AS TO THE ADMISSIBILITY OF
Application no. 36509/97
by Jean COTTENHAM
against the United Kingdom
The European Court of Human Rights (Third Section) sitting on 11 May 1999 as a Chamber composed of
Mr J-P. Costa, President,
Sir Nicolas Bratza,
Mr L. Loucaides,
Mr P. Kūris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja, Judges,
with Mrs S. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 April 1997 by Jean COTTENHAM against the United Kingdom and registered on 16 June 1997 under file no. 36509/97;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 12 May 1998, the observations in reply submitted by the applicant on 8 December 1998 and the letter from the applicant’s solicitor dated 24 March 1999;
Decides as follows:
The applicant is a British national, born in 1946 and living in Southampton. She is represented before the Court by Mr S.E. Reynolds, a lawyer practising in Leigh. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Particular circumstances of the case
On 2 October 1967 the applicant was convicted of an offence and committed to a psychiatric institution pursuant to the Mental Health Act 1959. Following the entry into force of the Mental Health Act 1983 (“the 1983 Act”) the applicant continued to be detained as a “restricted patient” under sections 37 and 41 of the 1983 Act.
On 2 April 1982 the applicant was conditionally discharged but she was recalled on 4 February 1993 by warrant of the Secretary of State pursuant to section 42(3) of the 1983 Act. She was then detained at a medium secure unit until 8 February 1995 when she was transferred to another ward from where, on 15 April 1996, she was moved to a community-based ward.
Between February 1993 and February 1996, the continuing grounds for applicant’s detention were reviewed twice by the Mental Health Review Tribunal (“MHRT”). In February 1996 the applicant made a third application to the MHRT, but then changed her mind and withdrew it. On 20 May 1996 she made a further application which was received by the MHRT on 24 May. By letter dated 10 June 1996, the MHRT informed the applicant’s solicitor that his client had made an application to have her case reviewed. The solicitor took instructions from the applicant and applied for legal aid on her behalf. Legal aid was granted by telephone on 18 June 1996, and expenditure of up to GBP 450 was approved in respect of an independent psychiatric report.
The following day the applicant’s solicitor wrote to a consultant psychiatrist, asking him to prepare a report. The psychiatrist informed that applicant’s solicitor that he was not free to examine the applicant until 19 July 1996. On 2 July 1996, therefore, the applicant’s solicitor wrote to the MHRT asking that the case should not be listed for hearing until mid-September 1996 to allow for the preparation of the independent psychiatric report. The appointment with the psychiatrist had subsequently to be postponed until 19 September 1996.
The MHRT received the statutory reports, namely the Responsible Medical Officer’s Report on 27 August 1996, and the Social Circumstances Report on 18 September 1996. Copies of these reports were sent to the applicant’s solicitors, who received them on 5 and 19 September respectively. The Home Office comments on these two reports were received by the MHRT on 19 and 30 September, and forwarded to the applicant’s solicitors on 23 September and 1 October.
On 18 November 1996 the applicant’s solicitor wrote to the psychiatrist instructed on behalf of the applicant to remind him that the independent psychiatric report was still outstanding. The report, dated 10 January 1997, was finally received by the applicant’s solicitor on 11 February 1997. The applicant claims that her solicitors wrote to the MHRT on 18 February 1997, but the MHRT has no record of this letter. According to the applicant, the MHRT then telephoned her solicitor on 19 February suggesting a hearing date of 5 March, but the applicant’s solicitor rejected this date since he was not available. It is not in dispute that the solicitor wrote to the MHRT on 26 February 1997, reminding the tribunal that the matter was outstanding and enclosing the psychiatric report prepared on the applicant’s behalf.
The case was then listed for hearing on 25 March 1997. Copies of the psychiatric report prepared on behalf of the applicant were sent to the other parties for their comments, and these comments were sent to the applicant’s solicitors before the hearing.
On 25 March 1997 the MHRT decided not to recommend the applicant’s discharge.
B. Relevant domestic law and practice
Section 37 of the Mental Health Act 1983 (“the 1983 Act”) empowers a Crown Court to order a person’s admission to and detention in a specified hospital (a “hospital order”). The court can only make a hospital order if it is satisfied on the evidence of two registered medical practitioners that the offender is mentally disordered, that the disorder is of a nature or degree which makes it appropriate for the person to be detained in a hospital for medical treatment and that a hospital order is the most suitable method of disposing of the case.
Section 41 of the 1983 Act empowers a Crown Court, when making a hospital order, to make a restriction order without limit of time. A restriction order may be made if it appears to the court, having regard to the nature of the offence, the offender’s antecedents and the risk of her committing further offences if set at large, that it is necessary for the protection of the public from serious harm to make the order.
Under section 70 of the 1983 Act a person who is subject to a hospital order and restriction order (“a restricted patient”), and who is detained in hospital, can apply to a Mental Health Review Tribunal (“MHRT”) after being detained for six months. After twelve months’ detention the patient can re-apply annually. Under section 71 of the 1983 Act the Secretary of State may at any time refer the case of a restricted patient to a MHRT and must do so when the case has not been considered by a MHRT for three years.
Under section 73(1) of the 1983 Act, read with section 72(1), where an application is made to a MHRT by a restricted patient who is subject to a restriction, the MHRT is required to direct the absolute discharge of the patient if satisfied -
(a) (i) that the patient 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 the patient to be liable to be detained in a hospital for medical treatment; or
(ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment; and
(b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
By virtue of section 73(3) of the 1983 Act, a patient who is absolutely discharged ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect.
Under section 73(2) of the 1983 Act, where the MHRT is satisfied as to either of the matters referred to in paragraph (a) above, but not as to the matters referred to in paragraph (b) above, it is required to direct the conditional discharge of the patient. By virtue of section 73(4), a patient who has been conditionally discharged may be recalled by the Secretary of State under section 42(3) and must comply with the conditions attached to her discharge. In contrast to the case of absolute discharge, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.
The applicant complains about the length of time it took the MHRT to review her detention, the relevant hearing not taking place until 25 March 1997. She invokes Articles 5 § 4 and 6 § 1 of the Convention.
The application was introduced on 8 April 1997 and registered on 16 June 1997.
On 14 January 1998, the Commission decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 12 May 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 8 December 1998, also after an extension of the time-limit. On 24 March 1999 the applicant submitted further information by letter.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
On 8 January 1999 the Court granted the applicant legal aid.
1. The applicant complains about the time taken by the Mental Health Review Tribunal to decide her case. She invokes Articles 5 § 4 and 6 § 1 of the Convention. The Court considers that the complaint falls more appropriately to be examined under Article 5 § 4, which states:
“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.”
The parties agree that, when assessing whether the procedure before the MHRT was sufficiently “speedy” for the purposes of Article 5 § 4, the period to be taken into account commenced on 24 May 1996, when the MHRT received the application, and ended with its decision on 25 March 1997.
The Government submit that the applicant, through her representatives, substantially caused the delay in question. They point out that, in response to the applicant’s solicitors’ request for a delay to allow for an independent psychiatric report to be prepared, the MHRT quite properly took no immediate action in setting a hearing. The MHRT proceeded expeditiously to obtain a report from the Responsible Medical Officer, the Social Circumstances Report and the Home Office comments on these two reports. Correspondence and reports were copied to the applicant’s representatives immediately they were received by the MHRT. This process was complete by 30 September 1996.
The Government acknowledge that at this point the MHRT could have contacted the applicant’s solicitor to ask whether he was ready for a hearing date to be fixed. But they consider that the primary onus lay on the solicitor who, having requested the delay, should have obtained the independent psychiatric report as quickly as possible and confirmed that he was in a position to proceed. In the event, the report was not prepared until 10 January 1997, and not sent to the MHRT until 26 February 1997. The hearing date was then set for 25 March 1997, to allow the other parties time to comment on the new report and for those comments to be sent to the applicant’s solicitors before the hearing.
The applicant concedes that her solicitor requested that the case not be heard until mid-September 1996, but maintains that, from that date onwards, the MHRT was under a duty to list the matter for hearing within a reasonable time. The MHRT was not entitled to abdicate its responsibilities to the patient by placing the onus on her solicitors to fix the date for the hearing. Had the MHRT listed the matter for hearing shortly after mid-September 1996, the applicant would have had the opportunity to decide whether or not she wished to continue with her efforts to obtain an independent psychiatric report or to proceed without one. By deferring a listing until March 1997, the applicant was deprived of the opportunity to make that choice.
The Court recalls that a person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is entitled under Article 5 § 4 of the Convention to take proceedings at reasonable intervals before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his or her detention, inasmuch as the reasons initially warranting confinement may cease to exist. Article 5 § 4, in guaranteeing to persons arrested or detained a right to institute proceedings to challenge the lawfulness of their detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and ordering its termination if it proves unlawful (see the Musial v. Poland judgment of 25 March 1999, Reports 1999, § 43).
The Court observes that the period in question commenced on 24 May 1996, when the MHRT was seized of the applicant’s application, and ended with the Tribunal’s decision on 25 March 1997. The total time taken by the MHRT to reach its decision was, therefore, ten months. At first sight, this delay in examining the legality of the detention of a person of unsound mind would appear to be incompatible with the “speediness” requirement in Article 5 § 4 (see, for example, the E. v. Norway judgment of 29 August 1990, Series A no. 181, pp. 27-28, §§ 63-67). The only factors which could justify such a lengthy period are the particular circumstances, such as the need to conduct a thorough examination of the application and the applicant’s conduct (No. 14438/88, Boucheras and Groupe Information Asiles v. France, Commission’s decision of 11 April 1991, Decisions and Reports no. 69, p. 236, at p. 250). Included in the particular circumstances of the present case is the fact that the proceedings in question did not represent the applicant’s first application to the MHRT: since her recall to hospital in 1993, her case had been considered by the MHRT on two occasions, and in February 1996 the applicant made a further application, which she subsequently withdrew.
The Court does not rule out that, given the particular problems of detained patients, where it appears that the legal representatives of such a person are acting negligently or in some way causing unjustified delay in the presentation of an application to the MHRT, the tribunal would be under a duty to make enquiries and to ensure that the application is proceeded with expeditiously. In the present case, however, very shortly after being notified of his client’s application to the MHRT, the applicant’s solicitor took instructions, applied for legal aid, instructed a consultant psychiatrist and requested the Tribunal not to list the case for hearing until mid-September 1996, to allow time for the preparation of an independent psychiatric report. In the event, this report was not completed until 10 January 1997, and was not filed with the MHRT until 27 February 1997. Time then had to be allowed for the other parties to comment on the report, and for these comments to be sent to the applicant’s solicitor. According to the applicant, the MHRT initially proposed a hearing date of 5 March 1997, which the applicant’s solicitor rejected since he would not have been available. The hearing eventually took place on 25 March, one month after the independent psychiatric report was filed.
The Court does not consider that the total length of the proceedings complained of suggests any lack of diligence on the part of the judicial authorities dealing with the case. The MHRT cannot be criticised for allowing the applicant time for the preparation of a report by a psychiatrist of her choice, or for delaying the hearing until a date when the applicant’s solicitor was free to represent her. To refuse these requests might have been to deny the applicant a fair hearing.
The Court accordingly finds that, in the circumstances of the case, the length of the proceedings before the MHRT was not incompatible with the requirement under Article 5 § 4 of the Convention that scrutiny be exercised “speedily”. It follows that this application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
S. Dollé J-P.