Delays in hearings before the mental health review tribunal
breached the patients’ rights to speedy hearings under article 5 of
the European Convention on Human Rights, as set out in the Human
Rights Act 1998 (HRA). That was the view of Mr Justice Stanley
Burnton in the administrative court on 23 April 2002 in the case of
R v Mental Health Review Tribunal and Secretary of State for
Health, ex parte KB and 6 Others.
The seven were patients detained under the Mental Health Act
1983. In each case the hearing arranged by the mental health review
tribunal (MHRT) to review their detention was repeatedly adjourned.
Also, the move to placing patients in smaller units had led to the
need for more MHRTs being convened; over the last 10 years the
delays had increased and there was a shortage of consultant
psychiatrists to sit on the tribunals.
The patients said that the delays:
(i) were unjustified and detrimental
(ii) breached article 5(4) of the European Convention on Human
(iii) were typical and illustrated the systemic inadequacies and
inefficiencies in the administration of the tribunal system and
(iv) denied them their absolute right to a speedy hearing which
the state was obliged to provide.
Allowing the appeal, the judge held as follows.
(1) The fact that a patient’s case was unlikely to succeed
should not remove his right to a speedy hearing.
(2) Although normally questions of financial policy fell within
the executive’s sphere of activity (and not the court’s), when
article 5* or article 6** issues arose, the court could assess the
adequacy of resources and the effectiveness of administration. It
must consider whether the requirement of a speedy hearing had been
breached and if so, the secretary of state for health must then
prove that the delay was justifiable.
(3) In all the cases here, article 5(4) had indeed been
breached. The secretary of state should not be surprised by the
delays. Some of the increase in the number of MHRT applications had
been unsurprising for reasons well known, such as the move to
smaller hospitals and the policy of ‘care in the community’.
(4) The basic responsibility for the delays experienced by
patients was that of central government, to the extent that the
failure to provide speedy hearings was due to staff shortages or
the pressure of work on staff.
Comment: This case has grave implications for the government.
Quite clearly the courts will not allow the executive to ‘not
deliver’ when the right to challenge a detention or have a fair
trial is at stake. Many psychiatric patients have to wait a long
time for an MHRT. This judgement clearly says that that situation
is unsatisfactory and cannot be allowed to continue. It will be
interesting to see what the government decide to do next. Will they
reform the tribunal system, staff it properly or appeal to the
court of appeal in the hope that their arguments about resources
receive a more sympathetic ear?
*Article 5(4) says “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”.**Article 6 sets out in detail the right to a fair trial
including “everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law”.
Human Rights Solicitor