This case concerned MH, a severely mentally disabled young woman with Down’s syndrome. She lived with her mother BL (and nearest relative) who was deeply distrustful of health and social services and rejected the help they offered. As a result MH was denied therapy and social skills which might have helped her lead a fuller life.
Things got progressively worse and MH became increasingly disturbed in her behaviour. When BL refused entry to her home for a mental health assessment, a warrant under s135 Mental Health Act 1983 (the Act) was obtained and executed and MH was detained under s2.
MH had the right to apply to a MHRT for discharge within the first 14 days of detention, however she lacked the mental capacity to exercise this right. BL sought to discharge her but MH’s RMO opposed this application under s29 MHA and she was not discharged.
It was decided to find MH a suitable residential placement and a guardianship application under s7 of the Act was made. BL objected to guardianship and an application was made to displace her and appoint an “acting nearest relative.” The application was made before the expiration of the 28 day detention period under s2, which meant that MH remained liable to detention for assessment so long as the displacement application remained undetermined, in accordance with the express provisions of s.29.
Unfortunately it was not until 2 years later when the Court of Appeal finally dismissed BL’s appeal against an interim displacement order in Brenda Lewis v Mark Gibson & MH (by her Litigation Friend, the Official Solicitor) In the mean time the County Court had made an interim guardianship order to safeguard MH’s interests pending the outcome of the case. S29 (4) did not however provide a right for a person’s detention to be reviewed whilst awaiting the outcome of the guardianship application or whilst detained under s.2. This right only applied to a person detained for treatment under s.2. The Secretary of State had a discretionary power to refer a person ‘liable to be detained’ to a tribunal. Such a referral was made in MH’s case and the tribunal decided not to discharge her.
Proceedings were brought by BL and the Official Solicitor including challenges to the compatibility of the Act with the ECHR. The Court of Appeal held that s2 of the Act was incompatible with Article 5(4) in that there was inadequate provision for the reference to a court for a person who was unable to exercise that right on their own initiative. It also found s29 (4) incompatible with Article 5(4) since it did not provide for a reference to a court for patients detained under s2 where their detention was extended by operation of s29 (4). It made declarations of incompatibility in both cases. The Secretary of State appealed against this decision to the House of Lords.
(1) The House of Lords asked itself whether s2 was incompatible with the procedural protection laid out in Article 5(4) designed to procure the speedy release of someone who should not have been detained or who should no longer be detained. This included a “review of the lawfulness (of detention) to be conducted at reasonable intervals” Winterwerp v the Netherlands (1979). Patients who lack the capacity to enforce their Article 5(4) rights are disadvantaged but this did not mean that s2 was itself incompatible with the Convention; instead every effort needed to be made to enable that person to exercise those rights. The Act provided a statutory duty for hospital managers to ensure that patients and relatives understood how to access a mental health review tribunal and how to obtain legal advice and an application could be made to a tribunal within the first 14 days of detention (s132 MHA). The court found that there were sufficient safeguards under this provision and consequently s2 was not incompatible with Article 5(4) ECHR.
(2) The judges then considered whether s29 (4) of the Act was incompatible with Article 5(4) ECHR. The issue here was the lengthy wait whilst proceedings were underway, though it was thought that to proceed too quickly could lead to breaches of Article 6 and Article 8 rights. Although there were remedies to secure compliance with a patient’s Article 5(4) rights such as judicial review and habeas corpus, the best way of doing this would be to speed up the proceedings at the County Court or by a Secretary of State’s discretionary referral back to a tribunal under s67(1) of the Act, as occurred in MH’s case. Either way it was possible to operate s29 (4) in way that was compatible with the Convention. If the Secretary of State failed to act, that failure could in itself be judicially reviewed.
Appeal allowed (unanimously) and both declarations of incompatibility set aside.
The decision by the court equated the right to take proceedings with there being the means of putting a patient’s case before a judicial authority i.e. if the case could be put before a judicial authority at reasonably frequent intervals, there would be no breach of Article 5(4).
This author considers there must be some doubt as to whether this is correct (or would be held by the ECHR to be correct). Their Lordships found no authority in the case law of the ECHR and of the domestic courts which has a bearing on this issue and which pointed towards the conclusion that it is not unacceptable for a patient to have to rely on the Secretary of State’s discretion in order to get his case before a Tribunal, in terms of that amounting to a “right” to take proceedings for the purposes of Article 5(4). The Secretary of State was obliged to act compatibly with the patient’s Convention rights and provide a reasoned decision as to why the patient should not be referred back to the tribunal. The Secretary of State would be bound to exercise this power where a failure to do so would result in an unreasonable period elapsing since a patient’s case was last put before a Tribunal. A decision on the part of the Secretary of State not to refer back to the MHRT could and should be met by a request by an advocate or supporter for the reasons for his or her decision. A failure to provide a reasoned decision should be met by an application for judicial review.