R (H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening)

A mental health review tribunal reviewing compulsory detention must order discharge unless it is satisfied that a mental disorder warranting detention persists. A statutory test which instead requires the patient to establish that a condition for detention is absent places the risk of uncertainty on the patient. That test is incompatible with articles 5(1) and 5(4) of the European Convention on Human Rights.

Discharge is not invariably required whenever every domestic admission criterion cannot be proved on the balance of probabilities. Where a disorder is controlled by medication but relapse following discharge presents an uncertain risk, continued detention may be lawful if it is a proportionate response after weighing the patient’s interests against those of the public.

H was detained as a restricted patient under sections 37 and 41 of the Mental Health Act 1983. A Mental Health Review Tribunal refused his application for discharge under section 73, notwithstanding medical evidence that he did not satisfy the conditions for detention. Crane J dismissed H’s application for judicial review and refused declaratory relief concerning compatibility with articles 5(1) and 5(4) of the European Convention on Human Rights.

H appealed, pursuing only whether section 73, incorporating section 72, could be interpreted compatibly with the Convention. The Secretary of State intervened and invited a declaration of incompatibility if a compatible interpretation was unavailable. The central issue was whether continued detention could lawfully depend on the patient proving that a statutory detention criterion was absent.

1. Appeal allowed. Lord Phillips MR delivered the judgment of the court. Sections 72 and 73 of the Mental Health Act 1983 were incompatible with articles 5(1) and 5(4) of the European Convention on Human Rights in so far as they did not require discharge where a mental disorder warranting detention could not be shown to persist.

2. A Mental Health Review Tribunal reviewing detention performs the function required by article 5(4). It must be able to decide whether detention is lawful and to order release where it is not. When applying sections 72 and 73, the tribunal must consider all the criteria corresponding to those governing admission. Under the statutory language, however, the patient obtains discharge only if the tribunal is satisfied that at least one criterion is absent.

3. A requirement to act when satisfied that a state of affairs does not exist cannot be interpreted as a requirement to act whenever the tribunal is not satisfied that it does exist. Although courts must strive for Convention-compatible construction, the suggested interpretation would reverse the statutory meaning. The incompatibility therefore could not be avoided by interpretation.

4. Articles 5(1) and 5(4) require it to be reliably shown, through objective medical evidence, that the patient has a true mental disorder of a kind or degree warranting confinement. The validity of continued confinement depends on the persistence of that disorder. A test permitting detention merely because the patient cannot establish the contrary places the risk of uncertainty on the wrong party.

5. The court added that the Convention does not necessarily require proof of every condition imposed by section 3. Once unsoundness of mind is established, article 5 does not itself require proof that treatment will alleviate or prevent deterioration, or that treatment cannot be provided without detention. Nor must a medicated patient invariably be discharged where future compliance and the risk of relapse are uncertain. Continued detention is permissible only where it is a proportionate response, assessed by weighing the patient’s interests against the risks to the public.

6. H was entitled to a declaration of incompatibility. Its precise wording was adjourned for one week. The appeal was allowed with costs, and leave to appeal to the House of Lords was refused.

1. Court of Appeal: By [2001] EWCA Civ 415, unanimously allowed H’s appeal and held that sections 72 and 73 of the Mental Health Act 1983 were incompatible with articles 5(1) and 5(4) of the European Convention on Human Rights. The wording of the declaration was adjourned, and leave to appeal to the House of Lords was refused.
2. High Court, Administrative Court: Crane J dismissed H’s application for judicial review and refused declaratory relief concerning compatibility. No citation is stated in the judgment.
3. Mental Health Review Tribunal: Refused H’s application for discharge under section 73.