R (Rayner and Marsh) v SSHD  EWHC 1028 (Admin)
(1) Section 75 provides an independent legal device by which the detainee may appear before a judge which is not dependent on the good will of the detaining authority and thus is Article 5 compliant; in any event, the section cannot be incompatible as means exist to operate it compatibly. (2) In order for s75 to be compatible the Secretary of State ought to refer the case of a recalled patient at once (in practice, within 72 hours) to the MHRT unless the circumstances of the applicant or his case positively require otherwise. (3) On the facts the delay in making the reference breached Article 5(4).
There were two issues:
- Whether s75 (which allows the Home Office, having recalled a restricted patient, one month to refer the case to the MHRT) and/or that section in combination with rule 29(cc) is compatible with Article 5(4).
- Whether there was any unlawfulness on the facts of each case.
The chronology is set out in detail below as the dates are referred to extensively in the judgment:
Aug 02: section 37/41 imposed
Aug 04: conditionally discharged
May 05: admitted as informal patient
14/6/05: patient recalled
21/6/05: recall letter (dated 14/6/05) received by hospital
4/8/05: letter from solicitor to HO - chasing reference
8/8/05: reply - apologisin g for oversight; confirming reference sent
12/8/05: reference received by MHRT
16/8/05: MHRT write to HO - MHRT is 29/9/05
16/8/05: MHRT write to hospital - reference made; reports due in 3 weeks (see r29(c), r6(1))
17/8/05: MHRT phone hospital MHA administrator's deputy - "MHRT is 27/9 1430"
23/8/05: MHRT write to hospital MHA administrator - "MHRT is 27/9/05"
7/9/05: reports due
21/9/05: solicitor phones hospital MHA administrator - to chase reports; hospital unaware of date and obtain adjournment; new 3 weeks run from here
12/10/05: reports due
14/10/05: reports received (delay due to RMO's illness)
28/10/05: MHRT grant deferred conditional discharge
4/11/05: placement offered
12/1/06: placement available; patient moves in
Claim against Tribunal
Rule 29(b) requires notice of reference to be sent to responsible authority; this was done promptly enough.
Rule 29(cc) requires a two-stage process: fixing the date by a process of consultation; and giving notice (in writing - see rule 27). This was fulfilled by the 17/8/05 phone call and 23/8/05 letter respectively.
The MHRT procedure is to fix and notify within 48 hours. Here an 11-day period was justified due to the weekend and the 16/8/05 letter already having been sent.
Rule 29(cc) envisages a hearing being 5-8 weeks from receipt of the reference, but a hearing outside this timescale is not necessarily unlawful: the postponement of a hearing does not necessarily involve any infringement under Article 5 or Article 6 (R (KB) v MHRT  EWHC 639 (Admin)). The decision to adjourn was rational and proportionate.
Claim against Trust
The claimant submitted that the RMO should have begun preparing his report from receipt of the 14/6/06 recall letter - this argument was rejected as the trigger for producing reports is the receipt from the Tribunal office of the notice of reference (16/8/06).
The hospital denied receiving the 16/8/05 (notification of reference) or 23/8/05 (notification of hearing) letters: if time ran from the 21/9/05 phone call then the subsequent two-day delay in producing reports was adequately explained by the RMO's illness. Although it was very remarkable indeed that both letters went astray, in the absence of oral evidence, it could not be concluded that the Tribunal failed to send them, or that the hospital had in fact received them, so proceedings against both were dismissed.
The delays were "just one of those things" and could not be viewed as evidence of systemic inadequacies.
The claimant submitted that the Tribunal had a positive duty to "police" the parties (see R (B) v MHRT  EWHC 1553 (Admin), c.f. R (Hall) v MHRT  EWCA Civ 2052). But B involved repeated failures to give case management directions and an 8-month delay; here the MHRT had made a reasonable assumption and had chased the reports soon after the deadline.
Article 5(4): compatibility arguments
The claimant submitted that domestic law was incompatible with Article 5(4) in the following three respects.
(a) inability to take proceedings personally
Article 5(4) states: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." (emphasis added)
The claimant submitted that this right cannot be satisfied where it is the Secretary of State who takes the proceedings.
He relied on Rakevich v Russia 58973/00  ECHR 558: "The Court notes that the cornerstone guarantee of Article 5(4) is that a detainee must have the right actively to seek judicial review of his detention. ... Article 5(4) requires in the first place an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the detention. When this remedy is available, the detainee's access to the judge should not depend on the good will of the detaining authority."
He argued that this was repeated and reinforced in Gorshkov v Ukraine 67531/01 (2005), which case also said that the automatic referral in question was a "surplus guarantee" and insufficient to eliminate the need for an independent right of individual application by the patient.
He drew attention to R (MH) v Secretary of State for the Department of Health  UKHL 60 ("H"): "Indeed, in Rakevich v Russia ... it was held that even the judicial review of every admission on the initiative of the detaining authorities is not enough if the patient does not herself have the direct right to apply for her release."
The defendant argued that Rakevich and Gorshkov do not reflect the clear and settled jurisprudence of the court; s75 and the rules give a superior right to that guaranteed by Article 5(4); and H as a whole supports that there is no incompatibility:
- X v UK (1981): Patient is entitled to take proceedings "at any rate where there is no automatic periodic review of a judicial character".
- Koendjbiharie v Netherlands 11487/85: The legal system did amount to an "automatic periodic review of a judicial character" within the meaning of X v UK, and thus was sufficient.
- Megyeri v Germany 13770/88  ECHR 49: This case also refers to X v UK in similar terms.
- Musial v Poland 24557/9425 (1999): This case was the authority quoted in Rakevich and Gorshkov (in relation to the "cornerstone guarantee" above); it referred back to Megyeri, which referred back to X. The defendant therefore argued that "an automatic review of a judicial character" satisfies Article 5(4) - and that Rakevich and Gorshkov were trying to restate, not modify, this position.
The defendant argued that the s75 reference is automatic (albeit one month is allowed) and not dependent on the good will of the detaining authority; and that the Act and procedure does not merely afford "surplus guarantees" but contained the fundamental right.
Finally, the defendant relied on H, where that judgment said: "...although the initiative is taken by someone else, the patient's rights are the same. ... But the secretary of State is under a duty to act compatibly with the patient's Convention rights and would be well advised to make such a reference as soon as the position is drawn to her attention. ... the means exists of operating section 29(4) in a way which is compatible with the patient's rights. It follows that the section itself cannot be incompatible..."
Held: since X, a procedure which "guarantees an automatic review of a judicial character" is capable of satisfying the requirements of Article 5(4); Article 5(4) requires an "independent legal device" by which the detainee may appear before a judge, and this access "must not depend on the good will of the detaining authority". On the facts, s75 meets these criteria. In any event, H is decisive: since there is a means of operating the section compatibly, the section itself cannot be incompatible; that case concerned a discretion to refer, so the principle applies all the more so to the mandatory reference in this case.
(b) recourse to Tribunal not immediate
The claimant argued that Article 5(4) comtemplates the possibility of an immediate application. Section 75 allows one month; and that deadline can be missed, leaving the patient at the mercy of the Secretary of State.
In R (K) v SSHD (1990) 1 All ER 703 it was held that (1) medical evidence was not required before recall and (2) the one-month period in s75 strikes a balance between a speedy hearing and quality of evidence, including post-recall evidence. The first point was overruled by Kay v UK 17821/91, and the second point thereby undermined, in that gathering evidence is no reason to delay the reference.
Held: in order that section 75 satisfies the Convention right of the patient under Article 5(4), which contemplates the right of immediate application, the Secretary of State ought to refer the case of a recalled patient at once (as he asserts he normally does - in practice, within 72 hours) to the MHRT unless the circumstances of the applicant or his case positively require otherwise. The section does not prevent this, so the section itself if not incompatible.
(c) hearing can take 3 months and therefore not speedy
The friendly settlement in Roux v UK 25601/94 (1997) was that the rules would "be amended to introduce a fixed time limit of two months for a hearing to take place in the case of applications of patients who have been recalled".
Held: This envisaged a change to the rules, not the Act, and did not support the proposition that a case must be heard within eight weeks of recall: whether a hearing is speedy is fact-specific (see R (C) v MHRT London South & South West Region  EWCA Civ 1110). If the reference is made promptly then the three-month period which the claimant complained of would not arise.
Article 5(4): claim against SSHD on facts
There was a 19 week and 3 day delay between recall and the MHRT; this breached Article 5(4).
There was no excuse for the Home Office not to have referred within 72 hours of recall, as was their policy; allowing for the weekend, the latest date should have been 20 June; the violation was therefore from 20 June until 8 August, when the reference was actually made.
The judge strongly urged the damages aspect of the claim to be settled out of court, bearing in mind that, although the hearing was delayed, the conditional discharge was deferred and the placement was not available until some time later.
The facts of Marsh were similar in that the Home Office failed to refer soon enough, but here this was due to a misunderstanding as to the patient's legal position rather than an oversight, and the patient was later conditionally discharged by the Home Office rather than the Tribunal. The claimant argued that had the reference been made on time he would have been discharged earlier.
However, there was a delay of 11 months before the JR claim was issued. Even allowing for the delay in obtaining funding, there was no adequate reason for this, so permission was refused. Although the limitation period for a Part 8 HRA claim would have been 12 months (and not 3 months as for JR), JR was the appropriate route of challenge so the shorter time period would apply.
Permission was refused on March; all Rayner's claims were dismissed except the Article 5(4) claim against the Secretary of State; the issue of whether Rayner suffered any loss was adjourned.
Mr Justice Holman
Paul Bowen (instructed by Fairweather & Co) appeared on behalf of the Claimants (Rayner & Marsh)
Jeremy Hyam (instructed by Treasury Solicitor) appeared on behalf of the 1st and 4th Defendants (SSHD & Secretary of State for Health)
Katherine Olley (instructed by Treasury Solicitor) appeared on behalf of the 2nd Defendant (MHRT)
Marina Wheeler (instructed by Brachers) appeared on behalf of the 3rd Defendant (West Kent NHS & Social Care Trust)