Mental health law briefing 206 – The incapacitated patient: Breach of article 5(4) of the European Convention on Human Rights: Mental Health Act 1983 and Mental Capacity Act 2005
The European Court of Human Rights handed down the decision in the case of MH v. UK  on 22 October 2013. MH is an adult with Down’s syndrome who lived with her mother who was her Nearest Relative. Her Down’s syndrome presented a severe disability which was continuing and not likely to improve. In 2003, a warrant was obtained under S.135 of the Mental Health Act 1983 which authorised her removal from the residence she shared with her mother and she was detained under S.2 of the Mental Health Act 1983, which authorised her detention in hospital for assessment up to 28 days.
Under the 1983 Act, her mother was her Nearest Relative which afforded her certain rights, including the right to request her daughter’s discharge, which she did.
The mother’s application for discharge was met by a “barring order “from the RMO under s 25 of the 1983 Act on the grounds that if discharged, the applicant would be likely to act in a manner dangerous to other persons or to herself.
Seven days before the expiry of the section authorising detention, MH’s mother was consulted about placing her daughter under a Guardianship Order. This gave the Local Authority through the Social Services, powers over her daughter including where her daughter should live and the care provision she should access. MH’s mother objected to the proposed Guardianship Order and so the Local Authority applied to the County Court to displace her as Nearest Relative so they could proceed with the Guardianship Order. The application for displacement of the Nearest Relative is governed by the 1983 Act.
The consequence of the application to displace the Nearest Relative was to automatically extend the detention period until the displacement proceedings were concluded (s. 29(4)). This meant that MH’s detention was automatically extended beyond the maximum 28 days described by statute (s.2) and pending the Court’s decision about displacement which could be an indefinite period.
Detention of a patient under S.2 gives rise to a right to apply for a review of detention to the First Tier Tribunal (Mental Health). The challenge should be made within 14 days of the date the section started. The right to apply for a review enshrines the right to liberty under Article 5 of the European Convention of Human Rights (ECHR) and the provision of such a right under the Act ensures that s.2 of the Mental Health Act is compliant with the Human Rights legislation.
In this case, MH lacked the mental capacity to decide whether or not to make such an application or whether or how to instruct a solicitor or legal representative to do so on her behalf.
Her inability to make a decision as to whether or not to make an application meant that she had no way of seeking a review of her detention. Arguably, this placed her in a different position to that of a person with mental capacity. Her rights in this situation could be considered to be quite different.
Furthermore, by operation of section 66(1) (g) and section 66(1)(i) of the 1983 Act, she was prevented from making such an application once the barring order had been made. In addition, after the Council’s application to the County Court, despite this being made after the 14 day period, the applicant had no further right to apply to the Tribunal.
The Secretary of State for Health exercised her discretionary power to refer the case to the Tribunal. MH was not discharged by the Tribunal, however.
MH’s mother issued Judicial Review proceedings against the Secretary of State for Health, the Tribunal and the Local Authority, acting as MH’s Litigation Friend. The County Court was later added as a party.
The compatibility of domestic legislation with Article 5(4) of the ECHR was raised.
Article 5(4) states:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness or his detention shall be decided speedily by a Court and his release ordered if the detention is not lawful”.
Legal arguments followed and the applicant sought 3 declarations of incompatibility of the 1983 Act with the Human Rights Act ie
It is not appropriate for the onus for making an application to the Tribunal to be on the patient, if the patient lacks capacity;
The barring order means that neither the patient nor the Nearest Relative have a right to apply to the Tribunal and;
When the Local Authority applies to displace the Nearest Relative (s.29 (1)), the 1983 Act (s.29 (4)) allows for the possible indefinite detention of the patient 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:
“(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).”
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.
The House of Lords held that Article 5(4) did not require every case to be considered by a Court and that “The system is obviously capable of being operated compatibly.” It required “every sensible effort should be made to enable the patient to exercise their right if there is reason to think that she would wish to do so”. In relation to the automatic extension of the time limit resulting from displacement proceedings, it held the Secretary of State “would be well advised to make [a Tribunal reference] as soon as the position is drawn to her attention…. Should the Secretary of State decline to exercise this power, judicial review would be swiftly available to oblige her to do so”.
In the present case, the Secretary of State had of course exercised her discretionary power to refer the case to the Tribunal.
MH appealed to the European Court of Human Rights and 8 years after the original decision, the European Court agreed with the Court of Appeal, at least in part.
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. The current position is that a person without mental capacity cannot access a right of review of their detention and this is not compatible with Article 5(4).
It was not agreed, however, 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, there is an opportunity to ask the Secretary of State to refer the case to Tribunal.
The principles which can be gleaned from the Judgment can be considered to be applicable to detention under both the Mental Health Act 1983 and the Mental Capacity Act 2005:
A short initial period of detention can be lawfully justified as an emergency measure provided the individual is able to bring judicial proceedings “speedily” to challenge the lawfulness of any such detention.(Wintwerp  and X v. the United Kingdom) 
Following expiry of an initial period of emergency detention, an individual detained for an indefinite period thereafter is in principle entitled to take proceedings “at reasonable intervals” before a Court to decide the “lawfulness” of the detention within the meaning of Article 5. Winterwerp, and Stanev v. Bulgaria) 
Article 5(4) requires the procedure for the review of the lawfulness of the detention to have a judicial character and to give the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. (Stanev)
The judicial proceedings need not always be accompanied by the same guarantees as those required under Article 6(1) for Civil or Criminal Litigation. It will be essential, however, that the individual concerned should have access to a Court and the opportunity to be heard, either in person or through representation. (Megyeri) 
Special procedural safeguards may be called for in order to protect the interests of individuals who are not fully capable of acting for themselves.( Winterwerp)
The local authorities in Cheshire West  argued that MH v. UK is not relevant because it did not focus on considering what a deprivation of liberty is and is concerned rather with what happens once someone is deprived of their liberty.
The decision in MH was handed down during the course of the hearing in Cheshire West and although it was not referred to in the judgement it must be considered to have significance in relation to a number of related issues and to create at least an arguable position in respect of DOLS and Article 5(4) i.e.:
Incapacitated adults need special procedural safeguards to protect their interests.
There must be proper independent scrutiny of the deprivation. The DOLS authorisation and the internal DOLS review process by the Local Authority arguably does not satisfy the requirements of Article 5(4). It lacks the necessary “judicial character and fails to give detained residents the appropriate guarantees. The principle Article (5(4) guarantee is the availability of the Court of Protection.
The Deprivation of Liberty Safeguards currently rely on an incapacitated adult making an appeal or having a friend or family member to do it for them. This would seem to fall foul of Article 5(4)
It will be crucial to appreciate that the interests of those, who on account of their mental disabilities are not fully capable of acting for themselves must be adequately protected.
Principles apply to both the Mental Health Act 1983 and Mental Capacity Act 2005
It should not be assumed that one regime is less restrictive than the other
The care plan imposes the restrictions
The care plan should be scrutinised to see if this can be safely altered to reduce the restriction so that there is no longer a deprivation of liberty
The framework for authorising a deprivation of liberty should be the best and least restrictive way of ensuring the assessment and treatment is provided
Care should be taken when considering the arrangements for detention under the Mental Health Act 1983 where the cases will be considered by the Tribunal if the patient lacks capacity to consent to admission and treatment and/or to make decisions about residence in the community
Proper access to independent scrutiny must be available
It remains to be seen how the Government intends to deal with the decisions in Cheshire West and MH and the report of the House of Lords Select Committee. New legislation to incorporate a robust safeguards framework is surely inevitable.
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 MH v. UK [(2013) ECHR1008]
 Winterwerp v. the Netherlands, judgment of 24 October 1979, (1979) 2 EHRR 387,
 X v. United Kingdom (1982) 4 EHRR 188
 Stanev v. Bulgaria [GC], (2012) 55 EHRR 22
 Megyeri v. Germany, judgment of 12 May 1992, (1993) 15 EHRR 584
 P v Cheshire West & Chester Council; P & Q v Surrey County Council  UKSC 19
1 See Healthcare Briefing March 2014 “What is deprivation of Liberty? The Supreme Court speaks”
2 See Healthcare Briefing – March 2014 Mental Capacity Act and Deprivation of Liberty Safeguards: House of Lords Review, Suggested Reform and Practical Implications
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