MH, R (on the application of) v Mind (The National Association for Mental Health) & Ors

Article 5(4) does not generally require an automatic review of detention. It is sufficient that a detained person can take proceedings at reasonable intervals, having regard to the nature and duration of the detention. A short section 2 detention is further safeguarded by the statutory right to apply to a Mental Health Review Tribunal and by automatic release after 28 days unless another lawful basis for detention arises.

A section 29 application does not make the Mental Health Act 1983 incompatible with the Convention, provided the County Court proceeds expeditiously. For a section 2 patient, dangerousness is not a mandatory discharge criterion under section 72(1)(a). The Tribunal may consider it, but Parliament’s specified criteria form the required statutory framework.

The claimant, a woman with severe learning disabilities, was detained for assessment under section 2 of the Mental Health Act 1983. Her mother sought discharge under section 23, but the responsible medical officer issued a barring order under section 25. An application was then made under section 29 to displace the mother as nearest relative, extending the detention period.

The claimant challenged the compatibility of sections 66(1) and 29(4) with articles 5(1) and 5(4) of the ECHR. She also sought to quash the Mental Health Review Tribunal’s refusal to discharge her, arguing that the Tribunal had failed to apply the section 25 dangerousness criterion. By the hearing, she no longer had a personal interest, but the Secretary of State had abandoned the objection that the claims were academic. The central issues concerned automatic review, procedural safeguards, the effect of section 29 detention, and the Tribunal’s discharge criteria.

1. Declarations of incompatibility refused. Article 5(4) gives a detained person the right to take proceedings to challenge the lawfulness of detention. It does not require an automatic review where no application is made. The Strasbourg authorities recognised that periodic review may be unnecessary where the detainee can institute proceedings at reasonable intervals. Section 2 detention is inherently short: the patient may apply to the Tribunal within 14 days and must ordinarily be released after 28 days under section 2(4).
2. The absence of capacity does not alter that conclusion. Article 5(4) may require special procedural safeguards, but the relevant safeguards depend on the kind of deprivation of liberty and its circumstances. Automatic release after 28 days was a sufficient safeguard in the context of section 2 detention. Reliance on the Secretary of State’s discretionary reference power under section 67 alone would not suffice, but that was not the statutory scheme’s only safeguard.
3. Section 29(4) was compatible with articles 5(1) and 5(4). The County Court, as a public authority, had duties under sections 3 and 6 of the Human Rights Act 1998 to determine section 29 applications speedily and prevent indefinite or lengthy detention. The statutory safeguards included release following disposal of the application, a maximum further seven days’ detention, and later Tribunal rights if the patient entered treatment or guardianship. Any incompatibility caused by undue delay would result from the County Court’s breach of its Convention duties, not from the legislation itself.
4. The second Winterwerp criterion was satisfied because the section 25 certificate recorded an objective medical assessment that release would create a danger to the patient or others. Without such a certificate, the nearest relative could obtain discharge under section 23 and section 29(4) would have no operative effect.
5. The Tribunal’s decision was lawful. Applying Reid and R (H) v North and East Region Mental Health Review Tribunal, the discharge criteria correspond to the statutory criteria for admission. Parliament expressly included dangerousness in section 72(1)(b)(iii), but omitted it from section 72(1)(a). That omission was deliberate. Dangerousness was therefore a permissible consideration, not a mandatory criterion for discharge of a section 2 patient. Huzzey, concerning the managers’ discretionary powers under section 23, did not govern the Tribunal’s statutory task.
6. The judicial review claim and all claims for declaratory relief were dismissed.