R (H) v Secretary of State for Health & Mental Health Review Tribunal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Wall,Mr Justice Lindsay |
| Judgment Date | 03 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1609 |
| Docket Number | Case No: C3/2004/0373 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 December 2004 |
[2004] EWCA Civ 1609
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMNISTRATIVE COURT
(THE HONOURABLE MR JUSTICE SILBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Wall
Mr Justice Lindsay
Case No: C3/2004/0373
Mr Paul Bowen instructed by Messrs Elliott Bridgman for the Appellant)
Mr Timothy Morshead (instructed by Treasury Solicitor for the Respondent)
This appeal concerns the compatibility with article 5 of the European Convention on Human Rights [the ECHR] of various arrangements made by the Mental Health Act 1983 [the 1983 Act] for dealing with persons with mental disorder.
The statutory structure
No issue arises as to the construction of the 1983 Act, so it will be sufficient to describe its relevant provisions in summary form.
• Section 2 provides for the admission and detention for assessment of a person on the ground that he is suffering from mental disorder of a nature warranting such detention, and that he needs to be detained in the interests of the health or safety of himself or others. By section 2(4), such detention can only last for 28 days
• Section 3 provides for the compulsory detention of a person for treatment, for a period of initally up to six months
• Section 7 provides for the making of a guardianship order in respect of a person suffering from mental disorder
• In all of the foregoing cases, section 66 permits the patient to make an application for the discharge of the order to a Mental Health Review Tribunal [MHRT]
• Additionally, an order for discharge from a section 2 detention may be made either by the hospital authorities or by the patient's nearest relative (section 23). However, the patient's responsible medical officer [RMO] may make what is colloquially called a barring order preventing a discharge by the nearest relative if he thinks that the patient if discharged would be liable to be a danger to himself or to others (section 25)
• Under section 29 an authorised social worker may apply to the County Court for the removal of the nearest relative from the performance of his functions under the Act, inter alia if he considers that the nearest relative is unreasonably failing to agree to a guardianship order. When such an application is made, the 28 day period under section 2(4) is, by section 29(4), extended automatically until the proceedings have been finally disposed of.
The case of MH
MH is 32 years of age, and has the misfortune to suffer from Down's Syndrome. Until comparatively recently she lived at home with her mother, her nearest relative, but on 31 January 2003 she was admitted to detention under section 2. Shortly thereafter the mother sought a section 23 discharge, but MH's RMO issued a barring order under section 25. The section 2 order was to expire automatically on 28 February 2003, but on 27 February 2003 a section 29 application was made to the Telford County Court to displace the mother as nearest relative. By section 29(4), therefore, MH remained subject to detention under the section 2 order.
When the present application came before Silber J, in January 2004, he was very surprised indeed to find that still no date had been fixed for the hearing of the section 29 application that had been made eleven months previously. We may add that that history of delay has been extended, in that even at the date of this judgment, some 20 months after the section 29 application, those proceedings still have not been "finally disposed of" for the purposes of section 29(4), because the nearest relative has appealed to this court against the decision of the County Court judge. In the meantime, however, the local authority had succeeded in finding suitable accommodation for MH other than in the psychiatric hospital to which she had been admitted only for a 28 day assessment, and MH moved to that accommodation on 21 July 2003. On 7 August 2003 a guardianship order was made in respect of her. That order now authorises her continued restriction.
MH makes two complaints. First, her disability is sufficiently serious for her to have been unable either herself to make an application to the MHRT in respect of the section 2 detention, or to authorise others to make an application on her behalf. Second, because of what she contends is the adventitious fact of the application under section 29 she has been detained under section 2 very well beyond the normal period of 28 days. The first complaint affects the interests of all patients suffering from a disability as serious as that of MH. The second complaint potentially affects all persons in respect of whom a section 2 detention is prolonged under section 29(4). It was for those reasons that Silber J accepted, and with respect was right to accept, that the proceedings should not be stayed because MH herself has long ago passed out of the ambit of section 2. It was for those reasons that this court gave permission to appeal from Silber J's rejection of MH's application on its merits. And, quite apart from the general importance of the issues, MH was by the operation of the statutory scheme kept for over six months in a form of detention that the statute itself assumes to require only 28 days to fulfil its statutory purposes.
The issue in this appeal
The objections to the statutory scheme have already been indicated in outline. They are
• A competent section 2 patient has access to the MHRT, whereas an incompetent patient such as MH does not
• Section 29(4) may extend a section 2 detention for many months after the expiry of its statutory term, and neither the competent nor the incompetent patient has any recourse to the MHRT in respect of that extension
These, however, are the express and intended rules of a statutory scheme. If MH is going to displace them, her only recourse is under ECHR; but there are serious difficulties in applying the jurisprudence, and more particularly the detailed wording, of the relevant article, article 5, to the facts of the present case.
Before turning to those difficulties, however, I must address the judgment below of Silber J, who in a detailed and if I may say so careful review of the available authority found himself unable to afford MH any relief. Some part of the judge's reasoning addressed the article 5 difficulty that I have mentioned in paragraph 6 above, and to which I return below. The judge was, however, also persuaded that aspects of the statutory scheme provided the patient with sufficient protection for ECHR purposes even though her right to recourse to the MHRT was limited, or in practice non-existent. These considerations were, in respect of access to the MHRT in respect of the initial detention under section 2the automatic expiry of that detention after 28 days; and in respect of the section 29(4) extension the fact that it was supervised, at least indirectly, by the County Court. I am not persuaded on either of those points, which I deal with in turn.
Automatic release after 28 days
The judge, at his paragraph 36, accepted the argument of the Secretary of State that automatic discharge at the end of the 28 day period (absent, of course, a section 29 application) was a better safeguard for the patient than an "automatic review". The latter expression reverts to the jurisprudence of article 5, and I shall have to come back to it. The problem about the argument at this stage is, however, that it does not address the imbalance between the competent patient, who can apply to the MHRT under section 66 within 14 days of his detention, and the incompetent patient who, because he is not mentally able to make or promote such an application, has no recourse to an outside body: except through the agency of the nearest relative, who can be, and in this case was, barred under section 25. If the 28 day limit is a sufficient safeguard in the case of incompetent patient, why is it not so in the case of the competent? Why in his case is recourse to the MHRT given at all? And, further, even a 28 day period of detention without review by a judicial body at least raises questions under the ECHR. Whilst I would agree that no rule of thumb can be laid down either in respect of detention generally or in respect of particular categories of detention, nevertheless it is impossible to say that the ECHR organs neither could have nor should have any concern about a 28 day detention without judicial review.
Mr Bowen, for MH, added a further point. The incompetent patient will not be able to apply to the MHRT in respect of a section 3 detention any more than he will in respect of a section 2 detention. The initial span of a section 3 detention is six months, not 28 days. An argument that there also lack of access to a judicial tribunal is offset by the limited time-span of the initial order would not seem to be very promising.
County Court supervision
The context of section 29 proceedings is not directly the interests of the patient, but rather issues as to the suitability of her nearest relative. The patient has no locus within them except as a witness in the contest between the referring social worker and the nearest relative. The judge pointed out, in his paragraph 54, that wherever the patient remains in detention during section 29 proceedings that will be because, as in the present case, the RMO has issued a barring order to a section 23 application by the nearest relative because the patient is likely to act in a manner dangerous to other persons or to himself. While I see the force of...
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