Citation:  ECHR 1008
Summary: This decision is the outcome of the challenge to the House of Lords’ decision in R (MH) v Secretary of State for Health  1 AC 441. MH was an adult severely disabled by Down’s syndrome who lived with her mother. She was removed by execution of a warrant under section 135 of the Mental Health Act 1983 and detained for assessment which she did not challenge within 14 days of admission. As nearest relative, her mother’s application for discharge was barred and proceedings to displace her commenced after she objected to a proposed guardianship order. The consequence was to automatically extend the detention period until those proceedings were concluded, with no interim right to an Article 5(4) review. The Health Secretary exercised her discretionary power to refer the case to the tribunal which decided not to discharge the patient. As a result, MH was detained for almost 6 months rather than the maximum 28 days and she argued that Article 5(4) was violated as the right to challenge her detention was ineffective if she lacked the ability to instruct solicitors.
The House of Lords had held that Article 5(4) did not require every case to be considered by a court and that the scheme was “capable of being operated compatibly” (para 28). It required “every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so” (para 24). 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” (para 30).
Eight years later, the European Court of Human Rights held that MH’s Article 5(4) rights were violated in relation to the initial 28 days of detention but not thereafter. In so deciding, it summarised the following principles, which in our view are equally applicable to detention under the Mental Capacity Act 2005:
(a) An initial period of detention may be authorised by an administrative authority as an emergency measure provided that it is of short duration and the individual is able to bring judicial proceedings “speedily” to challenge the lawfulness of any such detention including, where appropriate, its lawful justification as an emergency measure;
(b) Following the expiry of any such initial period of emergency detention, a person thereafter detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;
(c) Article 5(4) requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;
(d) The judicial proceedings referred to in Article 5(4) need not always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation;
(e) Special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.
The Court accepted that for those with “legal capacity”, the right to apply to the tribunal within the first 14 days satisfied Article 5(4). However, in this case, she lacked “legal capacity,” such that:
“81. In the case of Winterwerp, cited above, § 60, the Court held that it was essential for the patient to have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation; that mental illness could entail restricting or modifying the manner of exercising that right, but could not justify impairing its very essence; and that special procedural safeguards might be called for in order to protect the interests of persons who, on account of their mental disabilities, were not fully capable of acting for themselves.
82. As the right set forth in Article 5 § 4 of the Convention is guaranteed to everyone, it is clear that special safeguards are called for in the case of detained mental patients who lack legal capacity to institute proceedings before judicial bodies. However, it is not for this Court to dictate what form those special safeguards should take, provided that they make the right guaranteed by Article 5 § 4 as nearly as possible as practical and effective for this particular category of detainees as it is for other detainees. While automatic judicial review might be one means of providing the requisite safeguard, it is not necessarily the only means.
86 … Neither the applicant nor her mother acting as her nearest relative was able in practice to avail themselves of the normal remedy granted by the 1983 Act to patients detained under section 2 for assessment. That being so, in relation to the initial measure taken by social services depriving her of her liberty, the applicant did not, at the relevant time, before the elucidation of the legal framework by the House of Lords in her case, have the benefit of effective access to a mechanism enabling her to “take proceedings” of the kind guaranteed to her by Article 5 § 4 of the Convention. The special safeguards required under Article 5 § 4 for incompetent mental patients in a position such as hers were lacking in relation to the means available to her to challenge the lawfulness of her “assessment detention” in hospital for a period of up to twenty-eight days.
93 … When a mental patient is not fully capable of acting for herself on account of her mental disabilities, by definition the compensatory safeguards to which the State might have recourse in order to remove the legal or practical obstacles barring such a person from being able to benefit from the procedural guarantee afforded by Article 5 § 4 may well include empowering or even requiring some other person or authority to act on the patient’s behalf in that regard. ” (emphasis added
MH did not make a claim for any financial compensation.
Comment: This decision is clearly of significance in respect of those detained under both the 1983 and 2005 Acts. It is unfortunate that the Court loosely invokes the term lacking “legal capacity” throughout its judgment. There is a danger of wrongly equating this with lacking the mental capacity to litigate which may not have been what the Court was intending. Indeed, the Court does appear at para 84 to differentiate “incompetence” from “legal capacity” when it observed: “An incompetent patient such as the applicant could not make a section 66(2)(a) application to the Tribunal for discharge because she lacked legal capacity…”. The reality is that, as Lady Hale observed at para 26 of the judgment of the House of Lords, “the threshold for [mental] capacity is not a demanding one” when it comes to applying to the tribunal.
If ever there were any doubt, this decision makes clear that the internal DoLS review process by the Local Authority would not satisfy the requirements of Article 5(4). It lacks the necessary judicial character and fails to afford detained residents the appropriate guarantees. Indeed, there appears to be very little in the way of procedure governing the undertaking of such reviews. Clearly the principal Article 5(4) guarantee is the availability of the Court of Protection.
Where someone is deprived of their liberty and lacks litigation capacity, whether that be in a hospital, care home, supported living, education residential establishment, or elsewhere, para 93 of the MH decision becomes key and is likely to be closely analysed in future Court of Protection cases. Expecting the State to empower or require another person or authority to act on the incapacitated person’s behalf to secure the procedural Article 5(4) guarantee is clearly significant. It reinforces Mr Justice Peter Jackson’s comment in Neary that “there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court.” But who will take on that role and who will pay for it regrettably remains to be seen.
Finally, the fact that Article 5(4) does not require an automatic review by a Court is of interest. Must Court of Protection proceedings be initiated where, for example, it is difficult to ascertain the wishes and feelings of someone deprived of their liberty? Should their representative err on the side of caution and make an application? What if the person is vehemently expressing a wish to challenge their detention with utterly hopeless prospects of success? Should their wish suffice in order to protect their Article 5(4) rights? We await a forthcoming Court of Appeal decision which, it is hoped, will address some of these issues. In the meantime, however, MH would certainly appear to support erring on the side of caution.