Category

Displacement

Case and summary Date added Categories
MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94(1) The ECtHR considered this case, which involved a patient lacking capacity to apply to the tribunal, in three separate stages: (a) The first 27 days of detention under s2. With some emergency detentions a habeas corpus application might be a sufficient remedy, but with this one it would have been wholly unreasonable to expect such an application. Additionally, it would not have been reasonable to expect her nearest relative via solicitors to request a tribunal reference from the Secretary of State. Therefore, neither the patient nor her nearest relative were able in practice to avail themselves of the normal remedy granted by the 1983 Act because the special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking. There was a violation of Article 5(4). The necessary special safeguards 'may well include empowering or even requiring some other person or authority to act on the patient’s behalf' (i.e. referring the case to the tribunal). (b) The period between the extension of s2 by s29 displacement proceedings and the tribunal's decision not to discharge. The Secretary of State, in circumstances where refusal would prevent a speedy judicial decision, has no discretion but is under a duty to make a tribunal reference. In this case: (i) there was such a tribunal within a month, which was not an unreasonably long period; and (ii) the fact that there was a tribunal meant that the patient was not a victim of the alleged shortcoming in the mental health system. There was no Article 5 breach. The situation of a patient without a nearest relative willing and able, through solicitors, to seek a reference was raised by the court but not considered. (c) The period between the tribunal decision and the patient's move from hospital. During this period, the legal basis of detention was no longer s29 but was the tribunal's judicial decision not to discharge. A judicial decision does not endure eternally, so a patient detained for an indefinite or lengthy period is subsequently entitled to take proceedings at reasonable intervals, but the four-month period in this case was not sufficient to breach Article 5. (2) No claim for just satisfaction was made so no compensation was ordered. (3) Legal costs were reduced to €5250 from the €5825.06 sought. 2013‑10‑23 23:44:21 2013 cases, Brief summary, Displacement, ECHR, Transcript


Massie v H [2011] EWCA Civ 115The general rule is that an appeal shall lie from a decision of a county court to the High Court. One exception is for final decisions in Part 7 CPR multi-track cases, which go to the Court of Appeal. (1) This exception does not apply in nearest relative displacement cases under s29 MHA as the application is made under Part 8 CPR; no other exception applied. (2) The court declared that it lacked jurisdiction and that a previous consent order was therefore a nullity. (3) Because of the passage of time and costs involved, rather than abandon the matter or simply transfer it to the High Court, the case was transferred to the High Court for one of the Court of Appeal judges to consider it as a High Court judge there and then. 2011‑02‑17 23:12:22 2011 cases, Brief summary, Displacement, Missing from Bailii, Transcript


R (B) v Uxbridge County Court [2000] EWHC 641 (Admin) — Unsuccessful appeal against s29 displacement order. 2009‑04‑11 21:27:54 2000 cases, Displacement, No summary, Transcript


Nora McClelland v Simon S [2000] EWCA Civ 3028 — Unsuccessful appeal against s29 displacement order. 2009‑04‑11 21:26:25 2000 cases, Displacement, No summary, Transcript


Smirek v Williams [2000] EWCA Civ 3025 — Unsuccessful appeal against displacement order under s29. 2009‑04‑11 20:53:53 2000 cases, Displacement, No summary, Transcript


R (AX London) v Central London County Court [1999] EWCA Civ 988The county court can, on an ex parte application, make an interim displacement order under s29; it is lawful to detain a patient under s3 on the basis of it, although unless there are cogent reasons it is preferable to wait until the final order; even if the order had been declared invalid, the decision to admit the patient would still be valid. 2009‑04‑11 19:55:16 1999 cases, Brief summary, Displacement, MHLR summary, Transcript


Merrill v Herefordshire District Council [1999] EWCA Civ 1976It had been within the judge’s discretion not to adjourn displacement proceedings involving a nearest relative alleged to be mentally incapable of acting as nearest relative who sought an adjournment in order to obtain legal representation; and the displacement order was open to the judge on the evidence. It was suggested that the displaced nearest relative had no right to apply to the Mental Health Review Tribunal. [MHLR.] 2009‑04‑11 19:26:45 1999 cases, Brief summary, Displacement, MHLR summary, Transcript


Manchester City Council v Ingram [1999] EWCA Civ 1689The test for the displacement of a nearest relative is objective; the Court of Appeal will not interfere with factual findings that were open to the trial judge. [MHLR.] 2009‑04‑11 19:24:50 1999 cases, Brief summary, Displacement, MHLR summary, Transcript


FC v UK (1999) 37344/97 [1999] ECHR 184The applicant complained under Article 8 of the Convention that her adoptive father (whom she claims sexually abused her) automatically became her nearest relative under s26, that he consequently had access to personal information about her (including her treatment and whereabouts) and that she was not entitled to apply to have someone else act as her nearest relative; the case was struck out of the list by way of a friendly settlement on the basis that the government would change the law. 2009‑04‑09 22:47:08 1999 cases, Brief summary, Displacement, MHLR summary, Transcript


Re Whitbread (No 2) (Habeas Corpus: Continued Detention) [1999] EWHC Admin 2(1) The duty to discharge under s72 following a Tribunal decision to discharge on a future date is subject to s29(4) which provides a further basis for detention during displacement proceedings; (2) The managers' reasons for upholding the RMO's barring certificate were adequate. 2009‑03‑15 17:34:21 1999 cases, Brief summary, Displacement, MHLR summary, Transcript


R (M) v Homerton University Hospital NHS Trust [2008] EWCA Civ 197The patient, whose s2 had been extended during s29 displacement proceedings, was detained under s3 following an interim displacement order but before any final determination. Detention under s2 and s3 could run concurrently in these circumstances and it was not arguable that the s3 detention was unlawful. No permission to apply for judicial review. 2008‑10‑31 01:46:27 2008 cases, Brief summary, Displacement, Permission hearings, Transcript


MH v UK 11577/06 [2008] ECHR 181Statement of facts and question to the parties. The question to the parties is: "Do the facts of the case disclose a breach of Article 5 § 4 of the Convention: (a) in relation to the failure to provide an automatic referral to a court when a patient is detained under section 2 of the Mental Health Act 1983 and when that patient lacks the capacity to take proceedings; and (b) when that detention is prolonged under section 29(4) of the same Act?" 2008‑10‑31 01:18:42 2008 cases, Brief summary, Displacement, ECHR, Transcript


London Borough of Barnet v Robin [1998] EWCA Civ 1630 — Unsuccessful appeal against s29 displacement order. 2008‑09‑11 12:46:16 1998 cases, Displacement, No summary, Transcript


R (MH) v Secretary of State for the Department of Health [2004] EWHC 56 (Admin) — This case concerned the operation of s29(4) which extends s2 while s29 displacement proceedings take place. 2008‑02‑22 15:56:49 2004 cases, Displacement, No summary, Transcript


R (Holloway) v Oxfordshire County Council [2007] EWHC 776 (Admin)The without-notice interim displacement order under s29, and the subsequent detention under s3, were lawful: (1) neither the culpable failure of the council to inform the NR, nor the failure of the judge to enquire into this, deprived the court of jurisdiction; (2) the safeguards in the Act meant that the interim relief did not cause irreversible prejudice, thus Article 6 was not engaged; (3) (obiter) s6(3) would have provided the Trust with a defence to false imprisonment. 2008‑02‑22 13:59:03 2007 cases, Brief summary, Displacement, Transcript


R (MH) v Secretary of State for the Department of Health [2005] UKHL 60Mental disorder — Mental health review tribunal — Discharge of patient — Detained patient incompetent to apply for own discharge — Extension of detention pending determination of approved social worker's application to displace nearest relative — Whether statutory scheme incompatible with patient's Convention right to liberty — Mental Health Act 1983, ss 2, 29(4) — Human Rights Act 1998, Sch 1, Pt I, art 5(4). The scheme for the review of a patient's detention under the 1983 Act was capable of being operated so as to give practical effect to the patient's right, guaranteed by art 5(4) of the European Convention on Human Rights, to take proceedings to have the lawfulness of her detention speedily decided by a court and for review thereafter at reasonable intervals. 2007‑07‑17 17:47:41 2005 cases, Detailed summary, Displacement, Transcript


M v UK 30357/03 [2007] ECHR 206Case struck out of list, as friendly settlement reached to ensure MHA compliant with Article 8: MHA to be amended to allow patient to apply for displacement of NR on specified grounds. 2007‑07‑17 17:22:45 2007 cases, Brief summary, Displacement, ECHR, Transcript


JT v UK 26494/95 [2000] ECHR 133Case struck out of list, as friendly settlement reached to ensure MHA compliant with Article 8: MHA to be amended to allow patient to apply for displacement of NR where reasonably objected; and to allow exclusion of certain persons from acting as NR. 2006‑05‑03 21:56:24 2000 cases, Detailed summary, Displacement, ECHR, Transcript


R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin) — Sections 26 and 29 incompatible with Article 8. 2006‑04‑15 20:00:04 2003 cases, Detailed summary, Displacement, Transcript


R (MH) v Secretary of State for the Department of Health [2004] EWCA Civ 1609 — Sections 2 and 29(4) incompatible with Article 5(4) ECHR (subsequently overruled by HL). 2006‑04‑15 19:55:44 2004 cases, Displacement, No summary, Transcript


Lewis v Gibson [2005] EWCA Civ 587 — Appeal of interim s29 displacement order. Appeal dismissed. 2006‑04‑13 21:45:04 2005 cases, Displacement, No summary, Transcript