Website of the Department of Health

R (on the application of Colonel Munjaz) and the Mersey Care NHS Trust - DH briefing on the Court of Appeal judgement 2003

Gateway reference 2520.

[Interested parties  -
The Secretary of State for Health (1)
The Mental Health Act Commission (2)
The National Association for Mental Health Mind (MIND) (3).]

Judgement Decision

The Court of Appeal judgement was handed down on 16 July 2003 on R (on the application of Colonel Munjaz) and the Mersey Care NHS Trust.

Background

This appeal and another similar one (S v Airedale NHS Trust) concerned persons detained under the MHA and who were being nursed in seclusion and raised issues concerning the status of the Code of Practice, prepared by the Secretary of State under section 118 of that Act. 

Outcome

In its recent judgement on R (Munjaz) v. Mersey Care National Health Service Trust, the Court of Appeal has confirmed that the Mental Health Act 1983 Code of Practice should be observed by all to whom it is addressed unless they have good reason for departing from it in relation to an individual patient. The Court has also made clear that good reasons for particular departures may be identified in relation to an individual or to groups of patients who share particular well-defined characteristics, so that if a patient falls within that category there will be good reason for departing from the Code in his or her case. The Department considers it best practice for the reasons for any departure from the Code to be recorded. Further, it should be noted that the Mental Health Act Commission's policy is to treat unsubstantiated departures from the Code to be prima facie evidence of poor practice.

The Department, of course, accepts the Court of Appeal's ruling on the Code's status as authoritative and anticipates that the Court's judgement will assist in ensuring that the Code continues to play a central role in maintaining proper standards in the care and treatment of the mentally ill.

R (on the application of E) v Bristol City Council [2005] EWHC 74 (Admin) 23 February 2005

Gateway reference: 4606

Judgement

On 13 January 2005 the High Court handed down its judgment in this case, which concerned section 11 of the Mental Health Act 1983 ('the Act') and the circumstances in which an Approved Social Worker (ASW) must consult and/or inform the nearest relative of a patient when making or considering an application to detain the patient, or make them subject to guardianship under the Act

The whole judgement can be accessed at the link below.

Background

Under section 11(3) of the Act, an ASW making an application to admit a patient to hospital for assessment under section 2 must 'take such steps as are practicable' to inform the patient's nearest relative of the application and of the nearest relative's power of discharge under section 23(2)(a).    Under section 11(4), ASWs must consult the nearest relative before applying to admit a patient for treatment under ssection 3 or to guardianship, unless consultation is 'not reasonably practical' or would involve unreasonable delay.

In this case, the claimant asked her social services authority  for an undertaking that, in the event that they were considering an application under the Act, its ASWs would not consult or inform her nearest relative (a sister with whom she wished to have no contact.)   The authority (although sympathetic) felt that section 11 prevented them from giving this undertaking.    The claimant sought a declaration from the High Court that it would be unlawful for the authority or its ASWs to consult or inform her sister under sections 11(3) or (4) without her consent.

Outcome

The High Court made a declaration that it was not 'practicable' for the authority to carry out its duties under sections 11(3) or (4) to involve the nearest relative.     In doing so, the Court specifically rejected the advice in paragraph 2.16 of the Mental Health Act 1983 Code of Practice that 'Practicability refers to the availability of the nearest relative and not to the appropriateness of informing or consulting the person concerned.'

Implications

In the light of this judgment, the Department of Health accepts that the advice paragraph 2.16 of the Mental Health Act 1983 Code of Practice quoted above is no longer correct. In determining whether it is practicable to consult and/or inform the nearest relative under sections 11(3) and (4), ASWs may (and should) consider whether doing so would lead to a breach of the patient's rights under Article 8 of the European Convention of Human Rights (right to respect for private and family life). 

The Court suggested that this requires a balancing act to be performed.  On the one hand, Parliament clearly intended nearest relatives to have the opportunity of playing a significant role in the protection of the patient or otherwise acting in the patient's best interests.  ASWs should not, therefore, lightly invoke 'impracticality' as a reason for excluding them.   On the other hand, there may circumstances where involving the nearest relative would lead to an infringement of the patient's rights which could not be justified by the benefit of that involvement.  

The key factors support the finding in this case appear to have been that the patient had very strongly expressed the view that her nearest relative should not be involved, the fact that the nearest relative herself did not wish to be involved and the likelihood that her involvement would have been distressing to the patient.     It is also arguable that the issue might arise in other circumstances, for example where the nearest relative is known intensely to dislike the patient and/or would not act in the patient's best interests or where the involvement of the nearest relative might adversely affect the patient's health (eg by causing the patient severe distress.) 

However, in the Department's view it is very unlikely that the fact that a nearest relative is expected to object to admission or to seek the patient's discharge would, of itself, make their involvement impractical and therefore relieve ASWs of the duty to inform or consult them.   Section 29 of the Act already provides mechanisms for displacing nearest relatives who exercise their powers to object and/or discharge unreasonably.

• View judgement EWHC 74 (Admin) (opens new window)

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

Gateway reference: 4277

Judgement

On 3 December 2004, the Court of Appeal handed down its judgment in this case, which concerned the rights of certain patients detained under section 2 of the Mental Health Act 1983 to have their detention reviewed by the Mental Health Review Tribunal.   

The whole judgement can be accessed at the link below

Background

The case was brought on behalf of MH, a single woman in her 30s with severe learning disability as a result of Down's syndrome.  She was detained for assessment under section 2 of the Mental Health Act (MHA) 1983 on 31 January 2003.  Her doctor recommended that, upon discharge, she should be subject to guardianship under the Act.   However, no application for guardianship could be made because her nearest relative (her mother) objected.  The mother also sought her discharge under section 23 of the Act, but this was blocked by her doctors under section 25.  

The local authority applied to the county court to displace the mother as nearest relative under section 29 of the Act.    Sections 2 and 29(4) operate so that detention under section 2, which would otherwise end after 28 days, continues until the application for displacement of the nearest relative is determined.

A case was brought on her behalf in the High Court claiming that her rights under Article 5 (right to liberty) of the European Convention on Human Rights had been violated.   The two key questions in the case were (broadly speaking):

On 22 January 2004, the High Court found against the claimant, who then appealed.

Outcome

The Court of Appeal overturned the High Court's decision.  It found that there had been a violation of MH's rights under Article 5(4) and made a declaration of incompatibility under section 4 of the Human Rights Act 1998 as follows:

'(i) section 2 of the Mental Health Act 1983 is incompatible with article 5.4 of the European Convention on Human Rights in that it is not attended by adequate provision for the reference to a court of the case of a patient detained pursuant to section 2 in circumstances where a patient has a right to make application to a Mental Health Review Tribunal but the patient is incapable of exercising that right on his own initiative;

(ii) section 29(4) of the Mental Health Act 1983 is incompatible with article 5.4 of the European Convention on Human Rights in that it is not attended by provision for the reference to a court of the case of a patient detained pursuant to section 2 of that Act whose period of detention is extended by the operation of the said section 29(4).'

Implications of the judgment

The Department is considering what action to take in response to the judgment, including the possibility of an appeal.  However, pending an appeal or any remedial action, the declaration of incompatibility does not affect the continued operation of sections 2 and 29 of the Mental Health Act.   NHS trusts, local authorities and others should continue to act on the basis of the Act as it stands.

• View judgement [2004] EWCA Civ 1609 (opens new window)

HL v UK (Bournewood) - Interim Advice (10 December 2004)

Gateway reference 4269

The Department of Health has issued interim advice for the NHS and local authorities on the implications of this judgment.

• Download Bournewood interim advice (PDF, 39K)

HL v UK (Bournewood)

Gateway reference 4013.

Judgement Decision

On 5 October 2004, the European Court of Human Rights handed down its judgement on HL v UK.

The whole judgement can be accessed at the link below.

Background

The case concerned a man with autism and learning disabilities who was admitted to Bournewood Hospital for treatment for mental disorder, but who was not formally detained under the Mental Health Act 1983 because, although he lacked capacity to consent to treatment, he did not resist it.

Outcome

The Court found that Mr L had been deprived of his liberty for the purposes of the European Convention on Human Rights.   The Court found that the deprivation of liberty was unlawful under Article 5(1) of the Convention because of a lack of procedural safeguards surrounding his admission and continued deprivation of liberty.   

In the Court's view, the lack of such safeguards failed to protect Mr L against arbitrary deprivation of liberty.    In particular, although it did not question the good faith of the doctors involved, the Court was concerned that the common law allowed professionals to take 'full control of the liberty and treatment of a vulnerable patient solely on the basis of their own clinical assessments.'

The Court also found that there that had been a breach of Article 5(4) of the Convention, in that, at the time, judicial review did not provide the patient with an adequate means to challenge his deprivation of liberty. 

Implications of the judgment

The judgment does not concern the treatment and care of incapacitated patients generally.   It is concerned only with cases of deprivation of liberty. The Court has made clear that whether someone is, in fact, deprived of liberty depends on the particular circumstances of the case.  

The Government believes that the breach of Article 5(4) has since been addressed by the Human Rights Act 1998.   However, there remains a risk of further breaches of Article 5(1) in the absence of appropriate procedural safeguards.

In the Department's view, the judgement does not mean that it is automatically unlawful to admit incapacitated patients to hospital for mental health care informally.   Nor does it mean that such patients must invariably be admitted formally under the Mental Health Act (and in some cases that may not be legally possible).  But if informal admission amounts to deprivation of liberty, then additional procedural safeguards are needed to protect patients against arbitrary deprivation of liberty.

The Department intends to consult widely with interested parties with a view to bringing forward proposals for appropriate safeguards as soon as possible.

The Department also plans to provide a fuller note on the judgment for NHS trusts and local authorities shortly.

• For full text of ECHR judgement, search the ECHR's HUDOC database (opens new window)

The Amending Bill and Bournewood

The Bill will be used as the vehicle for introducing the Bournewood safeguards, through amending the Mental Capacity Act 2005. These safeguards respond to an ECHR judgment that an individual who lacked the capacity to consent to or refuse admission to hospital for treatment was deprived of his liberty  when he was admitted informally to Bournewood Hospital.  The safeguards will protect people who lack capacity and are deprived of their liberty but are not being treated under mental health legislation.

R (On the application of P) v SoS for the Home Department

Gateway reference 2621.

[Interested party - Secretary of State for Health]

Judgement Decision

On 11 December 2003, the Administrative Court handed down its judgement on R (On the application of P) v SoS for the Home Department

The whole judgement can be accessed at the link below.

Background

This judicial review concerned a discretionary life prisoner (P).  His 10 year tariff having expired, he had the right to have his case reviewed by the Discretionary Lifer Panel (DLP) of the parole board but only after a mental health review tribunal (MHRT) had decided in his favour.  P had the right to apply to the tribunal once a year. 

P argued that his continued detention, in accordance with section 34 of the Criminal Justice Act   1991, contravened his Art 5 ECHR rights as the DLP could be convened concurrently with a MHRT (instead of after the MHRT recommendation.)

Outcome

The judgement confirmed that the Home Secretary's policy of referring the cases of discretionary lifers to a DLP, only after a recommendation has been made by a MHRT, as correct. 

The fact that, on the expiry of his tariff, a discretionary life prisoner had no right to apply to the Parole Board and remained liable to detention as a lifer unless and until a MHRT board made a decision in his favour, did not infringe his rights under Article 5.  There was no requirement for mandatory joint hearings of mental health review tribunals and Discretionary Lifer Panels of the Parole Board.

It set out that, in applications by a restricted patient, a mental health review tribunal and the parole board served very different purposes. A tribunal was only concerned with risk due to mental disorder, but must consider risk to both the detained person and to other persons. On the other hand, the parole board was concerned with risk to persons other than the prisoner and irrespective of the cause of the risk.  There was not necessarily any breach of the requirement of a speedy hearing caused by successive hearings by a mental health review tribunal and a Discretionary Lifer Panel.  Whether the delay was acceptable had to be determined on the facts of each case.

• View judgement (opens new window)

R on the application of IH v SofS for the Home Department and SofS for Health

Gateway reference 2520.

[Interested parties -
(1) Mental Health Review Tribunal
(2) Nottinghamshire Healthcare NHS Trust]

Judgement Decision

In November 2003, the House of Lords handed down its judgement on R (on the application of IH) v SofS for Home Department and SofS for Health.

The whole judgement can be accessed at the link below.

Background

This appeal concerned a restricted patient to whom the tribunal granted a deferred conditional discharge in February 2000.  The discharge was not effected due to difficulties in securing supervision in the community.  A further tribunal ordered continued detention.  The appellant argued that his continued detention contravened his Art 5 ECHR rights because existing legislation did not ensure his discharge within a reasonable time.

Outcome

The judgement confirmed the powers of the Mental Health Review Tribunal in respect of the deferred conditional discharge scheme in the current Mental Health Act 1983. 

The appellant had not been detained in breach of Art.5(1)(e) European Convention on Human Rights and although there had been a breach of his right under Art.5(4) to have the lawfulness of his detention considered speedily he was not entitled to compensation. The conditional discharge regime under s.73 Mental Health Act 1983 was not incompatible with Art.5.

It set out that it is unnecessary in human rights terms for tribunals to have the power to compel third parties to comply with the terms of a deferred conditional discharge.  

• View judgement (opens new window)

R on the application of SSG and Liverpool City Council and SofS for Health: resolution of discrimination against same-sex partners in context of Nearest Relative under the present Act

Bodies appointing nearest relatives within the meaning of the Mental Health Act 1983 should note that a Consent Order was entered on Court files on 22 October 2002 regarding this issue.  The full text of the Consent Order can be found at the link below.

In summary, the claimant brought a judicial review against the decision that her same sex partner could not be her nearest relative for the purposes of the Act.  The Order uses s3 of the Human Rights Act to read s26 MHA compatibly with the Human Rights Act and therefore accommodate same sex partners within the list set out at s26(1) and update s26(6).

• Download Consent Order (PDF, 15K)