Mental Health Act 1983
| Published date | 01 December 2006 |
| Date | 01 December 2006 |
| Pages | 36-40 |
| DOI | https://doi.org/10.1108/13619322200600041 |
| Author | Ashley Irons |
| Subject Matter | Health & social care |
Mental Health Act 1983
Ashley Irons
Mental Health Law Partner
Capsticks Solicitors
Legal Update
1. Managers’ decision reversed
RvHuntercoombe Maidenhead Hospital and others
ex p SR (21.09.05)
Unusually, here, patient R challenged a hospital
manager’s decision to order discharge. The Court
agreed as the managers had failed to properly consider
the RMO’s evidence, that upon discharge, R was
likely to be a danger to herself and others.
R, at 15, suffered bi-polar disorder with psychotic
symptoms and was detained under s.3. The managers
held that R met the detention criteria, but were not
satisfied that the Code of Practice at 23.12 (a stringent
test) was met. The Court held there was ample
evidence to support the RMO’s opinion which should
have been given greater weight by the managers.
2. Extending s.2
Secretary of State for Health v MH – House of Lords
(20.10.05)
In the fourth mental health case to reach the Lords in
2005, the Court was asked to consider the position of a
patient who continued to be detained under s.2 due to
lengthy delays concerning County Court proceedings
to appoint a Nearest Relative under s.29. This meant
that M, severely mentally disabled, was detained far
beyond 28 days.
Although an MHRThad taken place (M’smother
having asked the Secretary of State to refer it) she still
challenged the compatibility, with Article 5 of the
European Convention of Human Rights (ECHR), of
such delays preventing her from having an MHRT
earlier.
Readers will not be surprised to hear that the
Lords found that s.2 was compatible with the
Convention. There was a mechanism for such cases to
be referred to an MHRT and that is exactly what
occurred here, as the mother made this request of the
Secretary of State under s.67.
The Lords said that long delays after requesting a
referral might lead to a successful challenge if the
authorities were at fault.
3. Treatability error
RvMHRT & BR (10.11.05)
Bargued that he had an untreatable personality
disorder and was entitled to an absolute discharge.
The MHRT agreed but their decision was set aside by
the High Court. They had failed to even consider
s.72.1(b) – ‘…whether it was appropriate for B to remain
liable to be recalled to hospital for further treatment’.
As recall was an essential matter to consider, the
case was sent back to a different Tribunal as there had
been no finding by the Tribunal that if his mental
disorder ‘recurred’, it would be untreatable. This
therefore requires MHRTsto consider the ‘nature’ test
much morecarefully when looking at future risk.
4. No bias At MHRT
RvMHRT ex p M (7.12.05)
M, detained under s.37/41, challenged an MHRT
refusal to discharge, because the Tribunal president
was the sentencing judge in the Crown Court.
The Courtheld that his application was severely
weakened because, although he recognised the judge
straightaway and raised it with his solicitor, he had
declined to instruct him to request an adjournment.
Secondly, the legal test is ‘whether a fair-minded and
informed observer, having considered the relevant facts,
would conclude that therewas a real possibility of bias’.
There was not and the Court noted that the Tribunal’s
task was to consider M’s mental state at the present
time. The judge barely had any recollection of
sentencing M.
This is the second case where bias was alleged;
the previous concerned the medical member.
36 The Mental Health Review Volume 11 Issue 4 December 2006 ©Pavilion Jour nals (Brighton) Limited 2006
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