M , R (on the application of) v Secretary of State for Health

Where primary legislation is incompatible with a Convention right, the court retains a discretion whether to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. An admission of incompatibility, proposed legislation, or the claimant’s lack of immediate practical benefit does not ordinarily remove the need to consider the declaration. The court must decide compatibility and the exercise of its section 4 discretion, but must leave the choice between a Bill, a remedial order, or no legislative action to the Government and Parliament. Where the nearest-relative provisions of the Mental Health Act 1983 impose an unsuitable and irremediable relationship on a detained patient, the resulting continuing interference with private life may justify a declaration under Article 8.

M, a detained mental health patient, challenged sections 26 and 29 of the Mental Health Act 1983. Those provisions made her adoptive father her nearest relative and provided no means by which she, or another person on her behalf, could secure his replacement on grounds of unsuitability. The Secretary of State admitted incompatibility with Article 8 but opposed a declaration under section 4 of the Human Rights Act 1998, relying on the earlier Strasbourg proceedings in JT v United Kingdom, the proposed Mental Health Bill, and the availability of future legislative reform. The issue was whether the court should exercise its discretion to make a declaration despite that admission and the proposed reforms.

1. The claim succeeded. The court made, or decided to make, a declaration of incompatibility concerning sections 26 and 29 of the Mental Health Act 1983 and Article 8 of the Convention. The wording of the declaration was left for further submissions.

2. The incompatibility was established by the automatic appointment of the nearest relative and the absence of any legal route by which the patient could seek replacement on grounds of unsuitability. On the assumed facts, the relationship created a continuous interference with M’s private life, which she was powerless to remedy. The Secretary of State’s admission did not remove the need for judicial determination.

3. The discretion under section 4 had to be exercised in the circumstances as they existed. The earlier Strasbourg proceedings in JT v United Kingdom had identified the incompatibility, but the anticipated legislative response had not occurred. The friendly settlement remained unfulfilled, the draft Mental Health Bill was not final, and its enactment and commencement were uncertain.

4. The court was not required to decline relief because a declaration would provide M with no immediate personal remedy under section 4(6). That limitation applied generally to declarations of incompatibility. Nor was it appropriate to withhold a declaration to protect the Government from political pressure or to avoid delay to proposed legislation.

5. The constitutional division of functions was decisive. The court was responsible for interpreting legislation, determining compatibility, and deciding whether to make a declaration. The Government and Parliament were responsible for choosing whether and how to respond, including by Bill, remedial order under section 10, or no amendment. The court expressed no view on which legislative route should be selected.

6. Regulation 14 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 did not provide M with a legal remedy. It empowered the nearest relative to authorise a delegate, while retaining power to revoke the authority, but conferred no rights on the patient and could not satisfactorily resolve the problem.

First-instance judicial review proceedings in the Administrative Court. The court determined the compatibility issue and exercised its discretion under section 4 of the Human Rights Act 1998 in favour of a declaration.