K v The Hospital Managers of the Kingswood Centre & Anor

Under section 25 of the Mental Health Act 1983, a nearest relative’s discharge order takes effect only when served in the manner prescribed by the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008. A fax sent to a hospital’s general number is not deemed service and does not start the 72-hour period. Time begins when the order is delivered to the authorised officer under regulation 3(3)(b)(i). The hospital need not devise a system for non-prescribed methods. Articles 5 and 8 ECHR do not require a different result where the domestic scheme is prescribed by law.

K, who lacked capacity and was detained under section 3 of the Mental Health Act 1983, was detained at the Kingswood Centre. His mother, as nearest relative, faxed a discharge order to the hospital’s general fax number. The order was not considered by the authorised officer until four days later, and the hospital refused discharge after a barring report was produced.

Burton J refused K’s application for habeas corpus. The appeal concerned whether the 72-hour notice period began when the fax reached the hospital’s fax machine or only when the order reached the authorised officer, and whether Articles 5 and 8 ECHR required the former approach.

1. Appeal dismissed. The Court of Appeal unanimously upheld Burton J’s refusal to grant habeas corpus. Lord Justice Ryder gave the substantive judgment; Mr Justice David Richards and Lord Justice Moore-Bick agreed.
2. The statutory scheme balances the importance of liberty against the protection of the patient and the public. The safeguards relating to detention cannot be treated as overriding the other purposes of the legislation.
3. Section 25 of the Mental Health Act 1983, read with section 32 and regulation 3(3) of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008, requires service by a prescribed method. Regulation 3(3)(b) provides disjunctive methods of service. Delivery under regulation 3(3)(b)(i) means delivery at the hospital to an officer authorised by the managers. It has the character of personal service. The deeming provisions in regulations 3(3)(b)(ii) and 3(6) apply to the prescribed postal route.
4. The court applied the approach in Re GK (Patient: Habeas Corpus) [1999] 1 MHLR 128, including the distinction between general service and specified statutory methods. A fax sent to a general hospital number is not a prescribed method and is not subject to a deeming provision. The 72-hour period therefore began only when the authorised officer received the order.
5. The hospital managers were not obliged to create a global system for every possible non-prescribed method, such as fax or email. Articles 5 and 8 ECHR did not require delivery to take effect regardless of the recipient, place or manner of delivery. The statutory scheme was prescribed by law, and no incompatibility with the Convention was alleged.

• Court of Appeal (Civil Division): On 23 October 2014, unanimously dismissed the appeal and upheld the refusal of habeas corpus.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Burton J refused K’s application for a writ of habeas corpus on 23 June 2014.