Lawfulness of detention – mental health review tribunals – mental patients’ rights

Secretary of State for Justice v Rayner: CA (Civ Div) (Lords Justice Ward, Keene, Mr Justice Black): 12 March 2008

The appellant secretary of state appealed against a decision on the interpretation of section 75(1) of the Mental Health Act 1983 and article 5(4) of the European Convention on Human Rights. The respondent mental health patient (R) cross-appealed against the decision.

R, a schizophrenic, had been detained in hospital and had been subjected to hospital and restriction orders under sections 37 and 41 of the 1983 act. A mental health review tribunal later directed his conditional discharge under section 73 and he was duly released. However, the Secretary of State for the Home Department recalled R to hospital under section 42(3) in June 2005, but failed to refer his case to the tribunal within one month, as required by section 75(1). The referral was made in August 2005, and the tribunal was to fix a date for a hearing between five and eight weeks from the date on which the reference was made, as required by rule 29 of the Mental Health Review Tribunal Rules 1983. The initial date arranged for a hearing was postponed. The tribunal directed R’s conditional discharge at a hearing in October 2005.

R brought proceedings and claimed that the maximum of one month allowed under section 75(1) for the making of a reference by the secretary of state to the tribunal after the return of a patient to hospital was incompatible with the requirement of a speedy decision under article 5(4) of the convention, and that a declaration of incompatibility with the European legislation should be made.

The judge held that section 75(1) was compatible with article 5(4), and in giving his judgment stated that article 5(4) required an ‘immediate reference’ to the tribunal and that a case should be referred ‘at once’, and that in the circumstances the very last day that the secretary of state could lawfully have referred the case was six days after R was recalled. The judge also held that the restriction under section 75(1)(b), that a patient could apply directly to a tribunal only after six months had elapsed from his return to hospital, did not breach article 5(4) as the secretary of state’s duty to refer the patient’s case to the tribunal amounted to an automatic review procedure, which was sufficient to achieve compliance with article 5(4).

The secretary of state submitted that the trial judge erred in interpreting the obligation arising under article 5(4), and that there could have been no breach unless he had delayed a reference beyond one month. He also argued that it was not possible to lay down any quantified period of time that defined what was meant by a ‘speedy’ decision. R submitted that, if a reference by the secretary of state was to be capable of sufficing under article 5(4), it had to provide as effective and speedy a remedy as could have been achieved by the patient taking proceedings himself, which could have been immediate.

R also submitted that, in light of Rakevich v Russia (58973/00) [2004] MHLR 37 ECHR, Gorshkov v Ukraine (C67531/01) [2006] MHLR 32 ECHR and Kucheruk v Ukraine (2570/04) Unreported 6 September, 2007 ECHR, there was a need for a detained person to have direct access to the reviewing court, and automatic review no longer sufficed under article 5(4).

Held: (1) The secretary of state was generally not entitled to take the statutory maximum of one month before making a reference to the tribunal. Where the liberty of the subject was at stake, and where the action was to be seen as at least a principal method of getting the issue of the lawfulness of detention before a court, the concept of speediness required a more energetic and rapid approach. Further, as the detained person had no direct right to apply to a tribunal, it was all the more important that the secretary of state was to act with despatch. However, with regard to the immediacy of a referral, in practice it was dealt with on a case-by-case basis, as many factors could affect the timing of the hearing itself, Cottenham v UK Unreported ECHR considered. The European Court of Human Rights had refrained from spelling out a specific timeframe of general application when dealing with issues under article 5(4), Sanchez-Reisse v Switzerland (A/107) [1987] 9 EHRR 71 ECHR applied. The relevant test with regard to speed under section 75(1) was whether there had been a failure to proceed with reasonable despatch, having regard to all the material circumstances, R (on the application of C) v Mental Health Review Tribunal [2001] EWCA Civ 1110, (2002) 1 WLR 176 considered.

Although the trial judge had stated that an immediate reference was required, his conclusion that the latest the secretary of state could have made a referral was six days, was appropriate.

(2) In Rakevich, Gorshkov and Kucheruk, there had been no provision of the domestic law that required the authorities to act quickly to get the issue of the lawfulness of the detention before the courts. Further, there had been no sufficient domestic mechanism available by which a detainee could himself have challenged the legality of the detention. English domestic law gave greater protection to a patient, Rakevich, Gorshkov and Kucheruk distinguished. Such a patient had a direct right by means of judicial review to enforce the secretary of state’s duty under section 75(1) to make a reference to the tribunal, and the right to use judicial review or habeas corpus to mount a direct challenge to the lawfulness of the detention, R (on the application of H) v Secretary of State for Health [2005] UKHL 60, [2006] 1 AC 441 and X v UK Unreported 5 November, 1981 ECHR considered. The patient had direct access as of right to the courts and could obtain swift redress if he was being unlawfully detained. Therefore, the restriction under section 75(1)(b) did not infringe article 5(4).

Appeal dismissed, cross-appeal dismissed.

Jeremy Hyam (instructed by Treasury Solicitor) for the appellant; Paul Bowen (instructed by Needham Poulier & Partners) for the respondent.