R (Modaresi) v SSH  EWHC 417 (Admin)
On Friday 31/12/10 the Claimant, on the 12th day of detention under s2, gave a Tribunal application to a nurse, who faxed it to the MHA office, where it went unnoticed that day but was faxed to the Tribunal office on Tuesday 4/1/11. On 5/1/11 the Tribunal rejected it as out of time. On 6/1/11 the Claimant was detained under s3. On 7/1/11 the Secretary of State for Health refused to make a s67 reference; however, following the grant of permission to apply for judicial review, a reference was made on 1/2/11 and the hearing listed for 11/3/11. On 18/2/11 the Claimant was released on a CTO.
The claims were against (1) the Tribunal's refusal to accept the application (Second Defendant), (2) The Health Secretary's refusal to refer (First Defendant), and (3) The Trust's actions (Third Defendant).
(1) The application was out of time:
- (a) Tribunal rule 12 (providing for the Rules' deadlines to be extended if they end on non-working days) has no application to the statutory 14-day deadline.
- (b) Since delivery is effective almost instantaneously by fax, even when the Tribunal office is closed, there is no need to extend the deadline.
(2) The refusal to refer was lawful:
- (a) There was no Article 5(4) delay because by 7/1/11 the Claimant was detained under s3, so a reference would have taken as long as an application.
- (b) Although the Claimant would be forced to use her s3 application early (instead of her s2 application) for so long as she had a right of application there was no Article 5(4) breach of the right to take proceedings.
- (c) It was reasonable to decline to refer for so long as she had the right to make an application herself; the Health Secretary had agreed to consider a reference following any unsuccessful Tribunal application.
(3) The judicial review claim against the Trust failed:
- (a) It was conceded that an isolated failure by an employee (as opposed to an unreasonable system) would not given rise to a remedy by way of judicial review.
- (b) The Trust wrongly believed that eligibility was calculated by reference to the date of the patient's signature, rather than the date of receipt by the Tribunal; given this, it was not unreasonable to have a system which did not provide for applications to be transmitted without delay outside working hours.
- (c) Even if there were no reasonable grounds for their belief, the system would have been reasonable if patients had been told they must make applications during normal working hours.
- (d) In any event, a system to deal with out-of-hours applications would have been unlikely to have made any difference in this case, the application having been given to the nurse during working hours.
- (e) For these reasons, the JR claim failed; however, there may be a private law claim in contract or negligence.
Before: Edwards-Stewart J
Matthew Stockwell (instructed by Peter Edwards Law) for the Claimants
Paul Greatorex (instructed by DWP/DH Legal Services) for the 1st DefendantsOwain Thomas (instructed by Capsticks Solicitors LLP) for the 3rd Defendants