MH v Secretary of State for the Department of Health [2004] EWCA Civ 1609

Compatibility of Article 5(4) ECHR with s2 and s29 Mental Health Act 1983 where proceedings are underway to displace the nearest relative

 

MH was a 32 year-old woman suffering from Down’s Syndrome.  Due to a mental disorder, she was detained under s2 of the Act for assessment.  Shortly afterwards, her mother (the nearest relative), made an application to discharge her under s23, but MH’s responsible medical officer (RMO) issued a barring order under s25, considering that if MH were to be discharged she would be a danger to herself or others.  A s29 application was then made to the court for the mother to be displaced as the nearest relative.  MH remained in detention under s2, in accordance with s29(4) and pending the outcome of those proceedings.

 

The issues before the court were:

 

(1)     MH could not access the Mental Health Review Tribunal (MHRT) because she was  not competent to initiate the application, nor could she instruct another to do so on her behalf;

 

(2)      The application of S29(4) could extend the s2 assessment period for competent or incompetent patients for many months (beyond the initial 28 day period) without recourse to the MHRT (in the case of MH it was 20 months).

 

The Court of Appeal found that the Act provided inadequate safeguards to ensure compliance with the European Convention on Human Rights (ECHR) even though there was limited access to the MHRT provided under the Act.

 

Incompetent patients detained under s2 are not practically capable of making an application to the MHRT except with the help of the nearest relative, which in MH’s case was not possible after s29 proceedings were commenced.  The same difficulty could potentially apply to patients in similar circumstances detained under s3.  A further problem for MH was that she was not a party to the s29 proceedings, and therefore her human rights were not an issue that could be placed before the court.

 

Article 5(4) ECHR states that “Everyone who is deprived of their liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court.” The court held that since MH was herself unable to do this, then the State should do so on her behalf.  The 28-day period was of sufficient duration to warrant the necessity of judicial safeguards.  She should not have to rely on the discretion of the Secretary of State (a non-judicial body) under s67 of the Act in order to have her application referred.  This was an inadequate safeguard.   Article 5(4) assumed both competent and incompetent persons would be in the same position.

 

In relation to s29(4) the court found that any detention beyond the normal 28 day assessment period did not have adequate judicial supervision.  An application for judicial review was an inadequate remedy since it does not challenge the merits of the detention but simply determines whether the correct procedure was followed in relation to it.  Furthermore, such a court was insufficiently specialist to consider such medical matters.  The view of the Court of Appeal was that all patients should have a right to apply to the MHRT in respect of an extension to their s2 detention by reason of the operation of s29(4).

 

Since the court could not amend primary legislation, (although it agreed that this was what was needed) it decided to make the following declarations of incompatibility.

 

(1)   that s2 of the Act is incompatible with Article 5(4) ECHR in that it does not make adequate provision to refer a patient to a MHRT where the patient is incapable of exercising that right on her or his own initiative.

 

(2)   That s29(4) of the Act is incompatible with Article 5(4) ECHR in that it does not make adequate provision to refer a patient to a MHRT where their period of detention is extended by operation of this section.

 

In addition to recommending amendments to sections 2 and 29 of the Act, the court also suggested that the responsibility of hospital managers under s68 could be extended to include the referral of incompetent patients admitted under s2 (within the relevant time limits) or where s29(2) applied.

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