M, R (on the application of) v Homerton University Hospital NHS Trust & Anor

Under the Mental Health Act 1983, an application under section 29 to displace a nearest relative does not suspend the hospital’s power to seek admission for treatment under section 3. Section 2 and section 3 regimes are not mutually exclusive. The Act does not require section 29 proceedings to finish first or demand exceptional circumstances before concurrent detention powers are used. A preference for resolving the section 29 issue first is a matter of desirability, not a condition of legality. Where both regimes are lawful, regulated and subject to review, their concurrent use does not, without more, create a disproportionate interference with private life under Article 8.

The appellant was detained for treatment for severe atypical anorexia nervosa. Her mother, the nearest relative, sought discharge, and the hospital applied under section 29 to displace her for unreasonable objection. While interim section 29 orders and proceedings remained unresolved, the appellant was admitted under section 3. She challenged that concurrent regime by judicial review, arguing that section 3 could not be used until the section 29 proceedings were finally determined, absent compelling exceptional reasons. McCombe J refused permission to apply for judicial review. The Court of Appeal granted permission to appeal and considered whether the statutory scheme, read with Convention rights, prohibited section 3 detention while section 29 proceedings were pending.

1. Disposition. The Court of Appeal granted permission to appeal at the hearing but unanimously dismissed the appeal. Sir Peter Gibson agreed with Hallett LJ. Buxton LJ also agreed and added observations.
2. Statutory scheme. Hallett LJ held that the Mental Health Act 1983 contains no express prohibition on making a section 3 application while section 29 proceedings are pending. Section 2 concerns compulsory admission for assessment, subject to extension under section 29(4), whereas section 3 provides the more stringent treatment regime. The statutory powers are not mutually exclusive.
3. Effect of the earlier authority. The court applied the reasoning in R v Central London County Court & Ors ex parte L [1999] QB 1260 that section 29 proceedings may be concurrent with or subsequent to a section 3 application. The preference for resolving section 29 proceedings first was treated as a matter of desirability, not as a binding legal requirement. The Act contains no requirement for compelling or exceptional circumstances before the regimes operate concurrently.
4. Convention rights. The court relied on R (H) v the Secretary of State for Health [2006] 1 AC 441, which had found section 2 detention extended under section 29(4) compatible with Article 5.4. It was accepted that section 3 detention was also lawful and Convention-compatible. Concurrent reliance on the regimes therefore did not, without more, constitute a disproportionate interference with Article 8, particularly since the detention and treatment would remain the same and review was available.
5. Review mechanisms and practical effect. The section 3 criteria had already been considered by a Mental Health Review Tribunal, and the appellant could return to that tribunal. The parties could also return to the county court to progress the section 29 proceedings. Buxton LJ noted that section 67(1) provided a further route for referral of delay to a Mental Health Review Tribunal. The appeal was dismissed.

1. Court of Appeal (Civil Division): Permission to appeal was granted at the hearing. The appeal against refusal of permission to apply for judicial review was dismissed.
2. High Court, Queen’s Bench Division: McCombe J refused permission to apply for judicial review of the respondents’ decisions to detain the appellant under section 3 concurrently with detention extended under section 29(4).