England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE SCOTT BAKER)

		Royal Courts of Justice Strand London WC2 Tuesday 3 July 2001

1. LORD PHILLIPS, MR:This appeal raises an important point under the Human Rights Act 1998 ("the HRA") and Article 5(4) of the European Convention on Human Rights ("ECHR") as to the time within which an application to a Mental Health Review Tribunal ("the MHRT") must be heard so as to comply with obligations in Article 5(4), namely that:

"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."

2. I shall refer to the appellant as "C" and to the respondent as "the Tribunal".
3. Scott Baker J refused C's application for judicial review by a judgment delivered on 21 December 2000. Brooke LJ granted permission to appeal against that decision on 27 February 2001. The issue raised in this case was summarised by Scott Baker J as follows.
4. C was detained under section 3 of the Mental Health Act 1983 ("the MHA") on 16 October 2000. He immediately applied to the Tribunal for discharge and, in accordance with current practice, his case was listed for hearing eight weeks later on 11 December. His submission is that eight weeks is too long a period and is contrary to Article 5(4), which requires the lawfulness of his decision to be decided speedily."
5. At the time that C applied for judicial review he was compulsorily detained under the MHA. Before his case had come on for hearing he had been discharged. Scott Baker J decided, nonetheless, to hear the application for two reasons:

(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.

6. Brooke LJ gave permission to appeal because he considered that it was appropriate that this court should consider the ECHR point. I agree.

The facts

7. The facts as found by the judge are not in dispute. C has for a number of years been suffering from schizophrenia, which is known to be a relapsing illness. As well as having been out of hospital for lengthy periods, and at times in hospital on a voluntary basis, he has previously been detained under the 1983 Act. On 15 October 2000 the police were called to Lambeth Council offices where he was causing a disturbance. He was taken to the police station and interviewed by Dr Boocock and a social worker. C's wife was contacted and asked if she would consent to his admission to hospital for treatment, but she refused. C was admitted compulsorily under section 4 of the MHA into the South Western Hospital.
8. On 16 October an application was made to the county court for C's wife to be displaced as nearest relative. An interim order granting the application was made by a district judge. On the same day, although already in hospital, C was admitted for treatment under section 3 of the MHA and applied to the Tribunal for discharge.
9. On 17 October C's wife learned of the order displacing her. Two days later she applied for judicial review challenging the legality of that order which should not have been made by a district judge. On 20 October permission was refused on the county court arranging a hearing between the parties. That took place on 23 October when the judge confirmed C's wife's replacement on an interim basis. On 26 October C's solicitors notified the Tribunal of their interest and requested a hearing in advance of the usual eight weeks. This was not granted. On 27 October, in accordance with the general practice, the application was listed for hearing on 11 December, precisely eight weeks after the date on which the application had been made.
10. On 10 November C was transferred to Cane Hill Hospital. On 21 November the interim order replacing his wife as the nearest relative was discharged. On the same day, the date of the Tribunal hearing was advanced to 1 December to accommodate C's new responsible medical officer ("RMO"). On 24 November Cane Hill staff told C's wife of the intention to move him back to South Western Hospital. She then successfully applied to the Cane Hill Hospital for his discharge from detention pursuant to section 23 of the MHA.

THE LEGAL FRAMEWORK - The MHA

11. The MHA consolidates legislation since the Mental Health Act 1959. The 1959 Act arose out of a Royal Commission lasting from 1954 to 1957 under the chairmanship of Lord Percy. The MHRT arose out of the recommendation in the Royal Commission that in future compulsory admission should be obtainable without prior judicial authority and that a review tribunal be established:

".... 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."

12. Prior to the implementation of the Mental Health Act 1959, a patient could only be compulsorily detained in hospital if certified under the Lunacy Act 1890; certification was by a magistrate.
13. Section 3 of the MHA permits a patient to be admitted to hospital for treatment and detained there for the period allowed, which section 21 states is a period not exceeding six months. Section 2 of the MHA permits the admission and detention of a patient in hospital for assessment for a period of up to 28 days. This case is not directly concerned with section 2, but with section 3.
14. The procedure for the admission of a patient under section 3 is contained in section 11. Essentially, the approved social worker, or nearest relative, each of whom can make the application, must have:

(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.

15. The hospital has authority to act on a duly completed application for admission, and to convey and detain the patient there (section 6(1)). Where, as in the present case, an application under section 3 is made in relation to a patient who is already detained under section 4, the provisions of section 3 thereafter prevail (see section 6(4))).
16. The MHRT subsists by virtue of section 65 of the MHA. By section 65(1A) there is one Tribunal for each region of England. C's case fell within the London South and South West Region.
17. A patient admitted to hospital compulsorily under either section 2 or section 3 of the MHA has a right to request a Mental Health Review Tribunal hearing under section 66(1) of the MHA. In C's case, by virtue of section 66(2)(b), the right was one which he was entitled to exercise within six months of 16 October 2000, the date of his admission under section 3. If he had failed to request such a hearing within six months, the matter would have had to be referred to the Tribunal by the hospital managers by reason of section 68(1) of the MHA.
18. The general provisions for the form of a request for hearing are set out at section 77 of the MHA. Section 78 of the MHA permits rules to be made relating to the procedure to be followed by Tribunals.

The Rules

19. The MHRT Rules 1983, made under section 78 of the MHA, control applications to Mental Health Review Tribunals and the proceedings of those Tribunals. The following rules are of relevance. They apply when an application is made to a Mental Health Review Tribunal.
20. Rule 6 - The responsible authority, for present purposes the manager of the detaining hospital, is required to send a statement to the Tribunal containing prescribed information as soon as practicable and in any event within three weeks of the application. The statement is required to contain certain specified information. This includes (see part B of schedule 1) an up-to-date medical report prepared for the Tribunal, including the relevant medical history and a full report of the patient's medical condition. Other background reports are also required. Production of these other reports within three weeks is required subject to it being reasonably practicable to produce them.
21. Rule 9 - The Tribunal has a limited power of postponement if it is in the interests of the patient.
22. Rule 11 - The medical member of the Tribunal must examine the patient some time before the hearing.
23. Rule 13 - The Tribunal has the power to give directions to ensure the speedy and just determination of the application.
24. Rule 16 - There is a general power for the Tribunal to adjourn and, before adjourning, it can give such directions as it thinks fit for ensuring the prompt consideration of an application at an adjourned hearing.
25. Rule 20 - At least 14 days' notice is required of the time, date and place fixed for the hearing.

Practice

26. There is no provision in the Rules that establishes a time limit within which an application for review has to be heard. Scott Baker J found that a current practice exists under which applications of patients detained under section 3 of the MHA are listed for hearing eight weeks after the date of the application. It is true that in the present case C's application was originally listed for hearing precisely eight weeks after the date of his application. We have not, however, found it possible to identify evidence which establishes that this is a general practice.
27. A statement has been adduced in evidence that was prepared for another similar judicial review application. It was made by Mr Michael Christie, the Regional Chairman of the North London and East Region of the MHRT on 25 November 1999. It includes the following passage:

"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."

28. This information is supplemented by a statement prepared for the purpose of these proceedings by Mary Kane, the Regional Chairman of the MHRT for the London South and South West region. She states:

"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",

29. which she then sets out. The emphasis "not more than" is hers.
30. In a letter written to C's solicitors on 1 November 2000, Mr Jones, of the London South and South West Region MHRT stated:

"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."

31. Although requested to provide particulars of the involvement of the Council on Tribunals and the European Court, Mr Jones does not appear to have been able to provide these.
32. This evidence supports the existence of a policy under which applications have to be heard within a period of eight weeks. It does not, however, demonstrate that there is a practice under which applications are routinely fixed for hearing eight weeks after the date on which they are made. It was, and is, however, common ground that such a practice has developed.
33. Before Scott Baker J the attack on this practice was based on an assertion that a delay of eight weeks could not satisfy the ECHR requirement that proceedings should result in the lawfulness of detention being determined speedily. An interim declaration was sought "that eight weeks between detention and a Mental Health Review Tribunal hearing does not constitute 'speedy' access to a court".
34. Before us the emphasis of the attack has changed. C has sought from this court "a declaration that the defendant's policy of listing hearings in respect of patients detained for treatment under section 3 of the Mental Health Act 1983 eight weeks from the date of the request is unlawful".
35. There has been a change of counsel on both sides since the hearing below. For C, Mr Oliver Thorold has put at the forefront of his case the assertion that to list every case for a hearing after eight weeks is arbitrary and cannot satisfy the requirement that all cases be determined speedily.
36. For the Tribunal, Miss Lieven has advanced the following propositions:

(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

37. Both Miss Lieven and Mr Thorold have sought to persuade us that the decisions of the Strasbourg Court provide guidance on whether a period of delay of eight weeks satisfies the requirement that determination of the lawfulness of the detention of a patient should take place "speedily".
38. Miss Lieven referred us to Winterwerp v The Netherlands (1979) 2 EHRR 387. In that case the applicant had been compulsorily detained on the ground that he was mentally ill. One of the issues was whether a period of six weeks emergency detention violated Article 5(1) as failing to accord "with a procedure prescribed by law". In this context the court remarked at paragraph 42:

"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."

39. Miss Lieven submitted that it could be inferred from this that the court would have no concern about a period of eight weeks delay between application and hearing in the case of a section 3 patient. I do not find it possible to draw any such inference.
40. In his turn, Mr Thorold drew our attention to E v Norway (1990) 17 EHRR 30. In that case the applicant was an untreatable psychopath who was compulsorily detained. He made an unsuccessful challenge of his detention to the Oslo City Court. Eight weeks elapsed between application and hearing. He successfully submitted to the European Court that this period was too long to satisfy his right under Article 5(4) to have his application decided speedily. Mr Thorold submitted that this case was analogous to that of C and supported the proposition that eight weeks was too long. He relied, particularly, on the following observation of the court at paragraph 64:

"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."

41. Miss Lieven observed that the circumstances of E were very different from those of C in the present case. E was challenging the lawfulness of his detention in proceedings akin to habeas corpus. The nature of his mental condition was not in issue, as was that of C in this case.
42. The distinction drawn by Miss Lieven has some validity, but it is not the explanation for the European Court's decision that Article 5(4) was infringed. The special circumstances of E's case which influenced the court appear to have been:

(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.

43. This underlines the approach of the Strasbourg Court in a case such as this. The court does not attempt to decide in principle whether a particular period of delay is, or is not, compatible with the requirements of Article 5(4). It looks at the facts of the particular case to see whether there was a failure to proceed with reasonable despatch having regard to all the material circumstances.
44. That this is the approach of the court was made clear in paragraph 55 of the judgment in Sanchez-Reiss v Switzerland (1986) 9 EHRR 71, a passage cited by the court in E.

"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."

45. It seems to me that the approach of the Strasbourg Court is not compatible with the practice of automatically listing an application for hearing eight weeks after the date of the application, unless it be the case that this is the only practical way of ensuring that individual cases are determined as speedily as their individual circumstances reasonably permit. Furthermore, in considering that question, the Strasbourg Court would not have regard to any alleged constraint of resources. In Bezicheri v Italy (1989) 12 EHRR 210, the Court noted at paragraph 25 that:

"the Convention requires the Contracting States to organise their legal systems so as to enable the Courts to comply with its various requirements."

46. On this appeal the submissions of both counsel have focused on what I believe to be the central issue. Does the nature of the inquiry that has to be carried out on an application by a patient detained under section 3 of the MHA, when coupled with the inevitable exigencies of an efficient listing system, justify the practice of allowing an eight week period between application and hearing in every case?
47. In approaching this question, Miss Lieven has emphasised the other safeguards that exist to protect the position of a patient detained under the MHA and, in particular, the right to apply for habeas corpus or judicial review in order to challenge the legality of the detention. I accept that, when considering whether an eight week period of delay can be justified, it is material that this applies to proceedings where the mental state of the patient is in issue and not cases where there are more clear cut grounds for challenging the legality of the detention.
48. In the court below Scott Baker J made the following observations about the test to be applied in this case:

"....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."

49. A little later he said:

"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."

50. Mr Thorold's submissions were, to a degree, at odds with this proposition. He submitted that Article 5(4) gave a patient the right to challenge his detention at a time of his choosing and that, if the evidence was not then readily available to support his challenge, the court should not be paternalistic in delaying the hearing in order to ensure that the outcome justly reflected the merits.
51. In my judgment, Scott Baker J's observations were correct. On an application by a section 3 patient, the tribunal has to consider under section 72 of the MHA, among other matters, whether:

"(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."

52. As Miss Lieven pointed out, the decision of the Tribunal will be determinative of the patient's fate for the next six months. However urgent the patient's demand for a hearing may be, I consider that such time can properly be allowed as is reasonably necessary to ensure that the Tribunal is in a position, adequately and fairly, to adjudicate on the issues before it. How long is likely to be needed for this?
53. Rule 6, to which I have already referred, grants to the responsible authority a maximum of three weeks within which, and as soon as practicable, the authority is to send to the tribunal the statement that contains the majority of material relevant to its decision. In particular, the statement has to include an up-to-date medical report including the relevant medical history and a full report of the patient's medical condition.
54. Mr Thorold did not suggest that a maximum of three weeks for providing this information was unrealistic. He submitted, however, that there was no justification for allowing a period of at least five weeks to elapse after the provision of this information before the hearing. He pointed out, with some force, that the result of this was that the medical report would not be up-to-date, but out of date by the time of hearing and would have to be supplemented, orally or in writing, by the RMO.
55. Miss Lieven pointed to the requirement that the patient be examined by the medical member of the Tribunal before the hearing (see Rule 11). She submitted that this would normally occur after the provision of the statement under Rule 6; that is plainly correct. Miss Lieven went on to attempt to paint a picture of a plethora of other activities which might fill the five week gap before the hearing:

(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).

56. To these Mary Kane added in her statement the possibility that a patient might be transferred to a new institution and a different RMO.
57. While these are possible incidents of an individual case, I am not persuaded that they inevitably call for a further period of five weeks or more after the delivery of the statement. The time reasonably needed after delivery of the statement before the hearing can take place is likely to turn very much on the manner in which the patient, and the patient's advisors, will wish to respond to the statement. If they require the patient to have an independent psychiatric assessment, more time will be needed than if they do not.
58. Where, as in the present case, a patient is represented from the outset by solicitors experienced in mental health work who are requesting an early hearing date, I can see no reason why that request should not be capable of accommodation, subject to the exigencies of listing to which I now turn.
59. Miss Lieven sensibly conceded that some applications would need longer preparation than others, but she submitted it was impossible to identify which these were at the stage of fixing the hearing date. She also submitted that any attempt to differentiate when fixing hearing dates would unfairly discriminate against those applications given the more distant hearing date. She submitted that such discrimination might violate Article 14 of the ECHR. I cannot accept this submission. To allocate hearing dates according to the amount of time needed to prepare for the hearing could not conceivably constitute unlawful, or indeed any, discrimination. Whether this could be achieved in practice is another matter.
60. The earlier a hearing date is fixed, the more difficult it is likely to be to estimate the time that will be needed to the prepare for the hearing. In this case, the date was fixed 11 days after the date of making the application. It seems to me that a more informed stage at which to fix a date would be after receipt of the statement required by Rule 6, when the scope of the remaining activities that would need to take place before the hearing would be clear. At all events, in the absence of cogent evidence, and there is none, I cannot accept that it is impossible to tailor lead times inside the eight week target to suit particular cases.
61. Miss Lieven submitted that it would be impossible to arrange dates at shorter notice, having regard to the fact that members of the Tribunal and the RMOs would have to identify periods of common availability within crowded diaries. I am not prepared to accept this without cogent evidence. In this context I think it is significant that in the different circumstances of an application to a tribunal by a patient detained under section 2, hearings are arranged within seven days of application.
62. Mr Thorold drew attention to the proposals for a new Mental Health Act set out in the 2000 White Paper, CM50161. These envisage that a patient will be entitled to apply to the Mental Health Tribunal for a review, and that the hearing will take place within seven days of the application. There is force in Mr Thorold's submission but it also demonstrates that there is no practical necessity to list cases for hearing eight weeks after the date of application.
63. Finally, it is pertinent that in the present case, on 21 November, the hearing date was advanced by 10 days from 11 to 1 December to accommodate the RMO at Cane Hill Hospital, to which C had been transferred 11 days earlier. This tends to suggest that it is not impractical to fix hearing dates at relatively short notice. It also demonstrates that in the present case there was no need for an eight week period in order to prepare for the hearing.
64. My conclusion is that the practice of fixing hearing dates eight weeks after the date of application is bred of administrative convenience, not of administrative necessity. There is nothing inconsistent with Article 5(4) of the ECHR in having a target date of eight weeks maximum. The circumstances of some cases may well require eight weeks' preparation for the hearing. In such cases an eight week period will not conflict with the requirement of Article 5(4) that the decision on the application must be obtained speedily.
65. When the eight week target was introduced, I can understand the temptation, and perhaps even the need, initially to list cases so as to make use of the whole of the target period. The transitional arrangements when the target was introduced must have been difficult. What seems to have occurred is that an eight week lead time for hearings has become the rule when an application is made by a section 3 patient.
66. I do not consider lawful a practice which makes no effort to see that the individual application is heard as soon as reasonably practicable, having regard to the relevant circumstances of the case. Such a practice will inevitably result in some applications not leading to the speedy decision required by Article 5(4). The present case is an instance of this result.
67. Scott Baker J was confronted with an argument on behalf of C that the lead time in a section 3 case should be no longer than that for a section 2 case. I can well understand why he rejected that submission. Mr Thorold has advanced a less extreme argument.
68. For the reasons I have given, I consider that argument to be sound. Accordingly, I would allow this appeal.
69. LORD JUSTICE JONATHAN PARKER: I agree.
70. LORD MUSTILL: I also agree.
Order: Appeal allowed with a declaration that the defendant's practice of listing all hearings in respect of patients detained for treatment under section 3 of the Mental Health Act 1983 a uniform specified period after the date of the request is unlawful, and a declaration that the listing of C's Mental Health Review Tribunal hearing eight weeks after he requested such hearing was unlawful. Respondent to pay appellant's costs of the appeal and below. Community Legal Service funding subject to detailed assessment. (Order does not form part of approved Judgment)