R (Modaresi) v SSH  UKSC 53,  MHLO 63
The Secretary of State's refusal to refer case under s67 was lawful.
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2014 are available here: MHLR 2014.
Whether the Secretary of State acted unlawfully in declining to make a reference to the Tribunal when the Tribunal had wrongly concluded that an application was out of time - R (Elham Modaresi) v Secretary of State for Health –  MHLR 51 (SC)
Points Arising: When a patient had a right to apply to a Tribunal in any event, even though they had lost a previous right to apply because of an error of law by the Tribunal, the Secretary of State did not act unlawfully in declining to make a reference to the Tribunal. (If was left open whether the Secretary of State would have been obliged to take steps to correct an error by the Trust, an agent of the state, if EM had remained detained under s2 and so had not acquired the further right to apply; Lady Hale also suggested that Trusts should have procedures that ensure that arguable breaches of Art 5 ECHR do not occur.)
Facts and Outcome: The Supreme Court dismissed an appeal from the Court of Appeal by EM. She was detained under s2 Mental Health Act 1983 on 20 December 2010, sought to apply for a Tribunal hearing, giving the relevant form to Trust staff on 31 December 2010; when received by the Tribunal on 4 January 2011, it was rejected as being out of time (there being a 14-day time limit for an application in relation to a section 2 detention). On 6 January 2011, EM was placed under s3 of the Act; her solicitors then asked the Secretary of State to refer the case to the Tribunal under s67 of the Act, which was declined on the basis that she could make a fresh application in relation to the s3 detention (though the Secretary of State would consider making a reference at a later stage if the application failed). Proceedings were commenced against the Tribunal, the Trust and the Secretary of State. The judge ( MHLR 300) held that the application to the Tribunal was out of time, the Secretary of State had not acted unreasonably, and the Trust had not failed to have an adequate system; on appeal, the Court of Appeal ( MHLR 311) held that the application had been in time (as time limits that expire on a non-business day are extended to the next business day), such that the claim against the Tribunal succeeded, but upheld the decision in relation to the Secretary of State and found that there was no point in considering the claim against the Trust any further. The claim against the Secretary of State was appealed further but dismissed on the basis that EM still had access to the Tribunal through her right to apply in relation to the s3 detention, and the loss of the right to apply pursuant to the s2 detention as a result of the failure of the Tribunal did not oblige the Secretary of State to make a referral. The question of whether the Secretary of State would have had to correct an error by the Trust, an agent of the state, if EM had remained under s2 and so had not acquired a further right of application, was left open; and Lade Hale left open whether proceedings against the Trust should have been dismissed, commenting that the safest course was for Trusts to have systems to ensure that arguable breaches of Art 5 did not occur.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Mental health review tribunal — Application to — Patient applying for review of admission to hospital for assessment — Time limit for application expiring on public holiday — Application form faxed to hospital trust in time but not received by tribunal until first working day after public holiday — Tribunal wrongly treating application as out of time — Secretary of State refusing to refer patient’s case to tribunal because patient having fresh opportunity for application as now detained for treatment — Whether refusal to refer breaching patient’s Convention right to liberty — Whether lawful — Mental Health Act 1983 (as amended by Transfer of Tribunal Functions Order 2008, art 6, Sch 3, para 47), ss 66, 67 — Human Rights Act 1998, Sch 1, Pt I, art 5.4
Regina (Modaresi) v Secretary of State for Health and others
;  WLR (D) 309
SC(E): Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Wilson, Lord Sumption, Lord Carnwath JJSC: 24 July 2013
The Secretary of State for Health had not acted unlawfully in refusing to exercise his statutory discretion to refer the case of a detained patient to a mental health review tribunal for review in circumstances where the patient had a right to make an application to the tribunal herself.
The Supreme Court so held in dismissing an appeal by the claimant, Elham Modaresi, against the decision of the Court of Appeal (Mummery, Richards and Black LJJ)  PTSR 999 to affirm the decision of Edwards-Stuart Jto dismiss her claim for judicial review of the Secretary of State’s decision to decline to refer her case to the First-tier Tribunal after the tribunal had ruled that her application for review of her detention for assessment under section 2 of the Mental Health Act 1983 was out of time.
The claimant, who suffered from schizophrenia, had been admitted to hospital for assessment and detained under section 2 of the 1983 Act. On 31 December 2010, 11 days later, she had given a completed application form for a review of her detention under section 66(1)(a) of the Act to a member of staff on her ward, who had faxed it to the hospital trust. The trust had not faxed the form to the tribunal until 4 January 2011, when the office reopened after the New Year holiday. The tribunal had notified the claimant that the application form had been received outside the 14-day time limit prescribed by section 66 and was therefore invalid. The claimant was by then being detained for treatment under section 3 of the Act and was entitled to make a separate application to the tribunal under section 66(1)(b). However, she had asked the Secretary of State to exercise his discretion to refer her case to the tribunal under section 67 of the Act, stating that otherwise she would be deprived of the hearing to which she was entitled as a section 2 patient and that a referral would ensure that she retained her right of application under section 3 in due course. The Secretary of State had refused the claimant’s request, although he had said that, if a fresh application were unsuccessful, he would consider any further request for a section 67 reference. The claimant unsuccessfully sought judicial review of the decisions of the Secretary of State, the tribunal and the trust. The Court of Appeal allowed the claimant’s appeal in respect of the tribunal’s decision, holding that the application had been made in time, but dismissed the appeal in respect of the claim against the trust and the Secretary of State.
LORD CARNWATH JSC (with whom LORD NEUBERGER OF ABBOTSBURY PSC, LORD WILSON and LORD SUMPTION JJSC agreed) said that, in so far as the claimant’s case relied on fundamental principles of access to the court, under article 5.4 of the Convention for the Protection of Human Rights and Fundamental Freedoms or otherwise, there was a short answer. She had not been deprived of her right of access to a court or tribunal to review her detention. She had such a right under section 3 of the 1983 Act. Given the claimant’s right to apply under section 3, there was no present conflict with article 5.4. The Secretary of State had been entitled to proceed on that basis. The risk of a breach would only arise if and when her first application had failed, and her circumstances had changed sufficiently to make a second application realistic. It was true that the Secretary of State had not promised to make a reference at that stage. Section 67 gave him no power to commit himself in that way. All he could do was to agree to consider the use of that power if and when it became necessary. But that discretion would be underpinned by his duty to avoid a breach of article 5.4. In the particular circumstances, the Secretary of State’s response to the request for a reference under section 67 was both lawful and reasonable.
BARONESS HALE OF RICHMOND DPSC gave a concurring judgment.
Appearances: Richard Gordon QC and Matthew Stockwell (instructed by Peter Edwards Law, Wirral) for the claimant; James Eadie QC and Paul Greatorex (instructed by Treasury Solicitor) for the Secretary of State.
Reported by: Jill Sutherland, Barrister
© 2013. The Incorporated Council of Law Reporting for England and Wales.