MH (by her litigation friend, Official Solicitor) (FC) (Respondent) v. Secretary of State for the Department of Health (Appellant) and others
19. Silber J declined to hold that the present law was incompatible in either respect. The Court of Appeal at  EWCA Civ 1609,  1 WLR 1209, however, made two declarations of incompatibility:
The Secretary of State now appeals against both declarations.
Is section 2 incompatible?
20. The question is not whether section 2 is incompatible with article 5(1)(e). Indeed it would be difficult to argue that it was. Its object is to limit compulsory admission to hospital to cases where the Winterwerp criteria are met. The requirement of objective medical expertise is met by the recommendations of two medical practitioners, who must be independent of one another, one of whom must be a specialist and at least one of whom must be independent of the admitting hospital: see section 12. The grounds for admission, set out in para 7 above, are fully in line with the Winterwerp requirements. An admission to hospital which complies with the procedural requirements of the Act, and where the substantive grounds for admission do in fact exist, would appear fully to comply with the article 5(1)(e) of the Convention. If the procedural requirements or grounds are not in fact met, the patient will have a right of redress either under the ordinary law or under the Human Rights Act. Even in the most compliant of legal systems, it sometimes happens that people's rights are violated: see, for example, Storck v Germany (Application No 61603/00), 16 June 2005.
21. The question, therefore, is whether section 2 is incompatible with the additional procedural protection given by article 5(4), which is designed to procure the speedy release of someone who should not in fact have been detained in the first place or should not be detained any longer.
22. The short answer to this question is that article 5(4) does not require that every case be considered by a court. It requires that the person detained should have the right to "take proceedings". The wording is different from article 5(3), which deals with the rights of a person who has been arrested on suspicion of having committed a criminal offence or to prevent his committing an offence or fleeing after having done so:
The difference between a right to "take proceedings" and a right to "be brought promptly before a [court]" must be deliberate. It stops short of requiring judicial authorisation in every case. It leaves to the person detained the choice of whether or not to put the matter before a court. Understandably, therefore, the respondent abandoned the argument that article 5(4) required that all section 2 admissions should be referred to a tribunal and concentrated only on those patients who lack the capacity to exercise their article 5(4) rights. Logically, of course, this argument would also apply to a patient detained under section 3, for the automatic reference after six months under section 68(1) would not be regarded as "speedy".
23. For them, the argument is that a right "to take proceedings" is ineffective if the patient lacks the ability to do so. Given that the Convention is there to secure rights that are "practical and effective" rather than "theoretical and illusory" this is a powerful argument. But it does not lead to the conclusion that section 2 is in itself incompatible with the Convention or that the solution is to require a reference in every case. Rather, it leads to the conclusion that every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so.
24. There is no Strasbourg case which implies into article 5(4) the requirement of a judicial review in every case where the patient is unable to make her own application, nor is this suggested in authoritative texts such as Karen Reid, A Practitioner's Guide to the European Convention on Human Rights (2nd ed 2004). Indeed, in Rakevich v Russia (Application No 58973/00), 28 October 2003, 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. In the recent case of Storck v Germany (Application No 61603/00), 16 June 2005, there was in principle a procedure available to protect the patient's interests, but the applicant had been unable to secure outside help during her confinement in a private clinic to enable her to institute such proceedings, so it was "questionable whether there had been sufficient safeguards to guarantee the applicant's effective access to court": see para 118. This was not because of lack of capacity but because of the lack of practical machinery for contacting the court. This illustrates only too well how there may be many other obstacles than lack of capacity to the effective exercise of the right to take proceedings. Singling out lack of capacity for special treatment would raise a host of problems of definition and assessment for which there is no warrant either in the Convention or in the Act.
25. That is why our system tries hard to give patients and their relatives easy access to the tribunal which is itself designed to meet their needs. The managers of the hospital have a statutory duty, under section 132 of the Act, to take such steps as are practicable to ensure that the patient understands the effect of the provisions under which she is detained and the rights of applying to a mental health review tribunal which are available to her. This has to be done as soon as practicable after the patient is detained. Unless the patient wishes otherwise, this information is also to be given to the patient's nearest relative. Under the Code of Practice (published March 1999 pursuant to section 118 of the Act by the Department of Health and Welsh Office), section 14, information should be given to the patient "in a suitable manner and at a suitable time" by a person who "has received sufficient training and guidance". Patients and nearest relatives have to be told how to apply to a tribunal, how to contact a suitably qualified solicitor, that free legal aid may be available, and how to contact any other organisation which may be able to help them make an application. In other words, the hospital managers have to do the best they can to make the patient's rights practical and effective.
26. Mental health review tribunals were also designed with that object in mind. Before they were created, in the Mental Health Act 1959, compulsory detentions were authorised by a judicial officer, who was widely regarded as a 'rubber stamp' of little practical value in challenging the decision to detain. Tribunals are composed of a legally qualified presider, a medical member with expertise in the diagnosis and treatment of mental disorder, and a third member with other suitable experience, for example in the social services. Although the procedures have become more formal since the advent of legal assistance for patients, they are designed to be user-friendly and to enable the patient and her relative to communicate directly with the tribunal. A reference to the tribunal must be considered in the same way as if there had been an application by the patient: see r 29. Hence although the initiative is taken by someone else, the patient's rights are the same. Although an application has to be made in writing, it can be signed by any person authorised by the patient to do so on her behalf: see r 3(1). This could be any relative, a social worker, an advocate, or a nurse, provided of course that the patient has sufficient capacity to authorise that person to act for her. The common law presumes that every person has capacity until the contrary is shown and the threshold for capacity is not a demanding one. These principles have recently been confirmed by Parliament in the Mental Capacity Act 2005.
27. Even if the patient's nearest relative has no independent right of application, there is much that she, or other concerned members of the family, friends or professionals, can do to help put the patient's case before a judicial authority. The history of this case is a good illustration. The patient's mother was able to challenge every important decision affecting her daughter. Most helpfully, she stimulated the Secretary of State's reference to the tribunal very quickly after it became clear that her daughter was to be kept in hospital longer than 28 days. Had MH been discharged once the 28 days were up there would, in my view, have been no violation of her rights under article 5(4). It follows that section 2 of the Act is not incompatible with article 5(4). Section 29(4), however, is another matter.
Is section 29(4) incompatible?
28. Section 29(4) raises a very different question, which applies to all patients affected by it, irrespective of their mental capacity. The system is obviously capable of being operated compatibly. The patient is entitled to make an application during the initial 14 days of the section 2 admission, thus complying with her right, should she choose to exercise it, to a speedy initial judicial determination of the lawfulness of her detention. The county court proceedings may produce a swift displacement order, whether interim or final, after which the patient is admitted under section 3. The patient then has a fresh right to apply to a tribunal, which will arise at a "reasonable interval" after the first. Alternatively, a displacement order may be refused, in which case the patient can no longer be detained unless the relative has been persuaded to withdraw her objection to the section 3 admission. But in that event a fresh right to apply to a tribunal will also arise.
29. The problem arises when the county court proceedings drag on and the patient is detained indefinitely without recourse to a tribunal. Indeed, it may be difficult for the county court to proceed too quickly, without endangering the rights of the parties under article 6 and the rights of both the patient and her relative under article 8. Hence there may well come a time when her article 5(4) rights will be violated unless some means of taking proceedings is available to her. That time may come earlier if she has not made an initial application, so that the lawfulness of her detention has never been subject to judicial determination, than it would do if there had been an early tribunal hearing. But here again the means are available, within the existing law, of securing that she does have that right.
30. The preferable means is what happened in this case: that the Secretary of State uses her power under section 67(1) to refer the case to a tribunal. This is preferable because mental health review tribunals are much better suited to determining the merits of a patient's detention and doing so in a way which is convenient to the patient, readily accessible, and comparatively speedy. As already seen, a reference is treated as if the patient had made an application, so that the patient has the same rights within it as she would if she herself had initiated the proceedings. It can, of course, be objected that this solution depends upon the Secretary of State being willing to exercise her discretion to refer. 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. In this case this happened at the request of the patient's own lawyers. Should the Secretary of State decline to exercise this power, judicial review would be swiftly available to oblige her to do so. It would also be possible for the hospital managers or the local social services authority to notify the Secretary of State whenever an application is made under section 29 so that she can consider the position. These applications are not common: they no longer feature in the annual published Judicial Statistics, but when they did feature they tended just to make double figures every year. So the burden on the authorities, the Secretary of State and the tribunals would not be high.
31. Judicial review and/or habeas corpus would, of course, also be available to challenge the lawfulness of the patient's detention. Any person with sufficient standing could invoke them. Before the Human Rights Act 1998, the European Court of Human Rights held that these were not a sufficiently rigorous review of the merits, as opposed to the formal legality, of the patient's detention to comply with article 5(4): see X v United Kingdom (1981) 4 EHRR 188. It may well be that, as the Administrative Court must now itself act compatibly with the patient's rights, it would be obliged to conduct a sufficient review of the merits to satisfy itself that the requirements of article 5(1)(e) were indeed made out. But it is not well equipped to do so. First, it is not used to hearing oral evidence and cross examination. It will therefore take some persuading that this is necessary: cf R (Wilkinson) v Broadmoor Special Hospital Authority  1 WLR 419 and R (N) v M  1 WLR 562. Second, it is not readily accessible to the patient, who is the one person whose participation in the proceedings must be assured. It sits in London, whereas tribunals sit in the hospital. How would the patient's transport to London be arranged? Third, it is not itself an expert tribunal and will therefore need more argument and evidence than a mental health review tribunal will need to decide exactly the same case. All of this takes time, thus increasing the risk that the determination will not be as speedy as article 5(4) requires.
32. Hence, while judicial review and/or habeas corpus may be one way of securing compliance with the patient's article 5(4) rights, this would be much more satisfactorily achieved either by a speedy determination of the county court proceedings or by a Secretary of State's reference under section 67. Either way, however, the means exist 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, although the action or inaction of the authorities under it may be so.
33. For these reasons, my Lords, I would decline to hold that either section 2 or section 29(4) is incompatible with article 5(4) of the Convention in the respects identified by the Court of Appeal. I would therefore allow this appeal and set aside the declarations.
LORD BROWN OF EATON-UNDER-HEYWOOD