R(OK) v FTT and Cambian Fairview

Judge: Upper Tribunal (AAC) (Upper Tribunal Judge Jacobs)

Citation: [2017] UKUT 22 (AAC)


The Upper Tribunal has held with impeccable (some might say remorseless) logic that the principles set down by Lady Hale in R (H) v Secretary of State for Health [2006] 1 AC 441 apply equally to patients detained under s.3 MHA 1983 as they do to patients detained s.2 MHA 1983.  OK lacked capacity to apply to the FTT to challenge her detention.  Her solicitor sought to do so on her behalf, but the proceedings were curtailed when it emerged that she had lacked the relevant capacity.  She then applied to the Upper Tribunal (AAC) to judicially review the decision of the FTT, and argued that:

… that there is a gap in the legislation that fails to provide for patients who lack the capacity to decide to apply to the First-tier Tribunal. In order to overcome that deficiency, section 66 of the Mental Health Act 1983 should be interpreted, pursuant to section 3 of the Human Rights Act 1998, in a way that is compatible with the patient’s Convention rights. The Convention rights engaged are Article 5, 6 and 14. The proposed interpretation that protects those rights is to read section 66(1)(i) as applying to a ‘patient (with the assistance of a litigation friend if needed)’. In R (H) v Secretary of State for Health [2006] 1 AC 441, the House of Lords decided that the overall scheme of the Mental Health Act 1983 was compatible with the Convention rights of a patient detained under section 2 for assessment. That case is said to be distinguishable, because the patient here is detained under section 3, where different time scales apply.

Upper Tribunal Judge Jacobs held that there was no basis upon which to distinguish H, noting that:

… the time periods differ according to the basis on which the patient is within the Act. The patient’s solicitor is right that the House of Lords was concerned with a patient detained under section 2, for which the time limit was 28 days. But I cannot find anything in the speech of Lady Hale, with whom all the others agreed, to suggest that the period of time was significant, still less decisive. More important in her reasoning was the proper use of the Secretary of State’s power to refer a case to the tribunal:

  1. Even if the patient’s nearest relative has no independent right of application, there is much that she, or other concerned members of the family, friends or professionals, can do to help put the patient’s case before a judicial authority. The history of this case is a good illustration. The patient’s mother was able to challenge every important decision affecting her daughter. Most helpfully, she stimulated the Secretary of State’s reference to the tribunal very quickly after it became clear that her daughter was to be kept in hospital longer than 28 days. Had MH been discharged once the 28 days were up there would, in my view, have been no violation of her rights under article 5(4). It follows that section 2 of the Act is not incompatible with article 5(4). Section 29(4), however, is another matter.

That reasoning is equally applicable to a patient detained under section 3 rather than section 2.

Upper Tribunal Judge Jacobs therefore held that:

  1. I accept that there appears to be a gap in the protection of a patient’s right to bring their case before the First-tier Tribunal, but that is apparent only when the tribunal’s rules of procedure are considered in isolation. It disappears when the various duties and powers under those rules, the Mental Health Act 1983 and the Mental Capacity Act 2005 are considered as a package. This case is governed by the reasoning in R (H). There is no violation of the patient’s Convention rights. An application for the Secretary of State to refer his case could have been made under section 67 and, if that was refused, the patient could have had recourse to judicial review.


It is more than a little concerning that Upper Tribunal Judge Jacobs reached his decision without any reference to the decision of the ECtHR in the Strasbourg case that followed H.  In that case, the ECtHR held that the system, as a whole, including the duty upon the SoS to refer upon application, complied with Article 5(4), but it was a very close-run thing:

  1. The question might be asked whether such a hearing could have taken place had the applicant not had a relative willing and able, through solicitors, to bring her situation to the attention of the Secretary of State. However, the Court may only consider the case before it, and the facts of the present case clearly illustrate that in circumstances such as the applicant’s, where the incompetent patient is “befriended”, the means do exist for operating section 29(4) of the 1983 Act compatibly with the requirements of Article 5 § 4 of the Convention. For that reason, no failure to comply with those requirements can be found in the applicant’s case as regards the period of her detention in issue under the present head.

OK was, in this case, able to benefit from the assistance of a solicitor (even if they should have brought the case to the attention of the Secretary of the State, rather than the Tribunal) but is troubling that the implications of the Strasbourg judgment were not considered by the judge (or apparently brought to his attention).

CategoryOther proceedings, Judicial Review Date


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