MH v Secretary of State for the Department of Health & Ors

The House of Lords allowed the Secretary of State's appeal and set aside declarations of incompatibility made by the Court of Appeal in respect of sections 2 and 29(4) of the Mental Health Act 1983. The court held that article 5(4) ECHR requires detained persons to have a practical and effective right to "take proceedings" but does not require automatic judicial consideration in every case. Sections 2 and 29(4) of the 1983 Act can be operated compatibly with article 5(4) provided that reasonable steps are taken to enable patients (including those lacking capacity) to exercise their rights, for example by the duties on hospital managers under section 132, by the Secretary of State's power of reference under section 67, and by available remedies such as judicial review or habeas corpus where appropriate.

The court emphasised the relevance of the standards set out in Winterwerp and that mental health review tribunals are designed to provide accessible and speedy review. It concluded that section 2 is not in itself incompatible with article 5(4) and that although section 29(4) presents risks if court proceedings drag on, it is not in principle incompatible because other mechanisms exist to secure timely review.

This judicial review concerned MH, a severely mentally disabled woman detained under section 2 of the Mental Health Act 1983 following an executed warrant under section 135. Proceedings were brought challenging the compatibility of sections 2 and 29(4) of the 1983 Act with article 5(4) of the European Convention on Human Rights.

Background and parties:

• Respondent: MH, represented by her litigation friend (initially her mother, later the Official Solicitor).
• Appellant: Secretary of State for the Department of Health.
• Facts: MH was detained for assessment under section 2; county court proceedings were commenced under section 29 to appoint an acting nearest relative; the detention period under section 2 was extended by operation of section 29(4) pending disposal of those proceedings.

Procedural history:

• Judicial review proceedings were launched in May 2003.
• The Court of Appeal ([2004] EWCA Civ 1609; [2005] 1 WLR 1209) declared sections 2 and 29(4) incompatible with article 5(4).
• The Secretary of State appealed to the House of Lords ([2005] UKHL 60).

Relief sought: Declarations of incompatibility under the Human Rights Act 1998 in respect of section 2 and section 29(4) of the Mental Health Act 1983 for failure to provide an effective Article 5(4) right of access to a court for persons detained under section 2 who lacked capacity, and for those whose detention was extended by operation of section 29(4).

Issues framed:

• Whether section 2 of the 1983 Act is incompatible with article 5(4) because it does not secure a practical and effective right of access to a court for patients who lack capacity to apply to a mental health review tribunal.
• Whether section 29(4) is incompatible with article 5(4) because it can leave patients detained after the 28 day assessment period without a review at reasonable intervals.

Court’s reasoning and conclusions:

• Article 5(4) guarantees the right to "take proceedings"; it does not necessarily require that every detention be referred to a judicial body automatically. The distinction between a right to "take proceedings" and a right to "be brought promptly before a judge" is significant.
• For patients who lack capacity, the system must make "every sensible effort" to enable the exercise of the right to take proceedings. This includes the statutory duty on hospital managers under section 132 to explain rights, the practical accessibility of mental health review tribunals, and the ability of relatives, professionals or others to apply on a patient's behalf.
• The Secretary of State's discretionary power under section 67 to refer cases to a tribunal, together with remedies of judicial review and habeas corpus, provide means by which a patient detained under section 29(4) can secure a timely review. If the Secretary of State declines to refer, judicial review can require her to exercise the power compatibly with Convention rights.
• The House of Lords therefore found that neither section 2 nor section 29(4) is in itself incompatible with article 5(4), and allowed the appeal, setting aside the Court of Appeal's declarations.

Wider context: The court noted that the problem is rare but may arise more often; tribunals are better placed than county courts or the administrative court to give speedy and patient‑oriented review. The judgment emphasised procedural safeguards, the Code of Practice and statutory duties aimed at making rights effective.

Appeal allowed. The House of Lords held that neither section 2 nor section 29(4) of the Mental Health Act 1983 is in itself incompatible with article 5(4) ECHR. Article 5(4) requires a practical and effective right to take proceedings but does not mandate automatic judicial consideration in every case; obligations on hospital managers under section 132, the Secretary of State's power to refer under section 67, and available remedies such as judicial review or habeas corpus ensure that the statutory scheme can be operated compatibly.

Appeal from the Court of Appeal, which had declared sections 2 and 29(4) of the Mental Health Act 1983 incompatible with article 5(4) (see [2004] EWCA Civ 1609; [2005] 1 WLR 1209). The House of Lords allowed the Secretary of State's appeal ([2005] UKHL 60). Prior proceedings: judicial review commenced May 2003 in the Administrative Court; county court proceedings under section 29 were also litigated (see Lewis v Gibson [2005] EWCA Civ 587).