HM/2774/2011

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

ON AN APPEAL

 

Decision and Hearing

 

1. This appeal by the appellant does not succeed. I confirm the decision of the Judge of the First-tier Tribunal (Health, Education and Social Care Chamber) made on 27^th July 2011 (under reference MM/2010/13753) to refuse to admit the application made by MA (the nearest relative of the patient AA) or for her application of 14^th July 2011 to be treated as “valid”.

 

2. I held an oral hearing of this appeal on 21^st September 2011. The appellant (MA), the wife and nearest relative of a hospital patient (AA), was represented by Mr Stephen Simblet of counsel, instructed by Burke Niazi, Solicitors. The Secretary of State for Health was the third respondent and was represented by Mr Ben Hooper of counsel. Neither the first respondent (the patient) nor the second respondent (a Mental Health NHS Trust) was separately represented. I am grateful to those present for their assistance in both their written and oral submissions.

 

The Relevant Mental Health Legislation

 

3. The following provisions of the Mental Health Act 1983 (“the 1983 Act”) are relevant:

 

Section 2

(1) A patient may be admitted to hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as “application for admission for assessment”) …

 

(4) Subject to the provisions of section 29(4) below a patient admitted to hospital in pursuance of an application for admission for assessment may be detained for a period not exceeding 28 days beginning with the day on which he is admitted, but shall not be detained after the expiration of that period unless before it has expired he has become liable to be detained by virtue of a subsequent application, order or direction under the following provisions of this Act.

 

Section 23

 

(1) Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained … shall cease to be so liable … if an order in writing discharging him absolutely from detention … is made in accordance with this section.

 

(2) An order for discharge may be made in respect of a patient –

 (a) where the patient is liable to be detained in hospital in pursuance of an application for admission for assessment or for treatment by the responsible clinician, by the managers or by the nearest relative of the patient.

 

Section 25

 

(1) An order for the discharge of a patient who is liable to be detained in hospital shall not be made under section 23 above by his nearest relative except after giving not less than 72 hours’ notice in writing to the mangers of the hospital, and, if, within 72 hours after such notice has been given, the responsible clinician furnishes to the managers a report certifying that in the opinion of that clinician the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself -

 

(a) any order for the discharge of that patient made by that relative in pursuance of the notice shall be of no effect, and

 

(b) no further order for the discharge of the patient shall be made by that relative during the period of six months beginning with the date of the report.

 

Section 29

 

(1) The county court may upon application … in respect of a patient, by order direct that the functions of the nearest relative of the patient … shall, during the continuance in force of the order, be exercisable the person specified in the order.

 

[The section then sets out who may make the application, who may be specified, and the grounds on which an order may be made, including unreasonable objection to the admission of the patient and unsuitability to act as a nearest relative as well as “(d) that the nearest relative has exercised without due regard to the welfare of the patient or the interests of the public his [or her] power to discharge the patient … or is likely to do so”. The section then continues as follows.]

 

(4) If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for assessment, an application under this section … made on the ground [relating to unreasonable objection to the admission of the patient or on ground (d) in the previous paragraph] is pending in respect of the patient, that period shall be extended –

(a) in any case, until the application under this section has finally been disposed of; and

(b) if an order is made in pursuance of the application under this section, for a further period of seven days.

 

4. Section 29(4) also defines what is meant by “finally disposed of” and “pending”. In note that an application to the county court for an order under section 29 can result in a considerable extension of the normal 28 day limit on a section 2 admission.

 

5. Section 66 of the 1983 Act deals with applications to tribunals (“a section 66 application”). In the present case this would be to the First-tier Tribunal. Applications may be made in a wide range of circumstances. By virtue of section 66(1) (g) these include where a report has been made under section 25 of that Act (see above – this relates to the responsible clinician issuing a certificate to the effect specified in section 25). However, an application to the tribunal may only be made under this provision in respect of a patient who has been admitted for treatment (or in certain other cases) but not in respect of a patient who has been admitted under section 2 for assessment. That exclusion is at the heart of this case.

 

Background and Procedure

 

6. On or about 6^th June 2011 AA was detained in hospital under the provisions of section 2 of the 1983 Act (admission for assessment – see above). He made his own application to the First-tier Tribunal to be discharged from his liability to be detained under section 2. Separately, on 22^nd June 2011, MA exercised her right to give notice that she proposed to exercise her own power of discharge as the nearest relative. On 24^th June 2011 the First-tier Tribunal dismissed AA’s own application for discharge. That is not the subject of these proceedings before me. On the same day the responsible clinician issued a report under section 25(1) of the 1983 Act which had the effect of cancelling MA’s right to discharge AA. (This was confirmed by the hospital managers on 29^th July 2011). Moves were afoot to further detain AA for treatment under the provisions of section 3 of the Act. MA objected to this.

 

7. Meanwhile, on 13^th July 2011 the local authority commenced county court proceedings under section 29 of the 1983 Act to displace MA as the nearest relative. The aim was to remove her right to object to the further detention of AA. This also had the effect under section 29(4) of extending AA’s liability to be detained until the county court proceedings had been dealt with. On 14^th July 2011 MA sought to make a section 66 application to the First-tier Tribunal. Before this was dealt with, the county court refused to make an order displacing MA as nearest relative until the matter could be fully considered, which it proposed to do on 1^st September 2011. There were further tribunal proceedings in respect of AA, after which the county court proceedings were settled: the displacement proceedings were deemed to be withdrawn as of 14^th September 2011, upon which the operation of section 29(4) would cease and AA would be discharged from compulsory detention. AA was in fact discharged from hospital on or around 20^th September 2011 and (as I understand it) has not since then been further detained.

 

8. Meanwhile, on 27^th July 2011 First-tier Tribunal Judge Westcott decided that MA’s section 66 application of 14^th July 2011 could not be treated as “valid”. I am not sure that this is the correct terminology. In reality I suspect that the First-tier Tribunal was refusing to admit the application because it had no jurisdiction to consider it, but the end result is the same. The tribunal rejected MA’s argument that in a case where the operation of section 29(4) of the 1983 Act has extended a patient’s detention under section 2, the exclusion of the nearest relative’s right to make an application under section 66 of the 1983 Act breached the Human Rights Act 1988 and therefore section 66 should be read as if there were no such exclusion. That remains the central argument of MA’s case at the Upper Tribunal.

 

9. On 11^th August 2011 First-tier Tribunal Judge Pitt gave MA permission to appeal to the Upper Tribunal against the decision of Judge Westcott and on 27^th April 2012 I directed that there be an oral hearing of the appeal. There is no doubt that the First-tier Tribunal decision is an appealable decision and is not a decision excluded from the right to appeal to the Upper Tribunal by section 11(5)  of the Tribunals, Courts and Enforcement Act 2007 or by regulations (see also LS v London Borough of Lambeth [2010] UKUT 461 (AAC)).

 

The Relevant Human Rights Law

 

10. The main relevant provisions of the Human Rights Act 1998 are as follows (“Convention rights” refers to the provisions of the European Convention on Human Rights, which I also refer to as “the Convention”):

 

s3(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights.

 

s6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

 

s6(2) Subsection (1) does not apply to an act [of a public authority] if-

(a)   as a result of one or more provisions of primary legislation the authority could not have acted differently; or

(b)  in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions.

 

s6(3) In this section "public authority" includes –

(a)   a court or tribunal

 

s7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-

(a) …

(b)  rely on the Convention right or rights concerned in any legal proceedings

 

11. For the purposes of the present appeal, the main relevant provisions of the European Convention on Human Rights  are as follows:

 

Article 5:

 

5.1 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.

 

[The cases are:]

…

e. the lawful detention of … persons of unsound mind

…

 

5.4. 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 speedily by a court and his release ordered if the detention is not lawful.

 

Article 6:

 

6.1 In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …

 

Article 8:

 

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

 

8.2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights or freedoms of others.

 

Article 12

 

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of that right.

The Arguments

 

12. I leave aside for present purposes the issue of whether, if MA’s general argument is correct, there is a remedy available to the Upper Tribunal.

 

13. The parties are agreed that on the express wording of section 66 of the 1983 Act MA has no right to apply to the First-tier Tribunal.

 

14. Mr Simblet argued for MA that (certainly until displaced or until an adverse report is made) section 23 of the 1983 Act gives the nearest relative equal status with the others listed, assumes that the nearest relative is informed, caring and effective, and acknowledges that she can make her own assessment of the patient’s health and her ability to care for the patient. The nearest relative might legitimately take account of or give priority to factors that are different from those given priority by others, such as the responsible clinician, and the 1983 Act provides a mechanism for the resolution of any conflict. If article 8 is engaged, any restriction on the exercise of the rights protected must comply with article 6. The nearest relative, like others, may request the Secretary of State to refer a case to the tribunal but that does not provide for enforcement for the rights of the nearest relative. A hearing by the hospital managers is not an adequate remedy because it is much more narrowly focussed and the hospital managers are not a tribunal within the meaning of article 6. The county court proceedings are not an adequate remedy because the court is not deciding on release, the test is different and the proceedings actually delay the right to be discharged. Judicial review is not an adequate remedy [presumably because it is not appropriate for determining conflicts of evidence or making the kind of judgment sought in this case as to whether the patient should be discharged]. Accordingly, the exclusion by section 66 of the 1983 Act of MA’s right to apply to the First-tier Tribunal because AA’s detention was under section 2 of that Act would breach article 6, especially because the county court proceedings had the effect of extending the period of detention. Under section 3(1) of the Human Rights Act 1988 section 66 of the 1983 Act should be read as though there were no such exclusion. The protections given by articles 5,8 and 12 were at risk in the absence of such a course of action.

 

15. Mr Hooper argued for the Secretary of State that MH did not have a “right of discharge” which, in any event, is not a “civil right” for the purposes of article 6; that even if it is such a right, MA’s position is protected by her right to participate in the section 29 county court proceedings and by the availability of judicial review; that there is a wide range of safeguards to protect the interests of detained patients; that the right of the nearest relative to discharge a patient detained under section 2 of the 1983 Act is limited when compared with the others who may discharge or when compared with the right to object to detention for treatment; that article 6 cannot be used to enlarge or alter the content of domestic law rights. Such powers as are conferred on the nearest relative are to enable them to safeguard the rights and interests of patients, not in their personal capacity as a private individual and, in their essence, depend on the expert judgment of the responsible clinician.

 

16. Both counsel referred to a range of authorities, not all of which are of assistance in deciding this particular case.

 

Conclusions

 

(a) Breaches other than article 6

 

17. I cannot really see any reasonable argument that there were any actual breaches of articles 5, 8 or 12, although it is arguable that they were all engaged. Article 5 protects AA’s rights as a patient and no breach of his rights (independently of any breach of the nearest relative’s rights) is alleged in this present appeal. Article 8.2 clearly applies to what has happened in this case. There has been no breach of article 12 – the total compulsory detention here (even including the delayed release) did not exceed four months.

 

18. The real argument revolves around article 6. Do the rights of the nearest relative come within article 6 and (if so) was there any breach of them in respect of article 6. I emphasise that this appeal is about the independent rights of MA as the nearest relative, and not about the independent rights of AA as the patient.

 

(b) Is there a civil right within article 6?

 

19. “Nearest Relative” is defined in section 26 of the 1983 Act and there is a lengthy but clear hierarchy of which person is to occupy this position in preference to other relatives, commencing with husband or wife or civil partner. It is a specific status clearly defined and conferred by law. The nearest relative has a bundle of rights and functions under the legislation, many of which are listed in paragraph 2 of Mr Simblet’s written response of 23^rd February 2012. By virtue of section 23(2)(a) of the 1983 Act this does include a right to discharge. The fact that this right is subject to the provisions of section 25 of that Act or, as Mr Hooper put it, is “limited” is irrelevant, notwithstanding extensive written arguments from counsel on this point. Nearly all legal rights and powers are limited and much litigation and other legal procedures are about the extent of such limitations or how they work in a particular case. I also agree with Mr Simblet that section 29 of the 1983 Act is not specifically linked with the section 23 and 25 provisions. Section 29 covers a range of potential situations, including where there is no relative who is the nearest relative under section 26.

 

26. Mr Hooper argued that generally the concept of “civil right” within article 6 refers to what English law treats as private law rights and not to public law rights I do not understand Mr Simblet to be disputing this general proposition). Some rights under social security law had been treated as civil rights for the purposes of article 6 but he referred to the Supreme Court decision in Ali v Birmingham City Council [2010] UKSC 8; [2010] 2 AC 39. That case concerned the offer by the local authority of particular accommodation to particular unintentionally homeless single mothers. The latter complained that the court was not prepared to consider itself whether certain procedures had been complied with because these were questions of fact for the local authority reviewing officers, thus breaching the requirements of article 6. Lord Collins said (at paragraph 62):

 

“It is plain from the jurisprudence of the [European Court of Human Rights] that an important factor in the application of article 6(1) in disputes with public authorities in areas which in national law would normally be regarded as public law is the assertion by the applicant of what has been variously described as “an economic right” or an “individual, economic right” or a “purely economic right”.”

 

27. In paragraph 43 Lord Hope said:

 

“There are … a number of straws in the wind … that suggest that a distinction can indeed be made between the class of social security and welfare benefits … whose substance the domestic law defines precisely and those benefits which are in their essence dependent on the exercise of judgment by the relevant authority.” 

 

28. Mr Simblet referred to two decisions of the European Court of Human Rights. In Aerts v Belgium (1998) 5 BHRC 382, which concerned the detention of a mental patient, the Court held that the right to liberty was a civil right within the meaning of article 6.

 

29. In TP and KM v United Kingdom (2001) 4 CCLR 398 the Court treated litigation over the removal of children as engaging article 6 and held (in paragraph 97) that:

 

“Where there is a serious and genuine dispute as to the lawfulness of such an interference going either to the very existence or the scope of the asserted civil right, article 6(1) entitles the individual to have this question of domestic law determined by a tribunal”.

 

30. My conclusion is that the bundle of rights of a nearest relative conferred by the 1983 Act, and in particular the right to discharge, is/are (a) civil right(s) for the purposes of article 6 of the Convention. As I said above, being a nearest relative is a specific status clearly defined and conferred by law Although the rights do not involve economic rights, they do involve the protection of liberty, albeit that of the patient rather then of the nearest relative. The fact that the status is conferred upon a relative and that the hierarchy begins with the spouse or civil partner means that the nearest relative will usually have a close and intimate interest in the patient’s liberty (which might, incidentally, have economic effects. There are also what might be considered private law aspects in that continued detention can affect the matrimonial relationship with potential legal consequences). I acknowledge that the right to discharge might be displaced by a report from the responsible clinician but the existence of the right is not dependant on such a report in that the right is effective unless there is an adverse report. The existence of the right is the default position. It is not covered by the description given above by Lord Hope in Ali v Birmingham City Council.

 

(c) Has there been a breach of article 6?

 

31. In what I might refer to as the standard case, detention under section 2 of the 1983 Act does not exceed 28 days and although the nearest relative cannot make an application to the Upper Tribunal (because of the section 66 exclusion) she can request the Secretary of State to refer the matter to the tribunal, and the patient can make an application. Article 6 refers to a hearing “within a reasonable time” and in these circumstances it seems to me to be unnecessary to provide a separate right for the nearest relative to apply to the First-tier Tribunal. If the proper procedure is not followed by the hospital authorities or by the Secretary of State their responsibilities can be enforced by judicial review proceedings.

 

32. However, in the current proceedings are dealing with the special case where county court proceedings have the knock on effect of extending the 28 day period, perhaps for a very long period. This raises the question of whether in these circumstances the absence of a right of the nearest relative to apply to the First-tier Tribunal breaches the provisions of Article 6. In my view, in the present case, it does not. The nearest relative is a party to the county court proceedings, with all the attendant rights of a party to give evidence, make submissions, be represented and so on. Mechanisms exist for the expedition of hearings and decisions in appropriate cases. Although the county court proceedings themselves do not deal with the issue of whether the patient should be discharged, if (as in the present case) the county court does not displace the nearest relative, that relative’s rights are preserved. If there is any subsequent failure by the hospital authorities or by the Secretary of State to respect the county court’s decision or to follow proper procedures, judicial review is an adequate remedy.

 

33. In a case where it is alleged that the admission for assessment was unlawful but the county court proceedings have extended the period of detention following that admission and the nearest relative is excluded from applying to the tribunal to determine that issue (which the county court will probably not be considering), again, it seems to me that the availability of judicial review is an adequate remedy, especially as (these days) the court exercising the judicial review jurisdiction can consider written evidence, including medical evidence. I also note that the High Court can transfer any such proceedings to the Upper Tribunal (AAC) where (for example) they can be considered together with any pending appeal against any related First-tier Tribunal decision.

 

34. That leaves a possible gap where detention for assessment has been extended significantly beyond 28 days and the nearest relative argues that there are primary facts to be resolved (for example, as to identity or whether the patient did or did not engage in any particular conduct) or there is need for the First-tier Tribunal to use its own expertise to adjudicate between conflicting expert psychiatric reports, neither of which can readily be done on judicial review. No submissions have been made that any of these matters arise in the present case and I prefer not to deal in this decision with that hypothetical case.

 

35. For the above reasons this appeal does not succeed.

 

 

H. Levenson

Judge of the Upper Tribunal

 

20^th December 2012