M.H. v. United Kingdom

The applicant was severely disabled as a result of Down’s Syndrome. The applicant lived with her mother, her nearest relative. She often exhibited difficult behavior and towards the end of 2002 social workers had become extremely concerned about the impact on the physical and mental health of the applicant and her mother.

On 31 January 2003 a social worker executed a warrant from the Magistrates’ Court, entered the applicant’s mother’s premises and took the applicant to a hospital, where she was admitted and detained under section 2 of the Mental Health Act 1983 (the “Act”), which authorized detention for 28 days.

Under the Act, the applicant’s mother had a special status as her “nearest relative”. Utilizing this status, the mother made an order to discharge the applicant; this had no effect as the applicant’s medical officer had issued a “barring report”, certifying the applicant as dangerous to herself and others. The mother was barred from making further orders for 6 months.

Prior to the expiry of the initial 28 day detention period, a social worker lodged an application with the Telford County Court to displace the applicant’s mother as her nearest relative. This application effectuated the automatic extension of the applicant’s detention under section 29(4) of the Act.

The applicant could have applied for discharge to the Mental Health Review Tribunal within a 14-day period while being detained under section 2 of the Act, but did not do so, as she lacked the legal capacity to instruct lawyers. Moreover, once the applicant was being detained under section 29(4) of the Act, there were no means by which the applicant could apply to the Tribunal.  During such time the Mental Health Review Tribunal (the “Tribunal”) could only be requested by the Secretary of State for Health. The applicant’s mother filed such a request on behalf of the applicant as a “litigation friend”, and referral was made to the Tribunal, which refused to discharge the applicant on 26 March 2003.

The applicant was moved to suitable residential accommodation on 21 July 2003 and admitted into guardianship on 7 August 2003, more than six months after the initial detainment.

The applicant filed an action against the Secretary of State for Health and the Tribunal, seeking declarations that sections of the Act were incompatible with Articles 5 § 4 of the European Convention on Human Rights. Article 5 § 4 entitled detained persons to institute proceedings for a review the lawfulness of their deprivation of liberty.

The High Court declined to find the sections of the Human Rights Act to be incompatible with the ECHR, as did the House of Lords on appeal.

When determining whether there had been a breach of Article 5 § 4, the European Human Rights Court broke down the detention into three discrete stages: the first 27 days of the administrative detention ordered to carry out an in-hospital expert assessment; the period from 27 February 2003 until 26 March 2003, when the Tribunal refused to discharge the applicant; and from 26 March 2003 until 21 July 2003, when the applicant was moved into appropriate residential accommodation.

Regarding the first period, the Court stated that the guarantees in the Act did not provide a practical and effective remedy for the applicant as she lacked legal capacity. The first period thus violated Article 5 § 4.

With respect to the second and third periods, the Court found that no violation of Article 5 § 4 had occurred. As regards the second period, the Court determined that, as the hearing took place one month after the applicant’s detention had been extended, there had not been an unreasonably long period where the applicant’s case was without judicial control. Furthermore, the Court noted that the Secretary of State was under a duty to refer the applicant’s case to the Tribunal once a request was made, therefore indicating that the procedure was not impermissibly dependent on the exercise of discretion by  a third party  Similarly, no violation of Article 5 § 4 was found as regards the final period as a mental patient did not have the right to take proceedings against an order of detention issued applying an appropriate judicial period and the time elapsed - from 26 March until 21 July - could not be considered so long as to require further proceedings.

When determining whether there was a breach of Article 14 (freedom from discrimination) due to incapacitated mental patients substantively enjoying different rights under the Act than mental patient with capacity, the Court found that there was no “appearance of a violation of rights and freedoms set out in the Convention or its protocols” and that the matter had already been addressed in response to the Article 5 § 4 complaint.

“The Convention does not oblige applicants, after unsuccessfully attempting the obvious remedy at their disposal, to attempt all other conceivable remedies provided for under national law [...] Neither the applicant nor her mother acting as her nearest relative was able in practice to avail themselves of the normal remedy granted by the 1983 Act to patients detained under section 2 for assessment. That being so, in relation to the initial measure taken by social services depriving her of her liberty, the applicant did not, at the relevant time, before the elucidation of the legal framework by the House of Lords in her case, have the benefit of effective access to a mechanism enabling her to “take proceedings” of the kind guaranteed to her by Article 5 § 4 of the Convention. The special safeguards required under Article 5 § 4 for incompetent mental patients in a position such as hers were lacking in relation to the means available to her to challenge the lawfulness of her “assessment detention” in hospital for a period of up to twenty-eight days.” Para. 86.

“In any event, the fact remains that the applicant’s case was referred to a Tribunal. As a consequence, she was not deprived of the kind of “speedy” judicial review provided for under Article 5 § 4 of the Convention. To that extent, she was personally not a victim of the alleged shortcoming in the British mental health system that she is denouncing in her application. Consequently, even if the Court were to take her arguments at their strongest, her complaint would have to be rejected on the ground that she could not claim to be a victim within the meaning of Article 34 of the Convention.” Para. 96.