B v Mental Health Review Tribunal and another [2002] EWHC 1553 (Admin)

Mental health – discharge – tribunal – delay – human rights

B, who was a paedophile with a psychiatric disorder, was a restricted patient under sections 37 and 41 of the Mental Health Act 1983. He was recalled to hospital under s43(3) by the Secretary of State, who requested an adjournment of B’s hearing before the MHRT in order to obtain expert evidence. That Tribunal granted the application without giving B an opportunity to make representations. There were further delays whilst B obtained medical reports. B’s case was eventually heard some 9 months after it was originally listed for hearing and he was discharged soon after.

B brought proceedings claiming that the delay of nine months amounted to a breach of his right to liberty under art 5(4) of the European Convention on Human Rights. He submitted that the decision to adjourn the original hearing had been made in breach of natural justice, since his representatives had not been given an opportunity to be heard, and that in any event an adjournment had been inappropriate, since the Secretary of State had been at fault in leaving the instruction of an expert to such a late stage. B argued that all of the subsequent delays flowed from that adjournment.

Allowing B’s application, the court held that rule 29(cc) of the Mental Health Review Tribunal Rules 1983 provided some indication of the time scale envisaged by Parliament for the hearing of such applications (ie no later than eight weeks from the date of receipt of the application). The underlying problem, in this case, was the lack of case management by the Tribunal. At each stage, the tribunal ought to have had in mind the delay which had accrued and given directions against that background. The longer the delay that occurred, the more aggressive the directions would have to be, in order to ensure an early disposal of the case. There would come a time where the convenience of expert witnesses had to cede to the need for the Tribunal to conclude a substantive hearing. No adequate explanation had been provided for the delays, and it followed that there had been a breach of art 5(4) of the European Convention on Human Rights.

Although the lawfulness of B’s detention was in the end confirmed, the judge found that the breach of article 5(4) nevertheless gave rise to an issue whether B was a victim and entitled to compensation. He therefore directed that the issue of compensation be determined later along with the other claims arising out of the decision in KB and others.

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