Appeal court rules detained patients can make challenge on human rights grounds

Key sections of the mental health laws of England and Wales are
incompatible with human rights, the court of appeal has ruled. In
the case of The Queen (on the application of H) v Mental Health
Review Tribunal, North and East London Region and Secretary of
State for Health held on 28 March, this important judgement will
lead to the consideration of release for dozens of mentally
disordered offenders from Broadmoor and other high security
hospitals in the United Kingdom.

Section 73 of the Mental Health Act (MHA) in effect placed the
burden of proof on a restricted patient to show that he or she was
no longer suffering from a mental disorder warranting detention.
The court of appeal said that this was not compatible with the
European Convention on Human Rights (ECHR).

How does this affect the social work profession? If you work
with people ordered to be detained in a high security hospital
under sections 37 and 41 of the MHA, then you need to know about
this case.

Mr H (who reportedly suffers from paranoid schizophrenia) was
convicted of manslaughter in 1988, and the trial judge ordered him
to be detained in a hospital and to be subject to special
restrictions pursuant to sections 37 and 41 of the MHA, following
which he was admitted to Broadmoor Hospital.

In 1999 Mr H applied to the Mental Health Review Tribunal (MHRT)
for a discharge under section 73 of the MHA. The MHRT decided that
he should not be discharged. His application for judicial review of
the tribunal’s decision was refused. The secretary of state
intervened when the matter came before the court of appeal where
the only point in issue was whether section 73 was compatible with
the ECHR.

Article 5 of the convention provides that no-one shall be
deprived of his liberty, with certain exceptions, including the
lawful detention of persons of unsound mind. Article 5(4) further
provides that everyone who is deprived of his liberty shall be
entitled to take proceedings by which the lawfulness of his
detention shall be decided by a court and his release ordered if
the detention is not lawful.

The essential question was the nature of the test to be applied
when determining a patient’s entitlement to release – (a) did
the tribunal have to be satisfied that each of the criteria in
section 73 was made out or was the patient entitled to release if
one (or more) of the criteria was NOT made out? Mr H said that the
burden of proof should be on the hospital authorities not on him,
and that he should be entitled to release if the hospital
authorities could not demonstrate that the criteria were

The court accepted that it is contrary to the convention to
detain a patient compulsorily unless it could be reliably shown
that the patient was suffering from a mental disorder that
warranted detention. The court therefore made a declaration of

The effect of a declaration of incompatibility is to
‘prompt’ the government by declaring that an act of
parliament exists which is not capable of being read compatibly
with the convention rights. Whether the government acts on this
‘prompt’ is up to them. There is no timescale in the
act for it to react within. In the case of the first declaration of
incompatibility (concerning a planning law point) the government
has taken the case to the House of Lords, where judgement is
awaited in about six weeks.

It is not known what the government will do in Mr H’s case
as it was refused permission by the court of appeal to go to the
House of Lords (although there is another mechanism it can use to
try to get there). It is not clear what guidance the secretary of
state and the MHRTs are going to issue in the light of this
judgement, but workers who have to deal with other people detained
in the same situation as Mr H need to know what they should be
doing, to be compliant with the convention. The next step is one
for the government to take.

Bernadette Livesey

Walker Morris Solicitors



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