MH (by her litigation friend, Official Solicitor) (FC) (Respondent) v. Secretary of State for the Department of Health (Appellant) and others

Article 5(4) of the European Convention on Human Rights gives a detained patient a practical and effective right to take proceedings. It does not require automatic judicial review of every detention where the patient lacks capacity. Sensible efforts must instead be made to enable the patient to exercise the right.

A statutory detention scheme is not incompatible merely because maladministration or delay could produce a breach. Prolonged detention pending proceedings to replace a nearest relative may require access to a tribunal. A reference by the Secretary of State is the preferable remedy, backed by judicial review if necessary.

MH, a woman with severe mental disability, was admitted for assessment under section 2 of the Mental Health Act 1983. Her mother sought her discharge and opposed a proposed guardianship application. Proceedings to appoint an acting nearest relative extended MH's detention under section 29(4).

Silber J refused declarations that sections 2 and 29(4) were incompatible with article 5(4) of the European Convention on Human Rights. The Court of Appeal, in [2004] EWCA Civ 1609, [2005] 1 WLR 1209, made declarations concerning patients unable to apply to a tribunal and patients whose detention was extended under section 29(4). The Secretary of State appealed.

The central issue was whether the legislation itself failed to secure a practical right to challenge detention speedily and, where detention continued, at reasonable intervals.

1. Appeal allowed unanimously. Baroness Hale delivered the leading speech. Lord Bingham, Lord Hope, Lord Rodger and Lord Brown agreed with it. The declarations that sections 2 and 29(4) of the Mental Health Act 1983 were incompatible with article 5(4) were set aside.
2. Per Baroness Hale, article 5(4) gives a detained person a right to take proceedings. Its wording differs deliberately from article 5(3), which requires an arrested person to be brought promptly before a judge. Article 5(4) therefore does not require judicial consideration of every mental-health detention. Where a patient may wish to challenge detention but lacks the ability to act unaided, every sensible effort must be made to enable the exercise of the right.
3. Section 2 was compatible. Hospital managers must take practicable steps to explain the patient's tribunal rights and the available assistance. An application may be signed by a person authorised by a patient possessing the modest capacity required. Relatives, professionals and others can assist, and the Secretary of State may refer a case. Lack of capacity was only one of several possible obstacles to effective access and did not justify an automatic-reference requirement unsupported by the Convention.
4. Article 5(4) also requires review at reasonable intervals because mental disorder may change. Section 29(4) can nevertheless operate compatibly. A prompt displacement decision can lead either to release or to a fresh admission carrying a new tribunal right. If proceedings become prolonged, continued detention without tribunal access may violate article 5(4), particularly where no initial review occurred.
5. The preferable safeguard against such a violation is a reference by the Secretary of State under section 67(1). The Secretary of State must act compatibly with Convention rights and should refer the case once the risk is brought to her attention. A refusal can be challenged promptly by judicial review. Habeas corpus or judicial review may also examine detention, although the specialist tribunal is more accessible and better equipped to determine its merits.
6. A statutory provision capable of being operated compatibly is not itself incompatible merely because action or inaction by public authorities under it may breach Convention rights.

1. House of Lords: The Secretary of State's appeal was allowed unanimously. The declarations of incompatibility were set aside: [2005] UKHL 60.
2. Court of Appeal: The court allowed MH's appeal and declared sections 2 and 29(4) of the Mental Health Act 1983 incompatible with article 5(4): [2004] EWCA Civ 1609, [2005] 1 WLR 1209.
3. High Court: Silber J declined to declare either provision incompatible. No citation is stated in the judgment.