New Tribunal Rights for Section 2 Patients
At the end of 2004 the Appeal Court gave a significant judgment
in the case of R (MH) v The Secretary of State for the
Department of Health  EWCA Civ 1690.
The case concerned Ms MH, a 32-year-old woman with Down’s
Syndrome who lived with her mother, who was her nearest relative.
MH was detained pursuant to Section 2 of the MHA and when her
mother sought to discharge MH from detention, the RMO barred her.
One day before MH’s section was due to expire, an application
was made to displace her mother as nearest relative. Therefore,
under Section 29(4) of MHA, MH would continue to be detained under
Section 2 beyond the usual 28-day period, and at least until the
displacement application had been “finally disposed
of”. MH made two claims, both founded upon the ECHR:-
(i) because she was incapable and could not
make a MHRT application, Article 5 (4) imposed an obligation on the
State to make the Tribunal application on her behalf:
(ii) because there was no provision enabling her
to challenge her continued detention whilst the 29(4) application
was outstanding, section 29(4) breached Article 5(4) .
The High Court dismissed MH’s claims but the Appeal Court
took a very different view.
In relation to the first part of MH’s claim, the Court of
Appeal agreed that Section 2 of MHA 1983 is incompatible with ECHR
Article 5(4) because it does not make provision for the case of an
incapable patient to be referred to a MHRT. Whilst the Secretary
of State could refer the case of an incapable patient to an MHRT,
by virtue of Section 67, this power was discretionary and therefore
did not satisfy the requirements of Article 5(4). A system will
now have to be devised whereby every incapable patient who is
detained under Section 2 of MHA has his/her case considered by a
In relation to the second limb of her claim, the Court of Appeal
also found for MH and made a declaration that because Section 29(4)
MHA does not provide for an application to the MHRT where a
patient’s Section 2 admission is extended beyond 28 days,
Section 29(4) is also incompatible with Article 5(4) ECHR. Such
patients will have to be given the right to apply to a MHRT (and
where they are incapable, their referral to the MHRT will
presumably have to be automatic).
This is the first time two Declarations of Incompatibility have
been made under HRA1998 in the same case. Patients detained
pursuant to Section 2 will have to be assessed in relation to
capacity and where a patient is perceived to be unable to make a
MHRT application they will have to be given assistance to do so.
All patients, whether capable or incapable, detained pursuant to
Section 2 who become involved in a Section 29(4) application will
have to have their detention periodically reviewed by the MHRT in
order to satisfy the requirements of Article 5(4). It is not
necessarily the case that such a patient should be able to apply to
MHRT every four weeks: ECHR authorities suggest that where an
initial review is performed promptly, it will not breach Article
5(4) for subsequent reviews to be slightly less frequent. It may
be that they need to take place once every eight weeks or so.