R (on the application of H) v. Secretary of State for Health

H challenged the provision of the Mental Health Act 1983 under which she was detained as incompatible with her right to liberty and security under Human Rights Act 1998.

H was a 32-year old woman who was severely disabled by Down’s syndrome. H’s mother intensely distrusted health and social services, and refused on many occasions to allow her daughter to receive mental health treatment.  After H’s mother fell ill and H began showing increasing signs of disturbed behaviour, H was admitted to hospital for assessment and detained there under s 2 of the Mental Health Act 1983 (the Act), which authorized the temporary detention of a patient suffering from a mental disorder for their own or others’ protection.

H had a right under s 66 of the Act to apply to a mental health review tribunal for a discharge. However, because of her disability, H was unable to exercise this right. H’s mother, as her nearest relative, attempted to discharge her from the hospital, but was prevented from doing so, as the responsible medical officer felt that to discharge H would be dangerous to H or others. The authorities sought an order from the County Court to appoint a social worker as H’s ‘acting nearest relative’ for the duration of her treatment, and H was detained while this procedure was ongoing. The County Court took longer than usual to conclude these proceedings, and as a result, H’s detention was automatically extended under s 29(4) of the Act.

At the mother’s request the Secretary of State referred H’s case to a tribunal, which declined to discharge her. In judicial review proceedings, H sought, among other remedies, declarations of incompatibility stating that the scheme of the 1983 Act was incompatible with her right to take proceedings to decide speedily the lawfulness of her detention under article 5(4) of the European Convention on Human Rights (ECHR), scheduled to the Human Rights Act 1998. The Court of Appeal issued two declarations of incompatibility under the Human Rights Act 1998 stating that s 2 and 29(4) of the 1983 Act were incompatible with article 5(4) of the ECHR. The Secretary appealed.

The Court found that ss 2 and 29(4) of the Act did not violate article 5(4) of the ECHR. Article 5(4) of the ECHR required that a detained patient have the ability to take proceedings to bring a case before a tribunal for review. It did not require that every admission be reviewable before a tribunal. In the case of patients without mental capacity, it was enough that someone could make an application for review on the patient’s behalf. This had occurred in this case with H’s mother.

Likewise, it was possible to exercise 29(4) of the Act compatibly with article 5(4). First, the initial hearing before the County Court would ordinarily be concluded quickly. In circumstances where it was not, the Secretary of State was obliged to act compatibly with the patient’s ECHR rights, and could refer the case to a mental health tribunal, as occurred in this case. Finally, as a last resort, judicial review was available. As such, although the powers under the Act could be exercised incompatibly with ECHR rights, the legislation itself was consistent with the ECHR.

The declarations of incompatibility made by the Court of Appeal were set aside.

“Even if the patient's nearest relative has no independent right of application, there is much that she, or other concerned members of the family, friends or professionals, can do to help put the patient's case before a judicial authority. The history of this case is a good illustration. The patient's mother was able to challenge every important decision affecting her daughter. Most helpfully, she stimulated the Secretary of State's reference to the tribunal very quickly after it became clear that her daughter was to be kept in hospital longer than 28 days. Had H been discharged once the 28 days were up there would, in my view, have been no violation of her rights under article 5(4). It follows that section 2 of the Act is not incompatible with article 5(4).” Para. 27.

“The problem arises when the county court proceedings drag on and the patient is detained indefinitely without recourse to a tribunal. Indeed, it may be difficult for the county court to proceed too quickly, without endangering the rights of the parties under article 6 and the rights of both the patient and her relative under article 8. Hence there may well come a time when her article 5(4) rights will be violated unless some means of taking proceedings is available to her. That time may come earlier if she has not made an initial application, so that the lawfulness of her detention has never been subject to judicial determination, than it would do if there had been an early tribunal hearing. But here again the means are available, within the existing law, of securing that she does have that right.” Para. 29.

“Hence, while judicial review and/or habeas corpus may be one way of securing compliance with the patient's article 5(4) rights, this would be much more satisfactorily achieved either by a speedy determination of the county court proceedings or by a Secretary of State's reference under section 67. Either way, however, the means exist of operating section 29(4) in a way which is compatible with the patient's rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.” Para. 32.