England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMNISTRATIVE COURT
(THE HONOURABLE MR JUSTICE SILBER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 December 2004

Lord Justice Buxton :

1. This appeal concerns the compatibility with article 5 of the European Convention on Human Rights [the ECHR] of various arrangements made by the Mental Health Act 1983 [the 1983 Act] for dealing with persons with mental disorder.

The statutory structure

2. No issue arises as to the construction of the 1983 Act, so it will be sufficient to describe its relevant provisions in summary form.

•    Section 2 provides for the admission and detention for assessment of a person on the ground that he is suffering from mental disorder of a nature warranting such detention, and that he needs to be detained in the interests of the health or safety of himself or others. By section 2(4), such detention can only last for 28 days

•    Section 3 provides for the compulsory detention of a person for treatment, for a period of initally up to six months

•    Section 7 provides for the making of a guardianship order in respect of a person suffering from mental disorder

•    In all of the foregoing cases, section 66 permits the patient to make an application for the discharge of the order to a Mental Health Review Tribunal [MHRT]

•    Additionally, an order for discharge from a section 2 detention may be made either by the hospital authorities or by the patient's nearest relative (section 23). However, the patient's responsible medical officer [RMO] may make what is colloquially called a barring order preventing a discharge by the nearest relative if he thinks that the patient if discharged would be liable to be a danger to himself or to others (section 25)

•    Under section 29 an authorised social worker may apply to the County Court for the removal of the nearest relative from the performance of his functions under the Act, inter alia if he considers that the nearest relative is unreasonably failing to agree to a guardianship order. When such an application is made, the 28 day period under section 2(4) is, by section 29(4), extended automatically until the proceedings have been finally disposed of.

The case of MH

3. MH is 32 years of age, and has the misfortune to suffer from Down's Syndrome. Until comparatively recently she lived at home with her mother, her nearest relative, but on 31 January 2003 she was admitted to detention under section 2. Shortly thereafter the mother sought a section 23 discharge, but MH's RMO issued a barring order under section 25. The section 2 order was to expire automatically on 28 February 2003, but on 27 February 2003 a section 29 application was made to the Telford County Court to displace the mother as nearest relative. By section 29(4), therefore, MH remained subject to detention under the section 2 order.
4. When the present application came before Silber J, in January 2004, he was very surprised indeed to find that still no date had been fixed for the hearing of the section 29 application that had been made eleven months previously. We may add that that history of delay has been extended, in that even at the date of this judgment, some 20 months after the section 29 application, those proceedings still have not been "finally disposed of" for the purposes of section 29(4), because the nearest relative has appealed to this court against the decision of the County Court judge. In the meantime, however, the local authority had succeeded in finding suitable accommodation for MH other than in the psychiatric hospital to which she had been admitted only for a 28 day assessment, and MH moved to that accommodation on 21 July 2003. On 7 August 2003 a guardianship order was made in respect of her. That order now authorises her continued restriction.
5. MH makes two complaints. First, her disability is sufficiently serious for her to have been unable either herself to make an application to the MHRT in respect of the section 2 detention, or to authorise others to make an application on her behalf. Second, because of what she contends is the adventitious fact of the application under section 29 she has been detained under section 2 very well beyond the normal period of 28 days. The first complaint affects the interests of all patients suffering from a disability as serious as that of MH. The second complaint potentially affects all persons in respect of whom a section 2 detention is prolonged under section 29(4). It was for those reasons that Silber J accepted, and with respect was right to accept, that the proceedings should not be stayed because MH herself has long ago passed out of the ambit of section 2. It was for those reasons that this court gave permission to appeal from Silber J's rejection of MH's application on its merits. And, quite apart from the general importance of the issues, MH was by the operation of the statutory scheme kept for over six months in a form of detention that the statute itself assumes to require only 28 days to fulfil its statutory purposes.

The issue in this appeal

6. The objections to the statutory scheme have already been indicated in outline. They are

•    A competent section 2 patient has access to the MHRT, whereas an incompetent patient such as MH does not

•    Section 29(4) may extend a section 2 detention for many months after the expiry of its statutory term, and neither the competent nor the incompetent patient has any recourse to the MHRT in respect of that extension

These, however, are the express and intended rules of a statutory scheme. If MH is going to displace them, her only recourse is under ECHR; but there are serious difficulties in applying the jurisprudence, and more particularly the detailed wording, of the relevant article, article 5, to the facts of the present case.

7. Before turning to those difficulties, however, I must address the judgment below of Silber J, who in a detailed and if I may say so careful review of the available authority found himself unable to afford MH any relief. Some part of the judge's reasoning addressed the article 5 difficulty that I have mentioned in paragraph 6 above, and to which I return below. The judge was, however, also persuaded that aspects of the statutory scheme provided the patient with sufficient protection for ECHR purposes even though her right to recourse to the MHRT was limited, or in practice non-existent. These considerations were, in respect of access to the MHRT in respect of the initial detention under section 2the automatic expiry of that detention after 28 days; and in respect of the section 29(4) extension the fact that it was supervised, at least indirectly, by the County Court. I am not persuaded on either of those points, which I deal with in turn.

Automatic release after 28 days

8. The judge, at his paragraph 36, accepted the argument of the Secretary of State that automatic discharge at the end of the 28 day period (absent, of course, a section 29 application) was a better safeguard for the patient than an "automatic review". The latter expression reverts to the jurisprudence of article 5, and I shall have to come back to it. The problem about the argument at this stage is, however, that it does not address the imbalance between the competent patient, who can apply to the MHRT under section 66 within 14 days of his detention, and the incompetent patient who, because he is not mentally able to make or promote such an application, has no recourse to an outside body: except through the agency of the nearest relative, who can be, and in this case was, barred under section 25. If the 28 day limit is a sufficient safeguard in the case of incompetent patient, why is it not so in the case of the competent? Why in his case is recourse to the MHRT given at all? And, further, even a 28 day period of detention without review by a judicial body at least raises questions under the ECHR. Whilst I would agree that no rule of thumb can be laid down either in respect of detention generally or in respect of particular categories of detention, nevertheless it is impossible to say that the ECHR organs neither could have nor should have any concern about a 28 day detention without judicial review.
9. Mr Bowen, for MH, added a further point. The incompetent patient will not be able to apply to the MHRT in respect of a section 3 detention any more than he will in respect of a section 2 detention. The initial span of a section 3 detention is six months, not 28 days. An argument that there also lack of access to a judicial tribunal is offset by the limited time-span of the initial order would not seem to be very promising.

County Court supervision

10. The context of section 29 proceedings is not directly the interests of the patient, but rather issues as to the suitability of her nearest relative. The patient has no locus within them except as a witness in the contest between the referring social worker and the nearest relative. The judge pointed out, in his paragraph 54, that wherever the patient remains in detention during section 29 proceedings that will be because, as in the present case, the RMO has issued a barring order to a section 23 application by the nearest relative because the patient is likely to act in a manner dangerous to other persons or to himself. While I see the force of that argument in most cases, it is in my view not a complete answer to the problem of the section 29(4) extension either as a matter of fact or as a matter of civil rights.
11. As to fact, it cannot be assumed without further consideration that the patient remains throughout the (in this case) year long process in the same condition as she was when the banning order predated that process. As to civil rights, the patient's complaint is that her condition does not justify detention, or at least that that question should be answered by a court. That is not the issue before the County Court, which is why the judge, rightly, held that the County Court is not performing a function under article 5 of the ECHR.
12. A further problem arises in connexion with the emphasis placed by the ECHR on the speedy review of detention. Not only is the County Court not reviewing the lawfulness of the patient's detention, but also questions must arise about its promptitude in performing the task that it does undertake. The judge at his paragraph 41 cited and relied on the requirement stated by Hale LJ (as she then was), a judge of unparalleled authority in the field of mental health law, in R(S) v City of Plymouth [2002] 1 WLR 2582[39] that

"applications under section 29 have to be dealt with quickly"

The history of the present case may be unfortunate and unusual, but unfortunate it indeed is in the context of the obligation set out by Hale LJ. Silber J suggested that any undue delay by the County Court would involve a breach of its obligations under article 6 of the ECHR. But that is of no help to the patient. The standard of promptitude in such an application will be that appropriate to the condition of the nearest relative, not that appropriate to the condition of the patient. Moreover, the patient is not party to the proceedings: as Hale LJ pointed out in paragraph 24 of her judgment in the City of Plymouth case, he is the one person whom the County Court rules do not permit to be joined. Thus, the proceedings are not and cannot be concerned with the determination of his civil rights and obligations, so it is difficult to see how he can complain under article 6 of delay in pursuing them.

Article 5 of the ECHR

13. For these reasons, therefore, we are obliged directly to confront the issue of whether the statutory scheme conforms to article 5 of the ECHR.
14. MH's argument was that to accommodate her difficulty a generous reading was required of article 5.4 of the ECHR:

"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"

MH, though deprived of her liberty, was in practice unable, as the state knew, to take proceedings in the form of an application to the MHRT that would otherwise be available to her. Therefore the state, in accordance with the spirit of article 5.4, should make that application on her behalf, or otherwise ensure that her case was brought before the MHRT. The judge at his paragraphs 25-26, and elsewhere, rejected this contention on the simple wording of the article. The article 5.4 right is a right to take proceedings, not a right to be brought before a court. The latter is the language not of article 5.4 but, in significant contrast, of article 5.3: which applies to persons arrested on criminal charges as envisaged by article 5.1.c, and not to persons such as MH who are detained as being of unsound mind as envisaged by article 5.1.e. I return to this verbal problem below. Before that, however, I must address a number of additional arguments advanced by the Secretary of State in support of the judge's conclusion, none of which I found convincing.

15. First, the Secretary of State argued that a person such as MH still had the right to apply to the MHRT: it was her condition, rather than any action on the part of the state that either the ECHR or the court should control, that prevented her from exercising that right. This approach seems to me to be excessively formalistic. MH finds herself in the position that she is because the state, perfectly properly, has taken action on her behalf because of her actual or reasonably perceived mental condition. The state having asserted that reason to justify its engagement with MH, it is difficult to see that it can properly rely on a (severe) aspect of that mental condition to justify the witholding from MH of the protection that she would otherwise have.
16. Second, for the Crown Mr Morshead showed us dicta in various cases in the ECtHR that stressed that the right under article 5.4 was indeed a right on the part of the patient to bring proceedings himself: see for instance paragraph 61 of the judgment of the ECtHR in Winterwerp v The Netherlands (1979) 2 EHRR 387, and paragraph 66 of the judgment of the ECtHR in Tam v Slovakia (Application 50213/99, 22 June 2004). Such observations were however made in the context of a competent applicant, and to stress that the article 5.4 obligation is not discharged if the applicant is dependent on the discretionary decision of a non-judicial body before he can get before the appropriate judicial body. In the present context, the Secretary has a default power under section 67 of the 1983 Act to refer cases to the MHRT if he thinks fit, and in the event did so refer the case of MH. The MHRT, in March 2003, upheld the continuing section 2 detention. However the judge correctly held, in his paragraph 33, that the discretionary default power of the Secretary of State cannot meet the requirement set out in Wintwerp and Tam that recourse under article 5 should not controlled by a non-judicial body.
17. Third, reliance was placed on the availability of habeas corpus or judicial review. That argument raises issues that are specific to the problem that arises under section 29(4), and will be dealt with under that heading.

Section 2 orders and the incompetent patient

18. As we have seen, there are undoubted, and as the judge thought conclusive, difficulties in applying article 5.4 to oblige the state to act on the incompetent patient's behalf. We also have to remember that the ECHR provides the court with a set of guiding principles, and not with a palm tree. Nevertheless, I cannot think that the scheme of protection for persons detained in cases of suspected unsound mind can have been intended to exclude, simply because of their mental inability, persons who find themselves in the position of MH. The matter may perhaps be tested by asking what reply the authors of the ECHR would have given had they been asked whether the particular language that they adopted in article 5.4 was intended to exclude from the protection of article 5 a person who, solely because of lack of capacity to do so, was unable to take proceedings. At least if they were English lawyers I suspect that they would have replied with a testy "of course not" worthy of the hypothetical parties in Shirlaw v Southern Foundaries [1939] 2 KB 206 at p227.
19. We have not been shown any ECHR authority that impedes that approach. Mr Morshead took us to the judgment of the ECtHR in TW v Malta (1999) 29 EHRR 185[43], where the court pointed to the difference of wording between article 5.3 and article 5.4, already observed. But that was a case of detention on a criminal charge, where the court was at pains to stress that recourse in an article 5.1.c case cannot be dependent on any initiative by the prisoner. That is far from concluding that in the converse case, where relief is in the first instance in the hands of the subject, but the subject is unable to obtain that relief, the court would hold that assistance to the subject in asserting the right was excluded.
20. I am therefore of opinion that the state is obliged by the general principles of protection that inform article 5 to place the incompetent patient in the same position as the competent patient, as nearly as it is possible to do so, with regard to access to the MHRT. How that should be done; and what exact relief this court should provide; are issues of more difficulty, which I address at the end of this judgment under the heading of remedies.

The section 29(4) problem

21. This case is more straightforward. The patient detained under section 2, whether competent or incompetent, is detained beyond the 28 day limit without adequate judicial supervision. When that occurs, the justification for his original detention, whether or not it has been approved by the MHRT, has expired, and he is detained just because of the existence of proceedings in respect of which he is a spectator. That will be so even if the County Court judge finds in favour of the nearest relative if the approved social worker appeals: see paragraph 4 above. I have no doubt that in those circumstances he should have the right to return to the MHRT to obtain a judicial decision on his continued detention. If the states wishes to avoid what it may think to be unnecessary and wasteful use of the MHRT it must find some way of disposing of section 29(4) proceedings in the way expounded by Baroness Hale of Richmond in the passage quoted in paragraph 12 above, rather than in the manner in which they appear to have been pursued in the present case.

Habeas Corpus and Judicial Review

22. The Secretary of State said that any such added relief was unnecessary. In an appropriate case the patient could bring either habeas corpus or judicial review proceedings. That of course would not avail the incompetent patient who could not bring any proceedings, whether before the MHRT or otherwise; but it was an appropriate means of recourse for the competent patient faced with detention under section 29(4). Perhaps unsurprisingly, we did not hear much in argument about habeas corpus, but Mr Morshead strongly urged the merits of judicial review as a substitute for recourse to the MHRT.
23. Until the incorporation of the ECHR into domestic law judicial review could not have served the necessary purpose, as the ECtHR recognised in paragraph 139 of its judgment in HL v United Kingdom (application 45508/99, 5 October 2004). Those limits were, however, said to have been removed by the decision of this court in R(Wilkinson) v Broadmoor Special Authority [2002] 1 WLR 419 where, on an application to cross-examine treating doctors in proceedings under articles 3 and 8 of the ECHR, the court held that it was entitled to reach its own view as to the compliance of the treatment with the ECHR, and that for that purpose the doctors should be cross-examined. That, however, was all that the court decided. As this court further held in R(N) v M [2003] 1 WLR 562 [39], citing the well-known warning of Lord Steyn in R(Daly) v Secretary of State [2001] 2 AC 532 [28], whatever the intensity or intrusiveness of intervention required of the court by the ECHR its role remains one of review, and it must not allow itself to be drawn into a merits challenge. But the proceedings before the MHRT, which the incompetent patient is deprived of under section 2, and all patients are deprived of under section 29(4), are indeed a merits challenge. Witholding of access to the MHRT cannot therefore be justified by substituting a process that by definition is not a merits challenge.
24. There is a further reason why recourse to judicial review, even if it were available, is quite inappropriate in this case. What the patient seeks is access to a skilled and specialist tribunal, the MHRT, which is uniquely able to make a professional assessment of his medical condition. It cannot possibly be sensible to substitute for that specifically targeted relief the general process of judicial review, conducted according to different rules by a judge who has no medical knowledge whatsoever.

Remedies

25. It was suggested that to place the state under an obligation to refer the case of an incompetent section 2 patient to the MHRT would both raise practical difficulties, and also involve some patients in unwelcome investigation of their cases. I do not understand the first of these problems. The doctors who examine the patient on admission should be able to determine whether he is competent to give instructions in relation to the MHRT. That is little different from other important and difficult decisions that they have to make about the patient's welfare and state of mind. If they conclude that he is incompetent, a mechanism must be provided for an automatic referral to the MHRT. There may be some cases where a patient positively does not want such a referral, and is competent to form that view. The MHRT, if so satisfied, would simply not proceed with the reference. It is difficult to see how that or any other related circumstance is unreasonable or unreasonably intrusive, given the considerable intrusion into the patient's life already caused by the original section 2 order.
26. I therefore consider, first, that a mechanism must be provided for the reference of the case of an incompetent patient to the MHRT in circumstances where a patient has a right to apply to the MHRT; and, second, that all patients should have a right to apply to the MHRT in respect of an extension of their section 2 detention by reason of the operation of section 29(4).
27. The two sources of remedy under the Human Rights Act 1998 are either a "reading down" of the statutory provisions under section 3; or a declaration of incompatibility under section 4. This aspect of the case was not dealt with satisfactorily, the argument for MH initially contenting itself with saying that she was "neutral" as to which course was taken. That will not do. As, for instance, the speeches in the House of Lords in Ghaidan v Mendoza [2004] 3 WLR 113 graphically illustrated, the issue of remedy is often the most difficult question in a human rights case. Parties who assert, as does MH, that the court must provide a remedy for a breach of the ECHR must, as in the case of any other remedy sought from a court, specify in detail what that remedy should be, so that it can be tested by argument and review.
28. Such consideration however rapidly reveals that the complaint in the present case, which I have found to be justified, is not that any part of the present 1983 Act positively offends against the ECHR; but that there is lacking from the scheme of the 1983 Act provisions that are necessary to make that scheme compliant with the ECHR. Although I am well aware of the guidance given by Lord Steyn in paragraph 50 of his speech in Ghaidan v Mendosa, that section 3 is the first resort, and section 4 only a last resort, I do not see how a process of reading down can be used to add to a statute provisions that it does not contain. What is needed in this case is amendment to add those provisions to the statutory scheme.
29. We had the benefit of submissions, principally from the Secretary of State, as to what declarations should be made in the light of the conclusions set out in these judgments, copies of which were provided to the parties in draft. The declarations that follow largely reflect the Secretary of State's submissions. I would merely draw notice to the fact that the declarations require reference to "a court", rather than specifically to the MHRT. That form is adopted in deference to the Secretary of State's submission that it would be consistent with his obligations under article 5 to provide effective relief through a court other than the MHRT, however unlikely that method would be in practice. I would therefore declare that

(i) section 2 of the Mental Health Act 1983 is incompatible with article 5.4 of the European Convention on Human Rights in that it is not attended by adequate provision for the reference to a court of the case of a patient detained pursuant to section 2 in circumstances where a patient has a right to make application to a Mental Health Review Tribunal but the patient is incapable of exercising that right on his own initiative;

(ii) section 29(4) of the Mental Health Act 1983 is incompatible with article 5.4 of the European Convention on Human Rights in that it is not attended by provision for the reference to a court of the case of a patient detained pursuant to section 2 of that Act whose period of detention is extended by the operation of the said section 29(4).

Lord Justice Wall :

30. I have had the advantage of reading Buxton LJ's judgment in draft. I agree with it, and with the declarations of incompatibility he proposes. I add a short judgment of my own on the two principal questions raised by the appeal. I do so because of the importance of the issues raised, and because we are disagreeing with the judge in relation to them. I do not wish to add anything to what Buxton LJ says in relation to habeas corpus and judicial review.
31. In Re F (Adult: Court's Jurisdiction) (Re F) [2001] Fam.38, this court identified a lacuna in section 1(2) of the Mental Health Act 1983 (the Act) which it held the court could cure by reference to the common law doctrine of necessity and the use of declaratory relief. T, the incapable adult in that case, was mentally impaired, but her impairment was not "associated with abnormally aggressive or seriously irresponsible conduct" on her part. As a consequence she did not fall within the criteria for "mental impairment" laid down in section 1(2) of the Act, and it was not possible for the court to make a guardianship order in relation to her under section 7. As she would otherwise have been unprotected, however, this court held that the High Court had an inherent jurisdiction to make declarations as to what was in her best interests. It had jurisdiction, accordingly (if such a course was warranted by the facts) to make a declaration that it was in her best interests to remain in local authority accommodation and for the local authority to restrict and supervise her contact with her mother.
32. This appeal raises a distinct but related topic. In the instant case, MH was initially admitted to hospital on 31 January 2003 following the execution of a warrant under section 135(1) of the Act, and she was then detained for assessment under section 2. The local authority was able to invoke section 135(1) and section 2 of the Act because, as the medical report prepared by MH's responsible medical officer (RMO) stated in his report for the Mental Health Review Tribunal (MHRT) which was finally held on 26 March 2003 on a reference by the Secretary of State under section 67 of the Act, there was both "past and present evidence of abnormally aggressive and seriously irresponsible conduct". Unlike T in Re F, therefore, MH's condition fell within the restrictive definition of "(severe) mental impairment" in section 1(2) of the Act.
33. MH's detention was due to expire after 28 days on 28 February 2003. However, as Buxton LJ relates in paragraph 3 of his judgment, that detention was automatically extended by the operation of section 29(4) of the Act, although the application to displace MH's mother as nearest relative never seems to have been listed and, meanwhile, a guardianship order under section 7 of the Act was made on 7 August 2003.

The first question in this appeal

34. I turn immediately to the first of the two issues we are asked to decide. The judge formulated it in the following way: "Does Article 5(4) of ECHR require there to be an automatic review of the lawfulness of a patient's detention where the patient lacks the capacity to make her own application for a review of the lawfulness of her detention?"
35. Article 5(1) and (4) of the Convention read as follows: -

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …..

(e) the lawful detention ….. of persons of unsound mind ….

4. 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 by a court and his release ordered if his detention is not lawful.

36. The judge addressed this question after having first decided that section 66(1) of the Act, which provides for applications to MHRTs, was not incompatible with Article 5(4) of the Convention. In so doing, he accepted the argument advanced by the Secretary of State that the wording of Article 5(4) gave the right "to take proceedings" and that the wording of Article 5(4) did not include a requirement for, or a right of automatic review. A citation from X v United Kingdom (19810 4 EHRR 188 reinforced his view that: -

Article 5(4) does not require there to be an automatic review of the lawfulness of a patient's detention but it will be satisfied if the detainee can institute proceedings to challenge the lawfulness of his detention.

37. In addressing the applicability of Article 5(4) to the case of an incompetent patient, the judge accepted the submission made by Mr. Bowen for MH that the power given by section 67 of the Act to the Secretary of State to refer the case of any patient to a MHRT at any time "if he thinks fit" did not, in itself, provide an adequate safeguard. The judge gave two reasons for this. The first was that the Secretary of State could only exercise the power after a request had been made to him. Thus since a patient in MH's position lacked the capacity to make the request and had nobody to make it for her, the power would not be exercised. The second was that the exercise of a right by a patient under Article 5(4) could not be dependent upon the exercise of another power by a member of the executive which may or may not be exercised in the patient's favour.
38. I respectfully agree with the judge on both points. However, when he addresses the specific question which I have set out at paragraph 34 above, the judge goes on to give two reasons for rejecting Mr. Bowen's submission in relation to it. Firstly, he relies on his previous finding that Article 5(4) does not confer a right on the part of a patient to an automatic review. Secondly, he finds that there are adequate procedural safeguards in place for the protection of patients detained under section 2 of the Act. He accepts the submission made on behalf of the Secretary of State that of critical importance is the fact that this was a section 2 detention which, he says:

…. for two reasons by its nature is of an inherently short duration. First, as I have explained, the patient could apply to the Tribunal within the first 14 days of his or her detention pursuant to section 66(1)(a) and (2)(a) of the 1983 Act. Second, it is more important that section 2(4) of the 1983 Act requires that the patient be released at the end of the 28 day period, regardless of whether any application has been made to the Tribunal in the meantime unless a different legal basis for the patient's continuing detention has since emerged.

39. The judge accordingly regarded the safeguard of automatic release at the end of 28 days as a better safeguard for a patient detained under section 2 of the Act than an "automatic review", and rejected the argument that there should be an automatic review for a patient who lacks the capacity to make his own application.
40. I find myself unable to accept the judge's reasoning in relation to the first issue on a number of grounds. The first and most fundamental is that I do not regard what may be an unlawful detention of 28 days in a hospital under section 2 of the Act without access to a MHRT as being "of an inherently short duration" so as to render Article 5(4) safeguards against its unlawfulness otiose in the case of the mentally incapable.
41. In testing the proposition that 28 days is a period of inherently short duration, it seems to me appropriate to look at the length of time which the Act regards as the appropriate duration of emergency procedures, the implementation of which the person affected has no right of challenge. Such periods are measured in hours, not days. Section 135 of the Act provides a good example. By section 135(3) a patient who has been removed to a place of safety in the execution of a warrant issued by a justice of the peace under Section 135 may be detained there under the warrant for a period not exceeding 72 hours. If, within that period no other lawful basis for his detention is created, he must be released.
42. To take another example from a different jurisdiction, an emergency protection order taken under section 44 of the Children Act 1989 for the protection of a child may last for up to eight days in the first instance, but the maximum period allowed before the order can be challenged in court is 72 hours: - see Children Act 1989, section 45(9).
43. Speaking for myself, I would measure periods of "inherently short duration" in terms of hours rather than days, and I would regard 72 hours in the context of section 135 as such a period. That is not, of course, to say that such a period of detention may not be unlawful if section 135 has been improperly applied: the significance of the time frame is that the person detained is released at the end of it unless a lawful cause of further detention is created. Thus in cases of suspected serious mental illness, as with suspected child abuse, it is not unacceptable and may well be necessary for the state to use its powers of detention for a period of hours before either an alternative system of lawful detention is created (which must itself be capable of challenge) or the patient is released. In my judgment, it is not possible to extend the concept of inherently short duration to 28 days.
44. The second, and equally powerful objection to the judge's approach lies in the fact that the state has recognised and implemented a means of challenge to the 28 days period for those capable of making the challenge. In this context, there is, I think, no answer to the questions Buxton LJ poses in paragraph 8 of his judgment in relation to the imbalance between the competent and the incompetent patient. It is, to my mind, simply not tenable to suggest that protection under the Act is only afforded to those capable of asking for it. Indeed, the fact that the State has in section 66(1)(a) and (2)(a) provided a careful structure for swift access by competent patients to MHRTs (which themselves have to be constituted within a period of 7 days from the application being made) reinforces, in my judgment, the need for equivalent provision to be put in place for the incompetent patient who, by definition, is more vulnerable and is incapable of making such an application.
45. It may be a trite or simplistic observation, but article 5(1) and (4) apply to "everyone". Article 5(4) entitles everyone deprived of his or her liberty to take proceedings to challenge the lawfulness of their detention. The right to apply to a MHRT is not given only to those who are capable of exercising it. So to hold, it seems to me, depletes the right of any meaning so far as the incompetent patient is concerned.
46. I have already pointed out that in accepting Mr. Bowen's submission that a reference to a MHRT by the Secretary of State under section 67 of the Act is an inadequate safeguard, the judge gives as one of his reasons the fact that, because the Secretary of State can only react to an application, the Tribunal will not take place because the patient is incapable of making the request. In my judgment, the same reasoning applies to an application for a Tribunal within the 28 days period. If the incompetent patient is incapable of making the application, the patient has no safeguard. Furthermore, of course, as the events of this case demonstrate, there was no automatic release at the end of the 28 day period.
47. For all these reasons, I am in complete agreement with Buxton LJ that the absence of any mechanism enabling an incompetent patient to apply to a MHRT within the 28 day period of admission and detention for assessment provided by section 2 of the Act renders it in this respect inconsistent with Article 5(4) of ECHR, and I would make a declaration of incompatibility under section 4 of the Human Rights Act 1998 in the terms proposed by Buxton LJ in paragraph 29 of his judgment.

The second question in this appeal

48. Buxton LJ neatly describes this as "the section 29(4) problem". It only arises, of course, where there is an application to the county court to replace the patient's nearest relative on the grounds provided by section 29(3)(c) of (d) of the Act, namely: -

(c) that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient; or

(d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or guardianship under the Part of this Act, or is likely to do so.

49. The judge's principal answer to the proposition that section 29(4) left the patient (whether competent or incompetent) without recourse to a MHRT until the application to replace the nearest relative had been finally disposed of (section 29(4)(a)) was that

…. where the section 29 application is made with a view to a guardianship application rather than for the purpose of an admission for treatment, the existence of the duty of the county court to exercise its powers under section 29 of the 1983 Act in accordance with its duties as a public body under section 6(1) HRA 1998 is of critical importance. Those duties, which require the county court "not to act in a way which is incompatible with a Convention right" would and should prevent the section 29(4) procedure from becoming so protracted so as to require a new and fresh right to another article 5(4) review. This answers the claimant's complaints about the lack of sufficiency of the grounds of appeal to the Tribunal under section 66 of the 1983 Act or as a consequence of the section 29(4) procedure. Thus, this claim also fails.

50. Like Buxton LJ, I am not persuaded by this reasoning. On the practical front, the application to displace MH's mother was lodged on 27 February 2003. Although the circuit judge gave directions on 27 March 2003 for the hearing of the application with a view to all the evidence necessary for its disposal being in place by May 1, 203, no date had been fixed for it by the time the proceedings for judicial review came before the judge on 22 January 2004. By that time, MH had been admitted into guardianship.
51. Not only, of course, did MH not have any right of recourse to an MHRT throughout this period, she was also not a party to the section 29 application, and had no control over the timing or the manner in which it was processed. And as Buxton LJ points out, the issue before the country court is not directly related to the patient, but to the suitability of the nearest relative.
52. I cannot but contrast the procedure under section 29 with that under the inherent jurisdiction, where the patient is represented by the Official Solicitor with all the resources at his command, and both the nearest relative and the local authority can be represented in a hearing before a High Court Judge of the Family Division which is both fully informed and swiftly convened.
53. I therefore find myself in complete agreement with Buxton LJ's analysis on the section 29(4) point, and like him, would grant the declaration of incompatibility identified in paragraph 29 of his judgment.

Remedies

54. It is plainly not for this court to re-write the statute. In practical terms, however, and subject to any further argument on the point, I do not see any major difficulty in ensuring access to MHRTs for incompetent patients admitted under section 2 of the Act and patients whose cases fall within section 29(4). Unfortunately, the mental health charity MIND, (which initially applied to intervene in the appeal but, in the event, provided only written material for us to consider) was unable to provide any statistics identifying the extent of the problems thrown up by this case. But in any event, it is plain that in its operation of section 2, the system is able to convene a MHRT swiftly for any patient who applies for one. I accept that not every competent patient admitted under section 2 necessarily requires a MHRT. However, under section 68 of the Act, the managers of the hospital have a duty to refer particular cases to a MHRT, and it would not seem to me to be administratively very difficult to devise a system in which hospital managers were under a duty to refer incompetent patients admitted under section 2 to a MHRT within the time limits laid down by section 66(2)(a). I would equally have thought that it would be possible at the same time for the hospital managers to identify a solicitor from the panel of solicitors regularly representing patients at MHRTs at the particular hospital to represent the patient. A similar obligation could be placed on hospital managers in a situation to which section 29(4) applied.
55. I would therefore allow the appeal and make the two declarations of incompatibility identified by Buxton LJ.

Mr Justice Lindsay:

56. I agree with the judgment of Buxton LJ, which I have had the advantage of reading in draft. I add only two matters.
57. First, like Wall LJ (see paras 40-43 above) I cannot regard a detention of 28 days as being "of an inherently short duration". But I would go further. Reference to any such period would father a notion that there is some tolerable period, determined by rule of thumb on what would be, so to speak, a "one size fits all" basis, during which a detention could in all mental health cases properly be regarded as unchallengeable, irremediable by or on behalf of the patient and not requiring review. Even worse, such a notion, were it to be called to into existence, could pass by analogy, like a disease transmissible across species, to detentions on grounds other than mental health. But the legislation, which (enacted, as it was, before the Human Rights Act) could so easily have provided some such "safe" period, makes no such provision. There is no express fixing of some such period for general applicability nor room to imply one, nor any mention of any period of "inherently short duration". Further, I would doubt that any such "safe" period, even were there to be one, could be fixed simply by reference to clock or calendar; the period appropriate, if any were, to, say, violent or self-harming, tranquillised or sedated patients would surely need to reflect their particular respective and different conditions. Even the broadest guidance (such, for example, that the "safe" period should be a matter of hours not days) could mislead; one could hardly have 72 hours being acceptable but 3 days being not. Any search for what I have called a "safe" period is, in my judgment, misconceived; the subject is so intensely fact-sensitive, case by case, that the creation of a general rule should not even be attempted.
58. Secondly, I need to comment upon an argument advanced by the Secretary of State. It depends on a distinction being drawn between the language of Article 5.3 "(Everyone …. detained in accordance with the provisions of paragraph 1 (c) …. shall be brought promptly before a Judge …)" and the language of Article 5.4 "(Everyone who is deprived of his liberty … shall be entitled to take proceedings …)". That distinction led Mr Morshead to argue that under Article 5.4 it was only he or she who was deprived of his or her liberty that was to be entitled, him – or herself, to take proceedings by which the lawfulness of the detention was to be decided. Were a rigorously literal approach to be appropriate some force could be attributed to such an argument but it has to be remembered that the Convention of which 5.4 forms part is intended to cope with the whole range of those deprived of their liberty by arrest or detention throughout the numerous jurisdictions which have subscribed to the Convention, many deploying a more purposive approach than was traditionally used here. Within those jurisdictions there will doubtless be many different circumstances in which one person is entitled or required to bring proceedings in the name of or on behalf of another. If one restricts Article 5.4 so that only the very person detained or deprived of liberty can "take proceedings" to determine the lawfulness of the detention then one would have arrived at a construction as if the Convention had read "Everyone who has capacity himself to bring such proceedings … shall be entitled to take proceedings". That is not what 5.4 says and, in its context, the word "Everyone" is plainly shorthand intended to enable not only the very person who is deprived of liberty to take proceedings but, where some other is, by the relevant domestic law, authorised or required to proceed in that person's name or on that person's behalf, to ensure that he, too, should be entitled to take the proceedings. The Crown's construction would or might preclude Article 5.4 applications in all sorts of cases, including the detention of persons under 18, well beyond those with mental disorder. I cannot think that that was intended either by those subscribing to the Convention or by Parliament in its enacting of the Human Rights Act 1998.
59. As for relief, I agree the form proposed by Buxton LJ.

ORDER: Appeal allowed. The court declares:

(1) that section 2 of the Mental Health Act 1983 is incompatible with Article 5 (4) of the European Convention on Human Rights, in that it is not attended by adequate provision for the reference to a court of the case of a patient detained pursuant to section 2 in circumstances where a patient has a right to make an application to a Mental Health Review Tribunal but the patient is incapable of exercising that right on his own initiative.

(2) that section 29 (4) of the Mental Health Act 1983 is incompatible with Article 5 (4) of the European Convention on Human Rights, in that it is not attended by a provision for the reference to court of the case of a patient detained pursuant to section 2 of that Act whose period of detention is extended by the operation of the said section 29 (4).

The respondent to pay the appellant her costs of this appeal, to be assessed on the standard basis if not agreed.

Application for permission to appeal to the House of Lords refused.

The order for costs made below to stand.

(Order does not form part of approved Judgment)