R (C) v Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS,LORD JUSTICE JONATHAN PARKER,LORD MUSTILL |
| Judgment Date | 03 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1110 |
| Docket Number | C/01/0022 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 2001 |
[2001] EWCA Civ 1110
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE SCOTT BAKER)
Royal Courts of Justice
Strand
London WC2
The Master of the Rolls
(Lord Phillips)
Lord Justice Jonathan Parker
Lord Mustill
C/01/0022
MR O THOROLD and MR O SIMBLETT (Instructed by Messrs Everett & Co, London, SW16 6JF) appeared on behalf of the Appellant
MISS N LIEVEN (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
LORD PHILLIPS, MR: This appeal raises an important point under the Human Rights Act 1998 ("the HRA") and Article 5(4) of the European Convention on Human Rights ("ECHR") as to the time within which an application to a Mental Health Review Tribunal ("the MHRT") must be heard so as to comply with obligations in Article 5(4), namely that:
"Everyone who is deprived of his 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 and his release ordered if the detention is not lawful."
I shall refer to the appellant as "C" and to the respondent as "the Tribunal".
Scott Baker J refused C's application for judicial review by a judgment delivered on 21 December 2000. Brooke LJ granted permission to appeal against that decision on 27 February 2001. The issue raised in this case was summarised by Scott Baker J as follows.
C was detained under section 3 of the Mental Health Act 1983 ("the MHA") on 16 October 2000. He immediately applied to the Tribunal for discharge and, in accordance with current practice, his case was listed for hearing eight weeks later on 11 December. His submission is that eight weeks is too long a period and is contrary to Article 5(4), which requires the lawfulness of his decision to be decided speedily."
At the time that C applied for judicial review he was compulsorily detained under the MHA. Before his case had come on for hearing he had been discharged. Scott Baker J decided, nonetheless, to hear the application for two reasons:
(i) the application raised a point of public general importance; and
(ii) the point might prove of more than academic interest to C who suffers
from schizophrenia. There is at least a risk that he may find himself again
detained under the MHA in the future.
Brooke LJ gave permission to appeal because he considered that it was appropriate that this court should consider the ECHR point. I agree.
The facts
The facts as found by the judge are not in dispute. C has for a number of years been suffering from schizophrenia, which is known to be a relapsing illness. As well as having been out of hospital for lengthy periods, and at times in hospital on a voluntary basis, he has previously been detained under the 1983 Act. On 15 October 2000 the police were called to Lambeth Council offices where he was causing a disturbance. He was taken to the police station and interviewed by Dr Boocock and a social worker. C's wife was contacted and asked if she would consent to his admission to hospital for treatment, but she refused. C was admitted compulsorily under section 4 of the MHA into the South Western Hospital.
On 16 October an application was made to the county court for C's wife to be displaced as nearest relative. An interim order granting the application was made by a district judge. On the same day, although already in hospital, C was admitted for treatment under section 3 of the MHA and applied to the Tribunal for discharge.
On 17 October C's wife learned of the order displacing her. Two days later she applied for judicial review challenging the legality of that order which should not have been made by a district judge. On 20 October permission was refused on the county court arranging a hearing between the parties. That took place on 23 October when the judge confirmed C's wife's replacement on an interim basis. On 26 October C's solicitors notified the Tribunal of their interest and requested a hearing in advance of the usual eight weeks. This was not granted. On 27 October, in accordance with the general practice, the application was listed for hearing on 11 December, precisely eight weeks after the date on which the application had been made.
On 10 November C was transferred to Cane Hill Hospital. On 21 November the interim order replacing his wife as the nearest relative was discharged. On the same day, the date of the Tribunal hearing was advanced to 1 December to accommodate C's new responsible medical officer ("RMO"). On 24 November Cane Hill staff told C's wife of the intention to move him back to South Western Hospital. She then successfully applied to the Cane Hill Hospital for his discharge from detention pursuant to section 23 of the MHA.
THE LEGAL FRAMEWORK The MHA
The MHA consolidates legislation since the Mental Health Act 1959. The 1959 Act arose out of a Royal Commission lasting from 1954 to 1957 under the chairmanship of Lord Percy. The MHRT arose out of the recommendation in the Royal Commission that in future compulsory admission should be obtainable without prior judicial authority and that a review tribunal be established:
" . to consider the patient's mental condition at the time when it considers his application and to consider whether the type of care which has been provided by the use of compulsory powers is most appropriate to his present needs or whether any alternative form of care might now be more appropriate or whether he could now be discharged from care altogether."
Prior to the implementation of the Mental Health Act 1959, a patient could only be compulsorily detained in hospital if certified under the Lunacy Act 1890; certification was by a magistrate.
Section 3 of the MHA permits a patient to be admitted to hospital for treatment and detained there for the period allowed, which section 21 states is a period not exceeding six months. Section 2 of the MHA permits the admission and detention of a patient in hospital for assessment for a period of up to 28 days. This case is not directly concerned with section 2, but with section 3.
The procedure for the admission of a patient under section 3 is contained in section 11. Essentially, the approved social worker, or nearest relative, each of whom can make the application, must have:
(i) written recommendations from two registered medical practitioners, one
being approved for the purpose (section 3 (3));
(ii) seen the patient to be admitted within the 14 days prior to admission
(section 11(5));
(iii) consulted with the nearest relative and ascertained that the nearest relative
does not object (section 11(4)). Where the nearest relative does object, as in
this case, there is a procedure for displacing the nearest relative under section
, to which I refer below.
The hospital has authority to act on a duly completed application for admission, and to convey and detain the patient there (section 6(1)). Where, as in the present case, an application under section 3 is made in relation to a patient who is already detained under section 4, the provisions of section 3 thereafter prevail (see section 6(4))).
The MHRT subsists by virtue of section 65 of the MHA. By section 65(1A) there is one Tribunal for each region of England. C's case fell within the London South and South West Region.
A patient admitted to hospital compulsorily under either section 2 or section 3 of the MHA has a right to request a Mental Health Review Tribunal hearing under section 66(1) of the MHA. In C's case, by virtue of section 66(2)(b), the right was one which he was entitled to exercise within six months of 16 October 2000, the date of his admission under section 3. If he had failed to request such a hearing within six months, the matter would have had to be referred to the Tribunal by the hospital managers by reason of section 68(1) of the MHA.
The general provisions for the form of a request for hearing are set out at section 77 of the MHA. Section 78 of the MHA permits rules to be made relating to the procedure to be followed by Tribunals.
The Rules
The MHRT Rules 1983, made under section 78 of the MHA, control applications to Mental Health Review Tribunals and the proceedings of those Tribunals. The following rules are of relevance. They apply when an application is made to a Mental Health Review Tribunal.
Rule 6 The responsible authority, for present purposes the manager of the detaining hospital, is required to send a statement to the Tribunal containing prescribed information as soon as practicable and in any event within three weeks of the application. The statement is required to contain certain specified information. This includes (see part B of schedule 1) an up-to-date medical report prepared for the Tribunal, including the relevant medical history and a full report of the patient's medical condition. Other background reports are also required. Production of these other reports within three weeks is required subject to it being reasonably practicable to produce them.
Rule 9 The Tribunal has a limited power of postponement if it is in the interests of the patient.
Rule 11 The medical member of the Tribunal must examine the patient some time before the hearing.
Rule 13 The Tribunal has the power to give directions to ensure the speedy and just determination of the application.
Rule 16 There is a general power for the Tribunal to adjourn...
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