R (OK) V FIRST-TIER TRIBUNAL AND GAMBIAN FAIRVIEW (INTERESTED PARTY) (2017)

Keywords: Capacity, MHRT

This case was an application for judicial review of the Mental Health Review Tribunal’s (MHRT) decision to refuse to hear an application made by a solicitor on behalf of a patient who lacked capacity to make the application himself, or to authorise anyone to do so on his behalf. The patient had diagnoses of autistic spectrum disorder, severe learning disability, epilepsy and challenging behaviour and was detained under s.3 MHA.

On behalf of the patient, it was argued that a gap exists in the Mental Health Act that failed to provide for patients who lack the capacity to decide to apply to MHRT and this was incompatible with the Human Rights Act 1998 (Articles 5, 6 and 14). It was argued that the gap should be remedied by allowing patients to apply to MHRT with the assistance of a litigation friend if necessary.

The Upper tribunal rejected this argument. The House of Lords (in R (H) v Secretary of State for Health [2006]) had previously ruled that the overall scheme ofthe Mental Health Act 1983 was compatible with the Human Rights Act 1998. The patient in that case had been detained under s.2 but there was no material difference resulting from this patient being detained under s.3.

The Mental Health Act scheme provided a number of potential routes to MHRT for a patient who lacked capacity:

  • Application by the nearest relative (s.66 MHA 1983)
  • Application by a welfare Deputy or Attorney (MCA 2005 applied to s.66 MHA)
  • Referral by Hospital Managers in certain circumstances (s. 68 MHA)
  • Referral by the Secretary of State (s.67 MHA)

It was also pointed out that in this case a relative had successfully asked the Secretary of State to use the power to refer the case to tribunal. Consequently, Jacobs J concluded:

“I accept that there appears to be a gap in the protection of a patient’s right to bring their case before the First Tier Tribunal, but that is apparent only when the tribunal’s rules of procedure are considered in isolation. It disappears when the various duties and powers under those rules, the Mental Health Act 1983 and the Mental Capacity Act 2005 are considered as a package. This case is governed by the reasoning in R (H). There is no violation of the patient’s Convention rights. An application for the Secretary of State to refer his case could have been made under section 67 and, if that was refused, the patient could have had recourse to judicial review.” (para. 21)

COMMENT

It is perhaps unsurprising that the differences between s.2 and s.3 MHA were held to be insufficient to decide this case differently to the earlier House of Lords judgement in R (H). Nevertheless the case does raise ongoing concerns about the situation of patients detained under the MHA who lack capacity to apply to an MHRT.

Where a patient lacks concerned family or friends they remain (as a result of this decision) entirely dependent on state officials with the power to do so taking the initiative in referring their case to MHRT. Both the House of Lords (in R(H)) and the European Court of Human Rights (in MH v UK [2013]) have clearly indicated that the Secretary of State’s power to refer (under s.67 MHA) becomes a positive duty under the Human Rights Act to refer in any case in which the patient’s right to speedy judicial scrutiny of deprivation of liberty is at risk of being infringed (Article 5(4)).

However, it is less clear how this would actually work to protect rights in practice. It is not at all unusual for a patient to have nonearest relative and welfare deputyship remains rare. As the ECtHR pointed out in MH v UK [2013]:

“The question might be asked whether such a hearing could have taken place had the applicant not had a relative willing and able, through solicitors, to bring her situation to the attention of the Secretary of State.”(para. 95)

Since both that case and the current case involved patients whose relatives were actively pursuing their interests, that question still remains to be answered.

Full judgement available at: http://www.bailii.org/uk/cases/UKUT/AAC/2017/22.pdf