MN, R (on the application of) v Mental Health Review Tribunal

A tribunal application made under section 70 of the Mental Health Act 1983 does not remain effective when the patient ceases to be a restricted patient. The statutory scheme treats restricted and non-restricted patients as distinct categories, with different application periods and procedural requirements. The application therefore lapses as a matter of law. Section 69(2)(a) provides the separate route for an application after the restriction ends. A tribunal may operate an administrative practice treating the former section 70 application as a section 69(2)(a) application to avoid delay, but that practice does not alter the statutory position. This interpretation is compatible with article 5(4) of the European Convention on Human Rights.

MN, a patient detained in a secure hospital under sections 47 and 49 of the Mental Health Act 1983, applied to the Mental Health Review Tribunal under section 70. During the detention, the operative part of the sentence partly expired and MN ceased to be a restricted patient. The tribunal determined that his section 70 application had ceased to have effect.

MN sought judicial review, arguing that the application remained live or should continue under section 69(2)(a). The central issue was whether a section 70 application survives a change from restricted to non-restricted status.

1. The claim was dismissed. Permission to appeal was refused, with any application for permission to be made to the Court of Appeal. Legal Services Commission assessment was granted, and costs were ordered subject to section 11 of the Access to Justice Act.

2. Section 70 of the Mental Health Act 1983 confers the periodic right to apply on a patient who is a restricted patient. Section 41(5) provides that, when the restriction order ceases while the hospital order remains in force, the patient is treated as admitted under an ordinary hospital order from the date on which the restriction ended. The change operates from that date.

3. The statutory scheme does not contemplate patients moving fluidly between the restricted and non-restricted regimes. The application periods differ. The procedural rules also differ, particularly because the Secretary of State must provide information in proceedings concerning a restricted patient under rule 6 of the Mental Health Tribunal Rules 1983. It would be unreal to treat the section 70 application as continuing while removing the Secretary of State’s mandatory role.

4. The decision in R v South Thames Mental Health Review Tribunal ex p M (CO/2700/1997) was not inconsistent. It concerned a change between sections 2 and 3, where the application rights and participation rules were materially similar. The reasoning in R (on the application of SR) v Mental Health Review Tribunal (CO/1738/2005), particularly the interpretation of section 72(4A) and the concern that successive applications could circumvent statutory time limits, supported the conclusion.

5. Section 69(2)(a) supplies the relevant six-month application period for a patient treated as subject to an ordinary hospital order under section 41(5). If the former section 70 application remained effective, section 69(2)(a) would serve no purpose. The tribunal’s practice of treating the former application as one under section 69(2)(a) was therefore a lawful mechanism to avoid delay, although the original section 70 application had lapsed.

6. That construction was consistent with article 5(4) of the European Convention on Human Rights because the statutory scheme continued to provide access to an independent and impartial tribunal for regular review within a reasonable time.

First-instance judicial review proceedings. The court refused permission to appeal, directing that any application for permission be made to the Court of Appeal.