Legal Updates

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 Rights

(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".

Bernadette Livesey

Human Rights Solicitor

Walker Morris