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Judgments - MH (by her litigation friend, Official Solicitor) (FC) (Respondent) v. Secretary of State for the Department of Health (Appellant) and others


SESSION 2005-06

[2005] UKHL 60

on appeal from:[2004] EWCA Civ 1609




for judgment IN THE CAUSE



MH (by her litigation friend, Official Solicitor) (FC) (Respondent) v.

Secretary of State for the Department of Health (Appellant) and others




Appellate Committee


Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Rodger of Earlsferry

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood





Philip Sales

Timothy Morshead

(Instructed by Solicitor, Department of Health)



Richard Gordon QC

Paul Bowen

(Instructed by Elliott Bridgman)


Hearing dates:

25 and 26 July 2005




Thursday 20 OCTOBER 2005





MH (by her litigation friend, Official Solicitor) (FC) (Respondent) v. Secretary of State for the Department of Health (Appellant) and others

[2005] UKHL 60


My Lords,

    1.  I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I am in full agreement with it, and for the reasons which she gives would allow the Secretary of State's appeal and make the order which she proposes.


My Lords,

    2.  I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. I agree with it, and for the reasons she gives I too would allow the appeal and make the order which she proposes.


My Lords,

    3.  I have had the privilege of reading in draft the speech to be delivered by my noble and learned friend, Baroness Hale of Richmond. I agree with it and, for the reasons she gives, I too would allow the appeal and make the order which she proposes.


My Lords,

    4.  How can a patient who is so severely mentally disordered that she cannot apply to a court or tribunal challenge her detention in hospital? The problem very rarely arises but it may do so more often in future. Most of the patients who are admitted under the formal procedures in the Mental Health Act 1983 do have the very limited capacity required to make an application to a mental health review tribunal or have someone else who can help them to make it. The exceptions may be patients with severe learning disability or severe dementia. It is now unusual for people with those disabilities to be formally admitted to hospital under the 1983 Act. Indeed, these days few patients with severe learning disability are admitted to hospital at all.

    5.  Most of these patients are much better looked after outside hospital, either at home or in some form of residential care. Those who are admitted to hospital have since the 1950s generally been admitted without legal formalities. It has long been assumed that patients who do not object to being in hospital can be admitted informally even if they lack the capacity to consent. This is merely an extension of the general principle that people who lack the capacity to decide for themselves may be given the care and treatment which they need in their own best interests without specific legal authorisation. The Act's formal procedures were therefore reserved for the very few who actively objected. This assumption was confirmed as a matter of domestic law by the decision of this House in R v Bournewood Community and Mental Health NHS Trust, Ex p L [1999] 1 AC 458; but it is now under reconsideration in the light of the recent decision of the European Court of Human Rights in HL v United Kingdom (2004) 40 EHRR 761 that such an informal admission may be a deprivation of liberty for the purpose of article 5 of the Convention. But that is not the issue before us.

    The facts and the issues

    6.  This case is about a young woman, MH, who is severely mentally disabled as a result of Down's syndrome. She was formally admitted to hospital for assessment under section 2 of the 1983 Act. Aged 32 at the time, she lived with her mother, BL, who was deeply distrustful of the health and social services and often rejected the help they offered. As a result, MH was denied the therapy and social contacts which might have helped her to develop her skills and lead a fuller life. It was also feared that if her mother felt unable to cope she might harm her daughter rather than turn to the authorities for help. Matters came to a head in January 2003, when the mother became ill and MH increasingly disturbed in her behaviour. The mother having refused entry to the home so that MH's mental health could be assessed, a warrant under section 135 of the 1983 Act was obtained and executed on 31 January 2003. MH was then admitted to hospital for assessment under section 2. The application for her to be admitted to the hospital was made by an approved social worker and supported by the recommendations of two doctors, one of them Dr Langton, a consultant psychiatrist specialising in adult learning disability who had known MH since 1994.

    7.  The grounds for admission set out in section 2(2) are that the patient:

    "(a) . . . is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

    (b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons."

    If the hospital managers to whom the application is made agree to admit the patient, she may then be detained in the hospital for up to 28 days: see section 2(4). However, she can be discharged at any time on the order of the responsible medical officer (the RMO, who is the consultant in charge of her treatment), or the hospital managers, or her nearest relative: see section 23(2)(a). She may also apply to a Mental Health Review Tribunal within 14 days of her admission: see section 66(1)(a) and (i), (2)(a). The tribunal must hear her case within seven days of receiving the application: see Mental Health Review Tribunal Rules 1983, r 31.

    8.  No application was made to the tribunal within 14 days of MH's admission. However, MH's mother, as nearest relative, did try to discharge her. The nearest relative has to give 72 hours' notice in writing to the managers of the hospital of her intention to discharge the patient; if the RMO then reports that if discharged the patient would be likely to act in a manner dangerous to others or to herself, the discharge is of no effect: see section 25(1). Dr Langton made such a report in this case and the hospital managers confirmed it. Hence MH was not discharged.

    9.  Once she had become calmer and her needs assessed in hospital, the plan was to find a suitable residential placement for her. As it was known that her mother would not agree to this, it was also planned to arrange for MH to be received into guardianship under section 7 of the 1983 Act. This is a long term alternative to detention and treatment in hospital. The guardian may be a private individual but is usually the local social services authority. The guardian has power to decide where the patient is to live and to require her to attend at specified places for medical treatment, occupation, education or training: see section 8(1). The grounds set out in section 7(2) are that the patient:

    "(a) . . . is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants his reception into guardianship . . . ; and

    (b) it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received."

    As with an application for admission to hospital, the application for reception into guardianship may be made either by an approved social worker or by the patient's nearest relative: see section 11(1). However, as with an application for longer term admission to hospital for treatment under section 3 of the 1983 Act, an approved social worker cannot make the application if the patient's nearest relative has lodged an objection to it: see section 11(4). Furthermore, the nearest relative can discharge the patient from guardianship at any time under section 23(2)(b) and there is no equivalent of the RMO's power in section 25(1) to bar a discharge from hospital. Hence there is no point in making a guardianship application to which the nearest relative objects. In this case, as expected, MH's mother did object to the proposed guardianship application.

    10.  Where the nearest relative objects to an application either for admission for treatment or for reception into guardianship, the authorities may invoke the procedure for appointing an "acting nearest relative" under section 29 of the 1983 Act. An application may be made to the local county court, usually by an approved social worker, on the grounds set out in section 29(3), inter alia:

    "(c)  that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient; or

    (d)  that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or guardianship . . . or is likely to do so."

In this case an application was made to the local county court the day before MH's 28 day admission to hospital for assessment was due to expire. If an application on ground (c) or (d) is pending immediately before the 28 day period runs out, that period is automatically extended until the application has been finally disposed of and, if it is successful, for a further seven days to enable the formalities for admission for treatment or for guardianship to be completed: see section 29(4).

    11.  It must originally have been contemplated that county courts would deal with these cases very quickly. In practice, however, they may drag on for a considerable time: the county court order in this case was made after a three day trial in July 2004 and the application not "finally disposed of" until the Court of Appeal dismissed the mother's appeal in May 2005, more than two years after the proceedings had begun: see Lewis v Gibson [2005] EWCA Civ 587. County courts have, however, a general power under section 38 of the County Courts Act 1984 to make interim orders and the hospital managers or local social services authority may rely upon an interim order appointing an acting nearest relative in order to admit or receive the patient: see R v Central London County Court, Ex p London [1999] QB 1260, CA. An interim order was made on 1 August 2003 and on 7 August 2003 an application was made for MH to be received into guardianship under section 7 of the 1983 Act. By then her condition had much improved in hospital and a suitable placement for her had been found in Liverpool. She had, in fact, already been transferred to that placement in July, presumably on leave of absence from the hospital where she was still technically liable to be detained. She is still under the guardianship of the local authority and was moved to a placement nearer her family in December 2004.

    12.  Section 29(4) of the 1983 Act places the patient in a most unsatisfactory legal position. She has been compulsorily admitted to hospital under a power which is meant to last for 28 days at most before either lapsing or being replaced with a longer term power for which the procedure and criteria are more stringent. She has the right to apply to a mental health review tribunal within the first 14 days, but may very well not do so: we have been told that there were 21,639 uses of section 2 in England in 2003-4 but only 6,108 applications by section 2 patients to a tribunal. Thus some 70% of admissions do not lead to an application, although it is not known whether this is because the patient is quickly discharged from the section (though not necessarily from the hospital), or has consciously decided not to apply, or is incapable of doing so.

    13.  If further treatment or care under compulsory powers were still thought necessary after the 28 days had elapsed, the patient would normally expect to be the subject of an application for admission for treatment under section 3 or a guardianship application. If accepted, this would give her a new right to apply to a tribunal once within the six months for which that admission or reception initially lasts: see section 66(1)(b) or (c) and (i) and (2)(b) and (c). If it is renewed at the end of that period, she can apply once within each period of renewal: the first renewal is for a further six months and thereafter renewals are at yearly intervals: see section 66(1)(f) and (i) and (2)(f). Moreover, if a hospital patient does not exercise her right to apply within six months of admission (or of transfer from guardianship) the hospital managers must refer the case to a tribunal (unless it has come before a tribunal for some other reason): see section 68(1). When a long term detention is renewed, the managers must also refer the case if three years have gone by since the case was last considered by a tribunal: see section 68(2). These duties were introduced in order to ensure that patients who had not exercised their rights to apply, perhaps because they lacked the capacity or had become institutionalised, were not "lost" in the system.

    14.  None of these rights to a review arises if the patient is kept waiting under section 29(4). Yet the timetable for proceedings under section 29 has nothing to do with the patient's needs and is not under her control. Indeed, until the rules were changed in April 2005, the patient could not even be a party to the county court proceedings: see CCR Ord 49, rule 12(3)(b), amended by Civil Procedure (Amendment) Rules 2005 (SI 2005/352). Nor does the nearest relative have any right to apply to a tribunal instead. The normal principle is that a nearest relative who cannot discharge the patient has a right of application to a tribunal. Thus, for example, there is a right to apply within 28 days of an order barring her from discharging the patient: see section 66(1)(g) and (ii) and (2)(d). But this only exists where the patient is detained for treatment, not where the patient is detained for assessment, no doubt because it was thought that there was little point in providing such a right when the detention would only last for 28 days or a short time thereafter. A nearest relative who is displaced under section 29 also has a right to apply once within each year after the court's order: see section 66(1)(h) and (ii) and (2)(g).

    15.  There is, however, a discretionary power in the Secretary of State for Health at any time to refer the case of any patient who is liable to be detained (whether or not she is actually in hospital) or is subject to guardianship: see section 67(1). In this case, solicitors instructed by the mother wrote in early March 2003 asking the Secretary of State to refer the case. This he promptly did and a tribunal hearing took place on 26 March. The tribunal decided not to discharge the patient.

    16.  These judicial review proceedings were launched in May 2003, while MH was still in hospital. They were nominally brought by MH, but in reality by her mother acting as her litigation friend. In July, the mother was replaced as litigation friend by the Official Solicitor, who has maintained this action on MH's behalf. At its height, there were challenges to the decisions of the mental health review tribunal, the local social services authority, and the local county court, as well as to the legislation itself. Only the last is live before us. The issue is whether the current law is compatible with the patient's rights under article 5(4) of the ECHR in two respects.

    17.  Article 5(4) reads as follows:

    "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 his detention is not lawful."

    Under article 5(1), "no-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law". Among the cases listed is "(e) the lawful detention . . . of persons of unsound mind, . . . " As the European Court of Human Rights held in Winterwerp v The Netherlands (1979) 2 EHRR 387, 402, para 39, this requires three things:

    "In the Court's opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of 'unsound mind'. The very nature of what has to be established before the competent national authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder."

Thus, given the inherent changeability of mental disorders, article 5(4) requires, not only an initial right of access to a court or tribunal to discover whether the criteria for detention have been met, but also "a review of lawfulness to be available at reasonable intervals" thereafter: see Winterwerp, 408, para 55. That review need not always be attended by the same guarantees as are required under article 6, see Winterwerp, 409, para 60, but:

    "it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation . . . Mental illness may entail restricting or modifying the manner of the exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves."

    18.  It is argued, therefore, that the present law fails to comply with article 5(4) in two respects. First, it does not provide a practical and effective right of access to a court for a patient detained under section 2 who lacks the capacity to apply to a tribunal by herself. The only way to do this, it is argued, is automatically to refer every such detention to a tribunal. Secondly, the present law does not provide a right of review at reasonable intervals for a patient who finds herself detained by virtue of section 29(4) and is thus deprived of the right which a patient newly detained under section 3 would have.