The case of MH v UK was decided in the European Court of Human Rights on 22 October 2013. The case concerned a woman (MH) with Down’s Syndrome.
In 2003 MH was detained under s.2 of the Mental Health Act 1983, which authorised her detention in hospital for assessment for up to 28 days. Her mother was her nearest relative for the purposes of the Act, which meant she had certain rights including the right to request her daughter’s discharge, which she did. The request was blocked by MH’s doctor by making as he considered that, if discharged, MH would be likely to act in a manner dangerous to other people.
Seven days before the expiry of the section, MH’s mother was consulted about placing her daughter under a guardianship order, which would have given social services certain powers, for example to choose where her daughter should live and what care she should receive. MH’s mother objected, and so social services applied to the County Court to displace her as nearest relative so they could proceed with the guardianship order. The effect of such an application to the County Court is that MH’s detention under s.2 is automatically extended beyond the usual 28 days pending the Court’s decision about the mother’s displacement, i.e. indefinitely.
Usually when a patient is detained under s.2 they have a right to apply for a review of their detention to the First Tier Tribunal (Mental Health). This has to be done within 14 days of the date the section started. This right is what makes depriving someone of their liberty compliant with the right to liberty under Article 5 of the European Convention of Human Rights (ECHR). MH, however, lacked the mental capacity to decide to make such an application or to instruct a solicitor to do so on her behalf. Due to her inability to make this application, she effectively had no route to seeking a review of her detention. This placed her in a different position, with effectively different rights, to that of a person with mental capacity. MH did subsequently have a Tribunal, following the Secretary of State directing a reference Tribunal, but she was not discharged.
MH’s mother, acting as her litigation friend, issued judicial review proceedings against the Secretary of State for Health, the Tribunal, and the council, later also adding the County Court. Various arguments were made against these public bodies although the only points ultimately pursued were against the Secretary of State and the Tribunal. These points were that certain sections of the Mental Health Act 1983 are incompatible with Article 5(4) of the ECHR because -
a) the onus for making an application to the Tribunal is placed on the patient, which is not appropriate if someone lacks capacity;
b) neither the patient nor the nearest relative have a right to apply to the Tribunal if the doctor bars the nearest relative’s request for discharge; and
c) when the council applies to displace the nearest relative, the Act allows for the indefinite detention of the patient in the interim without any right of appeal.
MH lost in the High Court and appealed to the Court of Appeal. The Court of Appeal made two declarations of incompatibility with the ECHR, on the basis that the current law allows for an imbalance in the way a patient with capacity is treated as against a mentally incapacitated patient, and as the indefinite extension of detention pending the outcome of County Court proceedings without recourse to review is clearly in breach of Article 5(4) (which says that “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”).
The Secretary of State appealed this decision to the House of Lords, which allowed the appeal and set aside the declarations made by the Court of Appeal. MH appealed to the European Court of Human Rights.
The European Courtagreed with the Court of Appeal in part. MH argued, and it was accepted, that special procedural safeguards are necessary to protect the interests of persons not capable of acting for themselves on account of their mental disabilities. As the law currently stands, a person without mental capacity cannot access a right of review of their detention, and this is therefore not compatible with Article 5(4).
However, the Court did not agree that extending a patient’s detention can only be Article 5 compliant if, at the same time, a right of access to the Tribunal is created, as it considered there is already a mechanism in place; the patient, or someone on their behalf, can ask the Secretary of State to refer their case to the Tribunal. The Court did not grapple with what happens if the patient is mentally incapacitated and does not have anyone to request this of the Secretary of State on their behalf.
It was not made explicitly clear why, in the first scenario, the Court found a breach but in the second did not, as in both situations a mentally incapacitated patient will be reliant on a friend or family member requesting the Secretary of State to organise a review of their detention. The main difference, as far as we can see, between the two situations is that in the first, a mentally incapacitated patient is being treated differently to one with capacity. In the second situation, both incapacitated and capacitated patients are treated equally (arguably equally unfairly as neither have a right to apply to the Tribunal), and this may be why the Court was not persuaded, although in our view this still places the incapacitated patient at a disadvantage.
The Government will now need to decide what it is going to do to bring the Mental Health Act into keeping with the ECHR. In the meantime we suggest that in individual cases the Secretary of State is requested to arrange a reference Tribunal (for those patients fortunate enough to have someone to instruct solicitors and/or make the request for them).
Could it have an impact on the DOLS?
The other interesting point arising from this case is the parallel with the current Supreme Court case concerning the deprivation of liberty safeguards (Cheshire West). The case was heard on 20, 21 and 22 October 2013 and we are now awaiting the Court’s judgment. The local authorities in Cheshire West argued that MH v UK is not relevant because it only deals with what happens once someone is deprived of their liberty, rather than considering what is a deprivation of liberty. However, what MH v UK makes clear is that incapacitated adults need special procedural safeguards to protect their interests. If the bar of what constitutes a deprivation of liberty is set too high, there will be many vulnerable adults in this country who will not benefit from the deprivation of liberty safeguards at all, and will be in a worse position even than MH. It also brings into question the operation of the deprivation of liberty safeguards themselves, which also currently rely on an incapacitated adult making an appeal, or having a friend or family member to do it for them.
Read the judgment: HERE
Posted on Friday, 25th October 2013