Regina (on the application of H) v. Secretary of State for the Home Department

H, a young woman who suffered from Down’s syndrome and was severely mentally disabled, lived with her mother, BL, who was deeply distrustful of the health authorities. When her BL fell ill and H’s behaviour became increasingly disturbed H was formally admitted to hospital for assessment under section 2 (allowing mandatory commitment for mentally ill patients in certain circumstances) of the Mental Health Act 1983 (the “1983 Act”).

BL tried to discharge H, but the doctors, concerned that H would harm herself or others, refused the discharge. BL also objected to a plan wherein H would be received into guardianship. The authorities, concerned that BL was not acting in H’s best interests, applied to the local country court in an attempt to appoint an “acting nearest relative” under section 29 of the 1983 Act. The county court took over two years to finally dispose of the case but issued an interim order for H to be received into guardianship.   At the time of the Court hearing, H’s condition had improved and she was still under the guardianship of the local authority.

A patient kept waiting under section 29(4) of the 1983 Act, as was H, did not enjoy certain rights of review available to patients held compulsorily under other sections of the 1983 Act.  However, upon request by BL, the Secretary of State referred H’s case to the mental health review tribunal. The tribunal decided not to discharge H.

In May 2003, H nominally brought judicial review proceedings, with BL acting as her litigation friend (who was then replaced by the Official Solicitor).  H challenged whether the 1983 Act was compatible with Article 5(4) (entitling anyone deprived of liberty to speedy court proceedings determining the lawfulness of the detention) of the European Convention on Human Rights (the “Convention”) in two respects: (1) whether the law provided an effective right of access to a court for a patient lacking the capacity to apply to a tribunal by herself; and (2) whether the law provided a right of review at reasonable intervals for a patient detained under section 29(4) of the 1983 Act.

The Court of Appeals declared that the 1983 Act was incompatible with the Article 5(4) of the Convention in that it didn’t contain appropriate provisions for a patient (a) who, detained under section 2 of the 1983 Act, had the right to apply to a mental health review tribunal but lacked the capacity to do so; and (b) whose period of detention was extended under section 29(4) of the 1983 Act.

The Court held that neither section 2 nor section 29(4) of the 1983 Act was incompatible with Article 5(4) of the Convention. In reviewing the legislation, the Court found that the means existed within the challenged sections for the legislation to be compatible with the patient’s rights under Article 5(4) of the Convention.

In considering whether section 2 of the 1983 Act provided a practical and effective right of access to a court for a detained patient lacking the capacity to appeal to the mental health review tribunal, the Court held that there were sufficient mechanisms within the legislation to protect patients lacking capacity. The Court first noted that Article 5(4) required that a detained person have the right to “take proceedings”, not necessarily that each case should be considered by a court, and that such right meant that a “very sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so.” (Para. 23). The Court noted that the legislation required that patients and nearest relatives be effectively informed on how to access the tribunal, that the tribunals we4re designed to be user-friendly, and that others could apply to the tribunal on behalf of the patient.

In considering whether section 29 provided the right of review for detained patients at reasonable intervals, the Court noted that “the problem arises when the county court proceedings drag on and the patient is detained indefinitely without recourse to a tribunal.” (Para 29) However, the Court determined that there were already means within the existing law of ensuring that a patient have avail herself of the right to an early tribunal hearing.

“23. For them, the argument is that a right "to take proceedings" is ineffective if the patient lacks the ability to do so. Given that the Convention is there to secure rights that are "practical and effective" rather than "theoretical and illusory" this is a powerful argument. But it does not lead to the conclusion that section 2 is in itself incompatible with the Convention or that the solution is to require a reference in every case. Rather, it leads to the conclusion that every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so.”

” 29 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.”