceedings broadcast to Manchester Civil Justice Centre through a live video uplink. Neither the press nor members of the public would be permitted inside the courtroom itself. The reasons the court thought it proper to hold this hearing in public will never be known, because the judge ruled that his rationale should be kept confidential.

Brady’s application before the tribunal was a challenge to the order which branded him a paranoid schizophrenic and saw him dispatched to Ashworth 25 years ago. He has since attempted to court attention by variously starving himself, writing bonkers letters and refusing to disclose the location of one his victims’ bodies – that of Keith Bennett. Having to sit through more of the geriatric Glaswegian’s nonsense must have been extremely difficult for the families of his victims, who complained about the extortionate cost (around £250,000) of publicising these proceedings.

In one sense it is hard to disagree with the complaints about Brady’s hearing. It was clear to those who work with Brady, and those who have followed his behaviour while he’s been incarcerated, that his application to publicise the hearing was a means of providing himself with a platform to indulge his chronic narcissism.

But at least the case has brought to light the issue of open justice in mental health tribunal proceedings in modern Britain. The recent case of Wanda Maddocks, who was jailed by the secretive Court of Protection for removing her brother from a care home, led many to question the right of that court to resolve in secret complex societal questions about the care of vulnerable adults. The Maddocks case led one senior judge to issue a circular among the senior judiciary reminding them of the importance of open justice when determining the question of whether someone ought to be imprisoned. So the question should be asked: why does open justice matter less when addressing the freedom of those who are or have been mentally ill?

Proceedings under the Mental Health Act determine whether or not a patient should be detained for their own protection or for the protection of others. For those involved, the tribunal involves one of the key questions of a criminal trial: is the person before the tribunal fit to be a member of wider society? Of course, the content of the proceedings are vastly different. Often, mental health tribunal hearings involve a detailed analysis of the evidence surrounding a person’s state of mind. It is for this reason that the mental health tribunal is often thought of as undertaking a protective role towards its subjects. There is, under the Mental Health Act, a presumption that proceedings to determine ongoing detention should be held in secret because it is thought that patients are incapable of weighing up for themselves the relative benefits of having a hearing in public or in private.

Patients can apply to have the hearing of their case in public, as Brady did, but the court can refuse such an application if hearing the case in public would be contrary to the patient’s interests. Apparently, very few patients make applications to have their hearings in public. This is unsurprising; those before a mental health tribunal are more likely to be concerned with securing their freedom by cooperating as much as possible, rather than appearing recalcitrant by refusing to accede to a secret hearing.

Notwithstanding the lack of applications for public tribunals, the assumption in favour of secrecy in these proceedings makes no sense. Of course, patients themselves may not understand the consequences of publicity and confidentiality, but it is the job of the court, the patient’s representative, as well as the patient’s family, to equip the patient with as much understanding as possible so that he can actively engage in the proceedings which are deciding his future. It is a funny kind of ‘protection’ which deprives citizens of their liberty as a result of decisions made behind closed doors.

Worse, the assumption in favour of secrecy denigrates the freedom of the mentally ill. It turns them into a ‘special case’, an exceptional group in relation to which the normal rules of justice and transparency need not apply. If we believe that those with mental illnesses should be treated equally before the law, then it should be assumed that any proceedings to determine their suitability to rejoin society should be held in public. It could, of course, be up to an advocate or a member of the patient’s family to apply for the proceedings to be held in secret, but in assuming secrecy, we devalue the freedom of those with mental illnesses, as if our need to protect them should inevitably trump the need to respect their autonomy.

The right to have your freedom adjudged in public should not be the preserve of those with a clean bill of mental health. Of course, there may be occasions when the doors should be closed, if the patient or his family thinks it necessary. But if a mental health tribunal has any regard for the status of patients as potential citizens, then this hitherto secretive court must open its doors and allow itself to be imbued with the ‘very soul of justice’: the robust scrutiny and judgement of the public.

Luke Gittos is spiked‘s law editor. He is also a paralegal in criminal law and convenor of the London Legal Salon.