Challenging the Lawfulness of Detention - Mental Health Tribunals, etc
| Author | Michael Butler |
| Pages | 131-145 |
Part Five
Tribunals and Discharge
Chapter 14
Challenging the Lawfulness of Detention – Mental Health Tribunals, etc
14.1 INTRODUCTION
Article 5(4) of the ECHR requires that a patient detained under the MHA 1983 should have the opportunity to take proceedings by which the ‘lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is no longer lawful’. For these purposes, the ECtHR, in X v UK (Application No 7215/75) [1981] ECHR 6, following the judgment in Winterwerp v The Netherlands (Application No 6301/73) [1979] ECHR 4 (see para 2.7.2), confirmed that ‘lawfulness’ should be interpreted to cover both procedural and substantive issues.
In respect of civil detentions, a patient is able to challenge the procedural lawfulness of his detention (e.g. whether the detaining authority has exceeded its powers or whether an essential procedural requirement has been overlooked) by means of a writ of habeas corpus or judicial review proceedings. These remedies are considered briefly at para 14.2.
Quite separately, however, all patients are able to challenge the substantive lawfulness of their detention (whether the detention is justified on the merits, whether the criteria for detention are made out) by applying to the MHT for discharge. The bulk of this chapter, therefore, considers the rules set out in Part V of the MHA 1983, which govern when a patient may make an application to the MHT or when the case of a patient must be referred to the MHT. Procedural issues concerning MHT hearings are then considered in Chapter 15, and the statutory criteria to be applied by MHTs when deciding on the substantive lawfulness of detention are considered in Chapters 16–18.
134 A Practitioner’s Guide to Mental Health Law
14.2 CHALLENGING THE FORMAL LAWFULNESS OF DETENTION
14.2.1 Habeas corpus
A writ of habeas corpus is one potential remedy available to anyone who wishes to challenge the formal lawfulness of his detention. The basis of the claim will be that there is no legal authority to detain the individual in question and that the detaining authority or individual has acted outside their lawful powers. Where such a claim is made, the person or body responsible for the individual’s detention can be required to justify to a court that the detention is in fact in accordance with the law. As put by Sir Thomas Bingham MR in Re S-C [1995] EWCA Civ 60, ‘the ordinary form of a writ of habeas corpus requires a custodian to produce the body of an applicant and show cause justifying the detention’.
Any application for a writ of habeas corpus will be made to the High Court. Procedure is governed by Schedule 1 to the Civil Procedure Rules 1998 (SI 1998/3132), incorporating Order 54 of the Rules of the Supreme Court 1965 (SI 1965/1776). The remedy sought will be the release of the individual concerned.
In X v UK (Application No 7215/75) [1981] ECHR 6, the ECtHR described the scope of habeas corpus thus (at paragraph 56):
In habeas corpus proceedings, in examining an administrative decision to detain, the court’s task is to inquire whether the detention is in compliance with the requirements stated in the relevant legislation and with the applicable principles of the common law. According to these principles, such a decision – even though technically legal on its face – may be upset, inter alia, if the detaining authority misused its powers by acting in bad faith or capriciously or for a wrongful purpose, or if the decision is supported by no sufficient evidence or is one which no reasonable person could have reached in the circumstances.
Somewhat more concisely, in R v Secretary of State for the Home Department ex parte Cheblak [1991] 2 All ER 319, Lord Donaldson suggested that, ‘a writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful’.
As to the type of mental health cases where an application for a writ of habeas corpus will be appropriate, the Court of Appeal in Re S-C [1995] EWCA Civ 60, cited the principle from R v Secretary of State for the Home Department ex parte Muboyayi [1992] QB 244, namely that (at page 7):
where the power to detain is dependent upon the existence of a particular state of affairs (‘a precedent fact’) and the existence of that fact is challenged by or on behalf of the person detained, a challenge to the detention may be mounted by means of an application for a writ of habeas corpus.
In Re S-C [1995] EWCA Civ 60, the complaint was that the application for detention had been made without consultation with the patient’s nearest relative, a ‘precedent fact’ upon which a lawful application was dependent. It was claimed, therefore, that there was an absence of any jurisdiction to apply for detention. Habeas corpus was held to be an appropriate remedy in such circumstances.
Similarly, the remedy successfully claimed in GD v Edgware Community Hospital and London Borough of Barnet [2008] EWHC 3572 (Admin), [2008] 1 MHLR 282 (inadequate consultation with nearest relative) and in R (on the application of GP) v Derby City Council [2012] EWHC 1451 (Admin) (failure by the AMHP to consult the nearest relative at all before the application under section 3 (see para 5.3.4)) was a writ of habeas corpus.
In Re AR (Habeas Corpus: Medical Recommendation) [2001] EWHC 792 (Admin), although an unsuccessful application on the facts, habeas corpus was accepted as the appropriate remedy in a case where it was alleged that neither of the two RMPs who provided medical recommendations in support of detention had ‘previous acquaintance’ with the patient, as required by section 12(2) of the MHA 1983.
In Barker v Barking, Havering and Brentwood Community Healthcare NHS Trust (Warley Hospital)...
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