From Mental Health Law Online
Mental 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.
The House of Lords so held when allowing the Secretary of State's appeal from the Court of Appeal (Buxton, Wall LJJ and Lindsay J) (R (MH) v Secretary of State for the Department of Health (2004) EWCA Civ 1609,  1 WLR 1209) which had allowed an appeal by the claimant, H, acting by her litigation friend the Official Solicitor, from Silber J (R (MH) v Secretary of State for the Department of Health (2004) EWHC 56 (Admin)), and granted declarations that ss 2 and 29(4) of the 1983 Act were incompatible with art 5(4).
H was admitted for assessment for a 28 day maximum under s 2; on being assessed for placement in residential care and to be received into guardianship to which her mother, her nearest relative, objected, an approved social worker applied to the county court under s 29 to be appointed H's acting nearest relative. In consequence the period of her detention was automatically extended under s 29(4).
BARONESS HALE OF RICHMOND said that given the inherent interchangeability of mental disorders, art 5(4) required an initial right of access to a court or tribunal to decide whether the criteria for detention were met and also the availability of review at reasonable intervals thereafter. The right "to take proceedings" enabled a detained person to bring the matter before a court if she chose to do so, but judicial consideration was not required in every case where a patient was unable to apply to a tribunal. Our system tried hard to give patients and their relatives easy access to the tribunal which was itself designed to meet their needs. Hospital managers had to ensure a patient and her relatives understood the effect of the provisions detaining her and knew of her rights of application to the tribunal; the tribunal's procedures were user-friendly; assistance could be given in preparing an application and it could be made on the patient's behalf. In particular the Secretary of State, under s 67, could refer the patient's case at any stage. Accordingly the scheme could be operated so as to give practical effect to art 5(4) rights, and s 2 was not incompatible with it. Since a patient could apply to a tribunal within the first 14 days of a s 2 detention and since county court proceedings could be speedily determined, s 29(4) was capable of operating compatibly; but where there was delay the preferable means was for the Secretary of State to refer under s 67; and there were remedies in any event by way or judicial review and/or habeas corpus and in consequence s 29(4) could not be incompatible with art 5(4). The declarations would therefore be set aside.
All their Lordships agreed.
R (H) v Secretary of State for Health
HL: Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood: 20 October 2005
Philip Sales and Timothy Morshead (Solicitor, Department of Health) for the Secretary of State; Richard Gordon QC and Paul Bowen (Elliott Bridgman, Telford) for H.
Reported by: Diana Procter, barrister.
- MH v UK 11577/06 (2008) ECHR 181
- R (MH) v Secretary of State for the Department of Health (2005) UKHL 60
Extract from Richard Buxton "The future of declarations of incompatibility"  Public Law 213:
- R. (on the application of H) therefore carries two warnings. First, it undermines the purpose and intention of declarations of incompatibility, which is to correct English legislation that is inconsistent with the requirements of the Convention, to say that a legislative provision should not be declared to be incompatible with a Convention right if other means exist of securing, in the particular case in question, the outcome required by that Convention right. Secondly, even if that approach were acceptable in principle, considerable care needs to be exercised before accepting that an incompatible provision can nonetheless be operated compatibly with Convention rights.