R (H) v MHRT North and East London Region [2001] EWCA Civ 415

Section 73 incompatible with Article 5 because burden of proof was placed on patient.


Declaration of incompatibility made:

Sections 72(1) and 73(1) of the Mental Health Act 1983 are incompatible with Articles 5(1) and 5(4) of the European Convention of Human Rights in that, for the Mental Health Review Tribunal to be obliged to order a patient's discharge, the burden is placed upon the patient to prove that the criteria justifying his detention in hospital for treatment no longer exist; and that Articles 5(1) and 5(4) require the Tribunal to be positively satisfied that all the criteria justifying the patient's detention in hospital for treatment continue to exist before refusing a patient's discharge.

Following this case, the Mental Health Act 1983 (Remedial) Order 2001 remedied the situation.

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