Judge: Upper Tribunal (AAC) (Upper Tribunal Judge Jacobs)
Citation:  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  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  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:
That reasoning is equally applicable to a patient detained under section 3 rather than section 2.
Upper Tribunal Judge Jacobs therefore held that:
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:
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).