R (Elham Modaresi) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Wilson,Lord Sumption,Lord Carnwath,Lord Neuberger |
| Judgment Date | 24 July 2013 |
| Neutral Citation | [2013] UKSC 53 |
| Date | 24 July 2013 |
| Court | Supreme Court |
[2013] UKSC 53
Lord Neuberger, President
Lady Hale
Lord Wilson
Lord Sumption
Lord Carnwath
Appellant
Richard Gordon QC
Matthew Stockwell
(Instructed by Peter Edwards Law)
Respondent
James Eadie QC
Paul Greatorex
(Instructed by Treasury Solicitors)
Heard on 19 June 2013
Lord Carnwath ( with whom Lord Neuberger, Lord Wilson and Lord Sumption agree)
This appeal arises out of an unfortunate but isolated oversight in the offices of the West London Mental Health NHS Trust. It occurred over the New Year period at the end of 2010. The consequences have long since ceased to have any practical significance for any of the parties. No relief, financial or otherwise, is now sought in these proceedings against the trust itself. The appeal has been pursued to this court solely against the Secretary of State, on the basis that it raises a question of general importance.
That question is formulated by Mr Gordon QC, in his printed case as follows:
"As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 ' HRA' can the Secretary of State for Health 'the S/S' lawfully refuse to refer a patient's case to the First-tier Mental Health Review Tribunal 'MHRT' under section 67(1) of the Mental Health Act 1983 'MHA' in circumstances where the MHRT has unlawfully declined to hear that patient's application to it under section 66(1)-(2) and where the patient requests that there be a section 67(1) referral?"
The facts can be shortly stated. Mrs Modaresi, who suffers from schizophrenia, was admitted to hospital on 20 December 2010 for assessment under section 2 of the Mental Health Act 1983, which permits detention for a limited period not exceeding 28 days. By section 66(1)(a) she had a right to apply to the First-tier Tribunal within 14 days to review her detention and if appropriate obtain an order for her discharge. Under the rules applying to an application under section 66(1)(a), the tribunal would have been obliged to arrange a hearing within seven days of receiving the application ( SI 2008/2699, rule 37(1)).
On the afternoon of 31 December 2010 she gave a completed application form to a member of staff on her ward, who faxed it to the appropriate office of the trust. Unfortunately, the relevant administrator was out of the office that day and the form was not seen by others in the office. The office was closed over the New Year holiday until 4 January 2011, when the form was found and faxed immediately to the tribunal. Officials in the tribunal's office determined that it was out of time, and they wrote to her solicitors to that effect on 5 January. That letter was received by the solicitors on 7 January 2011. On the preceding day Mrs Modaresi's status had changed. She had ceased to be detained for assessment under section 2, but instead became detained for treatment under section 3. As such she was entitled to make a separate application to the tribunal under section 66(1)(b). Under that provision there is no specific time limit for holding the hearing.
Her solicitors wrote immediately to the Secretary of State asking him to exercise his discretion to refer the case to the tribunal under section 67. They referred to her detention under section 2. They explained that she had completed the application form to the tribunal within the 14 day time limit, but that as a result of the bank holiday weekend it had not been faxed to the tribunal until 4 January, "which was then outside the 14 day time limit", and that it had been rejected by the tribunal as invalid. The application to the Secretary of State was made on the basis that this had come about "through absolutely no fault of our client", and "due to no procedures being in place at the hospital for applications to be submitted when no Mental Health Act administrator is on duty". Of her change of status the letter said:
"While our client is now detained under section 3 and therefore is eligible to submit a new application for a First-tier Tribunal, to do this would deprive our client of her hearing to which she was entitled as a section 2 patient. Should the Secretary of State agree to make the requested referral, this will ensure that our client will retain her right of application under section 3 in due course."
The Secretary of State replied on 10 January, declining to make a reference under section 67. This is the decision now under review. According to the letter, it was not thought that a reference must "invariably" be made where a patient has failed to exercise her right to apply for a hearing within 14 days:
"The 14 day limit exists for a purpose. The Act makes no special provision for public or bank holidays or other non-working days."
The letter noted, without disagreement, the claim that the time limit had been missed due to the lack of appropriate arrangements within the trust. However the Secretary of State "having considered all the information before him" had decided not to exercise his power to refer:
"In reaching his decision, he took into account that as Ms Modaresi is now detained under section 3 of the Act, she can make her own application to the First-tier Tribunal. In the event that Ms Modaresi did not make an application, the hospital managers would have to make a reference under section 68 of the Act as of 20 June 2011, when Ms Modaresi would have been detained under the MHA for more than six months.
However, should Ms Modaresi make an application to the First-tier Tribunal and the tribunal panel were to uphold her detention under the Act, the Secretary of State would consider any further request for a section 67 reference submitted during her current period of detention."
Mrs Modaresi did not take up that suggestion. Instead, on 17 January 2011, she began proceedings for judicial review against the three agencies concerned: against the tribunal for unlawfully declining to entertain her application as out of time; against the Secretary of State for unlawfully declining to refer her case to the tribunal under section 67; and against the trust for its failure to have in place "lawful arrangements… so as to comply with the requirements of article 5(4) European Convention on Human Rights".
On 26 January 2011 Cox J granted permission to apply for judicial review, following which, on 1 February 2011, the Secretary of State reconsidered his position and made a referral under section 67 as requested. Before the application was heard by the tribunal, on 18 February 2011 she became the subject of a Community Treatment Order, with the result that her detention came to an end.
She nonetheless pursued her claim for judicial review. It was heard by Edwards-Stuart J on 22 February 2011 and dismissed for reasons given in a judgment dated 3 March 2011. He held in summary that the tribunal had been correct to treat the original application as out of time; that the Secretary of State's decision was neither unreasonable nor in breach of her rights under the Convention; and that an isolated failure by the trust did not give rise to a breach of article 5(4).
Her appeal to the Court of Appeal was dismissed on 23 November 2011, for reasons given by Black LJ, with whom the other members of the court agreed. By that time attention had been drawn by the court itself to the decision of the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276, dealing with the latitude to be allowed where time for service expires on a bank holiday. Following that authority, the court held that the application to the tribunal should have been treated by it as in time (as indeed is now common ground). The claim against the trust accordingly failed, as its oversight had not resulted in the deadline being missed. The claim against the Secretary of State was also dismissed. Black LJ held that he had been under no separate duty to check the time limit for himself, no doubt having been raised on that point in the solicitors' letter. In relation to article 5(4) the only suggested disadvantage of her right to apply under section 3, as compared to section 2, was the potential loss of the right to make a further application within six months, which had been properly addressed in the Secretary of State's offer to reconsider the use of section 67 in the future.
Sections 2 and 3 come within Part II of the Act, headed "Compulsory admission to hospital and guardianship". Section 66(1)(a) and (b) provide, respectively, for applications to the First-tier Tribunal on admission to hospital for either assessment (under section 2) or treatment (under section 3). Section 72 requires the tribunal to direct the discharge of the patient if not satisfied that the detention is justified under the criteria there set out. Procedure is governed by rules made under the Tribunals, Courts and Enforcement Act 2007. By section 11 of that Act, a decision of the First-tier Tribunal is subject to a right of appeal, with permission, to the Upper Tribunal. Alternatively, the tribunal may review its own decision, if for example a clear error has been made (section 9; for the practice see R (RB) v First-tier Tribunal [2010] UKUT 160 (AAC)).
It is unnecessary to set out the relevant provisions in detail, since there is no issue about their effect in this case. In particular it is not in dispute (i) that, even if the Secretary of State had agreed to refer the application on 10 January, the seven day limit would have had no direct application, and the timing of the hearing would have been in the discretion of the tribunal; (ii) that the application would have been heard in accordance with the...
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