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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C, R (on the application of) v Mental Health Review Tribunal London South & South West Region  EWCA Civ 1110 (3 July 2001)
Cite as:  Lloyd's Rep Med 450, (2001) 4 CCL Rep 284,  WLR 176,  EWCA Civ 1110,  1 WLR 176,  2 FCR 181
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE SCOTT BAKER)
Tuesday 3 July 2001
B e f o r e :
LORD JUSTICE JONATHAN PARKER
|IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW|
|T H E Q U E E N|
|(On the application of C)|
|- v -|
|THE MENTAL HEALTH REVIEW TRIBUNAL|
|LONDON SOUTH AND SOUTH WEST REGION|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0207 421 4040
Fax: 0207 831 8838
Official Shorthand Writers to the Court)
MISS N LIEVEN (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
Crown Copyright ©
"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."
(i) the application raised a point of public general importance; and
(ii) the point might prove of more than academic interest to C who suffers from schizophrenia. There is at least a risk that he may find himself again detained under the MHA in the future.
THE LEGAL FRAMEWORK - The MHA
".... to consider the patient's mental condition at the time when it considers his application and to consider whether the type of care which has been provided by the use of compulsory powers is most appropriate to his present needs or whether any alternative form of care might now be more appropriate or whether he could now be discharged from care altogether."
(i) written recommendations from two registered medical practitioners, one being approved for the purpose (section 3 (3));
(ii) seen the patient to be admitted within the 14 days prior to admission (section 11(5));
(iii) consulted with the nearest relative and ascertained that the nearest relative does not object (section 11(4)). Where the nearest relative does object, as in this case, there is a procedure for displacing the nearest relative under section 29, to which I refer below.
"Regional Chairmen in England have agreed a policy in connection with the listing of applications for a Tribunal hearing in the case of all applications with a view to avoiding unacceptable delays. The policy, which has been applied since early this year, is that all applications by, or on behalf of, patients detained under s.3 of the 1983 Act are listed for hearing on a date within eight weeks of the receipt of the application."
"Patients admitted under section 3 have a right to appeal immediately to the MHRT. There is no statutory period in which appeals are to be heard, but there is an administrative guideline agreed between MHRT and the Department of Health whereby appeals are to be listed for hearing not more than eight weeks after the date of the application. This guideline period is not arbitrary and is consistent with the following considerations",
"As you will be aware there is no statutory time scale laid down for Section 3 applications to be listed for hearing. However the Department of Health and the Council on Tribunals have agreed a target time scale of 8 weeks from date of receipt of application/reference, which has been agreed with the European Court as a reasonable target. The tribunal office will seek to meet this agreed target for all section 3 cases, until such time as this is deemed to be inappropriate by a higher court."
(1) Where an application is made by a patient detained under section 3 of the MHA, the nature of the proceedings necessitates a significant interval between the application and the hearing.
(2) The Strasbourg Court could not conceivably hold that a delay of no more than eight weeks between application and hearing failed to satisfy the Article 5(4) requirement of a speedy hearing.
(3) Although it is possible that in some cases a satisfactory hearing might be achieved in less than eight weeks, it is impossible, when fixing dates, to identify such cases.
(4) To differentiate between different cases when listing for hearing would constitute unfair discrimination.
The Strasbourg Jurisprudence
"While some hesitation may be felt as to the need for such confinement to continue for as long as six weeks, the period is not so excessive as to render the detention unlawful."
"The Court observes that the issues submitted to a court in the context of such challenges of the 'lawfulness' of a deprivation of liberty as are the subject of this case, are often of a more complex nature than those which have to be decided when a person detained in accordance with Article 5(1)(c) is brought before a judge or other judicial officer as required by paragraph 3 of the Article. Indeed, the notion of 'promptly' (aussitôt) in the latter provision indicates greater urgency than that of 'speedily' (à bref délai) in Article 5(4). Even so, a period of approximately eight weeks from the filing of summons to judgment does appear, prima facie, difficult to reconcile with the notion of 'speedily'. However, in order to reach a firm conclusion, the special circumstances of the case have to be taken into account."
(i) a delay of 12 days attributable to the fact that the judge was on holiday;
(ii) a delay of three weeks between the hearing and the pronouncement of that decision.
"It remains to be established whether these periods comply with the requirement of Article 5(4) that decisions be taken 'speedily'. In the Court's view, this concept cannot be defined in the abstract; the matter must - as with the 'reasonable time' stipulation in Article 5(3) and Article 6(1) (see the established case law) - be determined in the light of the circumstances of each case."
"the Convention requires the Contracting States to organise their legal systems so as to enable the Courts to comply with its various requirements."
"....the question whether Article 5(4) has been complied with and the hearing fixed speedily before the tribunal is a question that has to be looked at in the context of practical reality and what is involved in section 3 detention."
"What is required is speed and justice. What this involves, in my judgment, is getting all the relevant material before the tribunal as quickly as possible. Put another way, undue haste is not a requirement of Article 5(4). As the foreword to the annual report of the Mental Health Review Tribunals for England and Wales, 1995, put it:
'The principal concern of the Mental Health Review Tribunal is to provide a speedy, fair and effective means by which detained patients may challenge the need for restrictions that have been imposed upon them.'
It is critical that the tribunal has relevant information and people before it when it makes its decision; then it can make a considered judgment."
"(1)(b)(i).... he is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is not necessary for the health and safety of the patient or for the protection of other persons that he should receive such treatment."
(a) giving notice of the proceedings to other interested parties (Rule 7);
(b) instructing representatives (Rule 10);
(c) disclosure of documents (Rule 12);
(d) further directions (Rule 13).