Legal Updates

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 [2004] 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 MHRT.

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.

Adam Hartrick
Solicitor
Hempsons Solicitors