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

A person detained under the Mental Health Act 1983 must have access to a court to challenge detention even where incapacity prevents the person initiating proceedings. A 28-day statutory limit does not make judicial safeguards unnecessary, particularly where section 29(4) prolongs detention. Proceedings concerning the nearest relative do not review the lawfulness of the patient’s detention. Judicial review is not an adequate substitute for the specialist tribunal’s merits jurisdiction. Where the statutory scheme omits mechanisms required by article 5(4), the appropriate remedy is a declaration of incompatibility under section 4 of the Human Rights Act 1998; section 3 cannot add provisions absent from the statute.

MH was detained for assessment under section 2 of the Mental Health Act 1983. Her nearest relative sought discharge, but a barring order was made and proceedings were brought to displace the nearest relative. Under section 29(4), MH’s detention continued beyond the ordinary 28-day period while those proceedings remained unresolved. MH lacked capacity to apply to a Mental Health Review Tribunal and was not a party to the section 29 proceedings.

Silber J rejected her judicial review claim. The Court of Appeal considered whether article 5(4) required an effective mechanism for an incapable patient to obtain review, and whether an extended detention under section 29(4) could continue without such review.

1. Appeal allowed. The court unanimously made declarations that sections 2 and 29(4) of the Mental Health Act 1983 were incompatible with article 5(4) of the European Convention on Human Rights.
2. Section 2 detention. Article 5(4) could not be applied so formally that a patient lost protection solely because incapacity prevented the patient initiating proceedings. The state had to place an incapable patient, as nearly as possible, in the same position as a capable patient with access to a Mental Health Review Tribunal. Automatic expiry after 28 days did not cure the absence of access to an outside judicial body. Wall LJ added that 28 days could not be treated as an inherently short period; Lindsay J emphasised that no general safe period of detention could be fixed by rule of thumb.
3. Section 29(4) extension. An extension pending final disposal of nearest-relative proceedings could continue for many months without adequate judicial supervision of the patient’s detention. The County Court considered the suitability of the nearest relative, not whether the patient’s detention remained lawful. The patient was not a party and had no control over the proceedings. All patients, whether capable or incapable, therefore required access to a court in respect of the extension.
4. Alternative remedies. Habeas corpus and judicial review were inadequate substitutes. Judicial review remained a review jurisdiction and could not become a merits challenge. The Mental Health Review Tribunal was the specialist body capable of assessing the patient’s medical condition.
5. Remedy. Although section 3 of the Human Rights Act 1998 was the first resort, it could not be used to add omitted machinery to the statutory scheme. The omission required amendment, so declarations under section 4 were appropriate. The respondent was ordered to pay the appeal costs, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Allowed the appeal and made declarations of incompatibility under section 4 of the Human Rights Act 1998: [2004] EWCA Civ 1609.
2. High Court, Administrative Court: Silber J rejected MH’s application on the merits.
3. House of Lords: Permission to appeal was refused.