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

This case concerns the lawful exercise of the Secretary of State's discretion under section 67(1) of the Mental Health Act 1983 to refer a detained patient's case to the First-tier Tribunal where the tribunal had previously declined to entertain the patient's application as out of time. The Supreme Court held that the Secretary of State's discretion is subject to ordinary public law constraints and the requirements of the Human Rights Act 1998, in particular article 5(4) of the European Convention on Human Rights, but that in the particular circumstances of this case there was no unlawful failure to exercise that discretion.

The critical reasons were that the appellant retained a separate right to apply under section 66(1)(b) in association with detention under section 3, so she was not deprived of access to a tribunal; section 67 could not guarantee a hearing within the seven-day time-limit applicable to a section 2 application; and the Secretary of State was entitled to proceed on the basis of the tribunal's initial procedural decision without being required to second-guess it. The court emphasised that different facts (for example where the patient remained detained under section 2 and had lost immediate access to a tribunal wholly through the fault of a hospital trust) might lead to a different conclusion, but that such a point did not arise on these facts.

Background and parties: The appellant, detained initially under section 2 of the Mental Health Act 1983, completed an application to the First-tier Tribunal under section 66(1)(a) within the 14-day period but the hospital failed to transmit it before a bank holiday; the tribunal treated the application as out of time. The appellant was subsequently detained under section 3 and solicitors asked the Secretary of State to refer the case under section 67(1). The Secretary of State refused and the appellant brought judicial review proceedings against the tribunal, the Secretary of State and the West London Mental Health NHS Trust.

Procedural history: Permission to apply for judicial review was granted by Cox J. Edwards-Stuart J dismissed the claims on 3 March 2011. The Court of Appeal dismissed the appeal on 23 November 2011 ([2011] EWCA Civ 1359), concluding that the tribunal should have treated the application as in time but that, on the facts, the Secretary of State had not acted unlawfully. The case proceeded to the Supreme Court on the question of general importance whether the Secretary of State could lawfully refuse a section 67 referral where the tribunal had unlawfully declined to hear a timely application and the patient requested referral.

Nature of the claim and relief sought: The appellant sought judicial review of (i) the tribunal's refusal to entertain her application as out of time, (ii) the Secretary of State's refusal to refer the matter under section 67, and (iii) the trust's failure to have arrangements to transmit applications promptly. Practically, the appellant sought a section 67 referral from the Secretary of State.

Issues before the court: (i) Whether, as a public authority under the Human Rights Act, the Secretary of State was obliged to exercise his section 67 discretion to refer where the tribunal had unlawfully declined to accept a timely application; (ii) whether article 5(4) ECHR and public law required referral in the circumstances; (iii) whether the Secretary of State's decision was vitiated by an error of law regarding the applicable time limit.

Reasoning and subsidiary findings: The court held that the appellant was not deprived of her right of access to a tribunal because she had a separate right to apply under section 66(1)(b) arising from detention under section 3. Section 67 does not enable the Secretary of State to secure the seven-day hearing applicable to section 2 applications and any speed advantage from a section 67 referral was not established on the evidence. The Secretary of State was not obliged to re-litigate a procedural determination made by a competent tribunal and could reasonably rely on that decision. The court observed that section 67 may assume a positive role in protecting Convention rights in other factual scenarios (for example where the patient remained under section 2 and had lost access to the tribunal through the fault of the trust), but declined to decide that point because it did not arise on the facts. The argument that the Secretary of State's decision was unlawful solely because of a shared error about the time limit was rejected as surprising and unhelpful to the appellant's case.

Outcome and implications: The Supreme Court dismissed the appeal. The judgment stressed the importance of appropriate hospital procedures and tribunal practice to avoid depriving detained patients of access to the tribunal, and noted that section 67 can be an important safeguard in other circumstances.

Appeal dismissed. The Court held that, although the Secretary of State's discretion under section 67(1) is subject to public law constraints and the Human Rights Act 1998 (notably article 5(4)), in the particular circumstances the appellant was not deprived of access to the tribunal because she retained a right to apply under section 66(1)(b) associated with detention under section 3; the Secretary of State was not obliged to refer under section 67 and was entitled to rely on the tribunal's procedural decision. The possibility that different facts might require referral was noted but not decided.

Permission for judicial review was granted by Cox J. Edwards-Stuart J dismissed the claims on 3 March 2011 ([2011] EWHC 417 (Admin)). The Court of Appeal dismissed the appeal on 23 November 2011 ([2011] EWCA Civ 1359). The present appeal to the Supreme Court was heard and dismissed on 24 July 2013 ([2013] UKSC 53).