R (on the application of Modaresi) v Secretary of State for Health

The Secretary of State’s power under section 67(1) of the Mental Health Act 1983 remains subject to ordinary public law principles and Convention rights. It does not become a duty to refer merely because a patient’s earlier tribunal application was wrongly rejected.

Where the patient has a current and effective right to seek speedy review of detention under section 66, article 5(4) does not require a section 67 reference to preserve a possible further application. The discretion must nevertheless be exercised so as to prevent a future breach of article 5(4). The position may differ where a patient has lost immediate tribunal access through the fault of a state body and has no alternative right of application.

The appellant, a detained mental health patient, delivered an application for tribunal review while detained for assessment under section 2 of the Mental Health Act 1983. Hospital staff transmitted it after the New Year holiday, and the tribunal wrongly rejected it as late. By then she had become detained for treatment under section 3 and had acquired a fresh right to apply to the tribunal.

The Secretary of State declined her request for a reference under section 67, relying on that fresh right. The High Court dismissed her judicial review claim. The Court of Appeal dismissed her appeal in [2011] EWCA Civ 1359, although it held that the original application had been in time.

The central issue was whether public law or article 5(4) required the Secretary of State to make a section 67 reference after the original application had been wrongly rejected.

1. Appeal dismissed unanimously. Lord Carnwath, with whom Lord Neuberger, Lord Wilson and Lord Sumption agreed, held that the Secretary of State’s refusal was lawful and reasonable. Lady Hale agreed with the disposition and Lord Carnwath’s reasons.
2. Section 67(1) of the Mental Health Act 1983, although expressed in broad terms, is governed by the statutory purpose, ordinary public law principles and the obligation to act compatibly with Convention rights. In the circumstances, however, article 5(4) did not turn the discretion into a duty. The appellant had not been deprived of access to a tribunal because her detention under section 3 gave her a current right of application. She could seek an urgent hearing, whereas a section 67 reference carried no seven-day hearing requirement and was unlikely to provide a speedier route.
3. The potential loss of a further patient-initiated application did not make the refusal unlawful. If a later need for another review arose, the Secretary of State would have to reconsider a section 67 reference. That discretion would be underpinned by his duty to avoid a breach of article 5(4). The position might have differed if the patient had remained detained under section 2 and, through the fault of the trust, had lost her only right of immediate tribunal access. That question did not arise for decision.
4. The Secretary of State was entitled to proceed upon the tribunal’s procedural decision that the original application was late. He had no duty to perform the work of the patient’s legal advisers or independently second-guess a competent tribunal where review and appeal procedures were available. In any event, recognition that the original application was timely would have shown that tribunal access existed throughout.
5. Lady Hale added that hospitals should maintain systems ensuring that applications handed to staff are transmitted without delay. A failure depriving a detained patient of statutory tribunal access may breach Convention rights. She also confirmed that where a statutory deadline expires while the relevant court office is closed, time extends to the next day on which it is open.

1. United Kingdom Supreme Court: Dismissed the appeal and upheld the Court of Appeal’s conclusion that the Secretary of State’s refusal was lawful.
2. Court of Appeal: In [2011] EWCA Civ 1359, dismissed the appeal. It held that the original tribunal application was in time, but that the Secretary of State had no separate duty to verify the deadline and had lawfully relied on the appellant’s right to apply following detention under section 3.
3. High Court: In [2011] EWHC 417 (Admin), dismissed the judicial review claim. It held that the tribunal had correctly treated the application as late, that the Secretary of State’s refusal was lawful, and that the trust’s isolated failure did not breach article 5(4).