R (Modaresi) v SSH [2013] UKSC 53
The Secretary of State's refusal to refer case under s67 was lawful.
Related judgments
R (Modaresi) v SSH [2013] UKSC 53
MHLR
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 – [2014] 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 ([2011] 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 ([2011] 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.
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
External link
[2013] MHLO 63