Modaresi, R (On the Application Of) v Secretary of State for Health & Ors

A statutory time limit runs according to its statutory language. Where the Mental Health Act 1983 requires an application to be received within 14 days, a tribunal rule extending periods ending on non-working days does not enlarge that statutory period. Fax delivery remains possible on weekends and public holidays.

The Secretary of State may properly decline a discretionary reference while the patient retains a right to apply personally. A hospital trust’s isolated administrative oversight does not, without more, establish a breach of Article 5(4). The legality of the trust’s system must be assessed prospectively, by reference to what a reasonable hospital administrator could have adopted at the time.

The claimant was detained under section 2 of the Mental Health Act 1983 on 20 December 2010. She completed a tribunal application on 31 December, within the statutory period, but it was faxed from the hospital’s mental health administration office to the tribunal only on 4 January 2011, after the period had expired.

The tribunal treated the application as out of time. The claimant challenged that decision, the Secretary of State’s refusal to refer her case under section 67, and the hospital trust’s alleged failure to maintain a system protecting her Article 5(4) right to a speedy review. By the hearing, she had changed from section 2 to section 3 detention, and the Secretary of State had made a later reference.

1. Application to the tribunal. The claim against the First-tier Tribunal failed. Section 66(1) of the Mental Health Act 1983 required the application to be made within 14 days beginning with the day of admission. Paragraph 12 of the Tribunal Procedure Rules 2008 applied only to periods specified by the Rules, a practice direction or a direction. Paragraph 32 confirmed that a mental health application had to be received within the time specified in the Act.
2. The statutory period was not extended because its final day was a Sunday. The reasoning in Pritam Kaur v S Russell and Sons Ltd was inapplicable because the application could be delivered by fax when the tribunal office was closed. Barnes v St Helens Metropolitan Borough Council and Van Aken v Camden London Borough Council supported that conclusion. The claimant’s application, received on 4 January 2011, was out of time.
3. Secretary of State. The challenge to the refusal under section 67 also failed. By 7 January there was no power retrospectively to restore the lost right to a section 2 application heard within seven days. The claimant still had a right to apply under section 66(1)(b) as a section 3 patient. So long as that right remained available, her Article 5(4) rights were unimpaired. It was reasonable to defer any discretionary reference unless and until that application was unsuccessfully made and circumstances justified a further request.
4. Hospital trust. The claim against the Third Defendant failed. The missed transmission resulted from employee oversight or neglect. Such isolated conduct did not itself give rise to a public law remedy where a reasonable system was in place. The system had to be assessed prospectively. It was not unreasonable for the trust, believing that time was calculated by reference to when applications were made, not to receipt, to transmit applications through its ordinary administrative process. A daily check of the administrator’s office was not required.
5. The court left open any private law claim against the hospital trust. No determination was made on the existence of any contractual or other private duty.

First-instance judicial review in the Administrative Court. The claims against the First-tier Tribunal, the Secretary of State and the hospital trust were dismissed.