MH, R (on the application of) v Mind (The National Association for Mental Health) & Ors

MH is a 32 year old single woman with severe learning disabilities as a result of suffering from Downs’ Syndrome. She has now been admitted into guardianship under the Mental Health Act 1983 (“the 1983 Act”). As a result of various amendments to the claim, the claimant now seeks permission in these proceedings to obtain two declarations of incompatibility pursuant to section 4 of the Human Rights Act 1998 (“HRA”) against the Secretary of State for Health and in addition, declaratory relief in respect of a decision of the Mental Health Review Tribunal (“the Tribunal”) dated 26 March 2003. At the outset of the hearing, I gave permission to the claimant to pursue each of these claims and I then proceeded to hear the substantive applications.

The Secretary of State not only disputes the claims against him but, during his counsel’s submissions, it was contended for the first time that the claims for relief are academic as the claimant cannot derive any benefit from the present application with the automatic consequence that I should dismiss them. Thus, it was said that the claimant had no interest in the present proceedings and this raised an important issue which no counsel was then in a position to argue. I therefore adjourned this issue for consideration on a later occasion whether any of these claims could in those circumstances be pursued. The hearing of that issue was adjourned to be heard on 12 December 2003. Very shortly before this point was due to be argued, the Secretary of State abandoned the contention that the claims should be dismissed because they were academic. In order to understand the dispute between the parties on the outstanding claims, it is now necessary to set out the background to these claims.

Until her admission to hospital on 31 January 2003, the claimant lived at home with her mother, Mrs. Brenda Lewis, who was her sole carer and who was formerly her litigation friend for the purpose of these proceedings.

On 31 January 2003, a social worker employed by Telford and Wrekin BC (“Telford”) executed a warrant from the Magistrates Court under section 135 of the 1983 Act to enter Mrs. Lewis’ premises and to take the claimant to a place of safety.

Following the execution of the warrant, the claimant was taken to a hospital, which was managed by the Shropshire County NHS Primary Care Trust where she was made the subject of an admission for assessment pursuant to section 2 of the 1983 Act, which provides, insofar as is material to this application, that:-

“(1)

A patient may be admitted to a hospital and detained there for the period allowed by subsection (4) below in pursuance of an application (in this Act referred to as “an application for admission for assessment”) made in accordance with subsections (2) and (3) below.

(2)

An application for admission for assessment may be made in respect of a patient on the grounds that –

(a)

he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b)

he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons”

Very shortly afterwards, the claimant’s mother sought to discharge the claimant under section 23 of the Act, which provides that:-

“(1)

Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him from detention or guardianship (in this Act referred to as “an order for discharge”) 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 a hospital in pursuance of an application for admission for assessment or for treatment by the responsible medical officer, by the managers or by the nearest relative of the patient;

(b)

where the patient is subject to guardianship, by the responsible medical officer, by the responsible local social services authority or by the nearest relative of the patient”.

There is a procedure in section 25 of the 1983 Act by which the responsible medical officer (“RMO”) of a patient can issue a section 25 “barring order”, which prevents the discharge sought by a relative under section 23 of the Act from taking place on the grounds that the patient “if discharged, would be likely to act in a manner dangerous to other persons or to himself”. In this case, the claimant’s RMO, Dr. Langton, issued such an order on those grounds.

The relevant provisions of section 25 of the 1983 Act provide that:-

“(1)

An order for the discharge of a patient who is liable to be detained in a hospital shall not be made by his nearest relative except after giving not less than 72 hours’ notice in writing to the managers of the hospital; and if, within 72 hours after such notice has been given, the responsible medical officer furnishes to the managers a report certifying that in the opinion of that officer 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 the 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”.

On 18 February 2003, the hospital managers convened to review the decision to issue the barring order, but the section 2 admission for assessment of the claimant had a life of 28 days and so it would normally have expired on 28 February 2003. On 21 February 2003, Mr. Mark Gibson, a social worker employed by Telford and approved under the 1983 Act, visited the claimant’s mother to seek her consent to the making of a Guardianship order in respect of the claimant under section 7 of the 1983 Act, which insofar as is material provided that:-

“(1)

A patient who has attained the age of 16 years may be received into guardianship, for the period allowed by the following provisions of this Act, in pursuance of an application (in this Act referred to as “a guardianship application”) made in accordance with this section.

(2)

A guardianship application may be made in respect of a patient on the grounds that -

(a)

he is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants his reception into guardianship under this section; and

(b)

it is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received.

(3)

A guardianship application shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include -

(a)

such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraph (a) of that subsection; and

(b)

a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (b) of that subsection”.

The claimant’s mother refused to consent to that application with the result that on 27^th February 2003, Mr. Gibson lodged an application to Telford County Court under section 29 of the 1983 Act, which would have had the effect of displacing the claimant’s mother as her nearest relative. Section 29 of the 1983 Act provides, insofar as is material to this application, that:-

“(1)

The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by the applicant, or by any other person specified in the application, being a person who, in the opinion of the court, is a proper person to act as the patient’s nearest relative and is willing to do so.

(2)

An order under this section may be made on the application of –

……

(c)

an approved social worker;

but in relation to an application made by such a social worker, subsection (1) above shall have effect as if for the words “the applicant” there were substituted the words “the local social services authority.

(3)

An application for an order under this section may be made upon any of the following grounds, that is to say –…….

(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 this Part of this Act, or is likely to do so”.

This application also had the effect of automatically extending the claimant’s detention because section 29(4) of the 1983 Act provides that:-

“If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for admission for assessment, an application under this section, which is an application made on the ground specified in subsection (3)(c) or (d) above, is pending in respect of the patient, that period shall be extended –

(a)

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

(b)

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

and for the purposes of this subsection an application under this section shall be deemed to have been finally disposed of at the expiration of the time allowed for appealing from the decision of the court or, if notice of appeal has been given within that time, when the appeal has been heard or withdrawn, and “pending” shall be construed accordingly”.

It is possible for applications to be made to the Mental Health Review Tribunal for discharge, but the claimant did not do so within the 14 day period required by section 66(2)(a) of the 1983 Act. She lacked the capacity to instruct solicitors. The relevant provisions of section 66 are:-

“(1)

Where –

(a)

a patient is admitted to a hospital in pursuance of an application for admission for assessment….. an application may be made to a Mental Health Review Tribunal within the relevant period…..

(2)

In subsection (1) above “the relevant period” means -

(a)

in the case mentioned in paragraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned”.

The claimant’s mother as her nearest relative was unable to make such an application because once the section 29 application had been instituted, there were no means by which the claimant or the claimant’s mother could then apply to the Tribunal. It is convenient to set out the grounds for applying for a discharge, which are set out in section 72(1) of the 1983 Act, and which, insofar as is material, provides that:-

“Where application is made to a Mental Health Review Tribunal … in respect of a patient who is liable to be detained under this Act, the Tribunal may in any case direct that the patient be discharged, and –

(a)

the Tribunal shall direct the discharge of a patient liable to be detained under section 2 above if they are not satisfied:-

(i)

that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or

(ii)

that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons”.

On 6 March 2003, the claimant’s solicitors requested the Secretary of State to make a reference to the Tribunal under section 67 of the 1983 Act, which, insofar as is material, provides that:-

“(1)

The Secretary of State may, if he thinks fit, at any time refer to a Mental Health Review Tribunal the case of any patient who is liable to be detained or subject to guardianship…”.

That reference was duly made and on 26 March 2003, the Tribunal convened to hear the reference. The Tribunal heard the application on 26 March 2003, but it refused to discharge the claimant and it is the reasoning for that decision which is the basis of the application for declaratory relief against the Tribunal, which is the third application to which I have referred and which I will describe in greater detail when I consider it in Section VIII of this judgment.

On 27 March 2003, at the Telford County Court, Judge Mitchell gave directions for the hearing of Telford’s application to displace the claimant’s mother as the nearest relative. Under those directions, it was envisaged that all evidence necessary for resolving the application would be lodged by 1 May 2003 with time estimates for a full hearing to be given at that stage. Unfortunately, it seems that no date has yet been fixed for the final hearing.

Telford was unable for a period of time to find suitable residential accommodation in which to place the claimant, either before the making of the Guardianship order or following such an application. Such accommodation was eventually found and the claimant was moved there on 21 July 2003. On 1 August 2003, an interim placement order was made by the County Court and on 7 August 2003, the claimant was admitted into Guardianship.

On 20 May 2003, the claimant had commenced the present judicial review proceedings against the Secretary of State, the Tribunal and Telford. The claim against Telford related to its alleged failure to provide the claimant with suitable accommodation.

The claimant subsequently applied to have Telford County Court added as a fourth defendant in the proceedings and the allegation against it was that it had failed to determine Telford’s application under section 29 of the 1983 Act to displace the claimant’s nearest relative expeditiously and in manner which was compatible with the claimant’s rights under article 5(1) and/or (4) of the European Convention on Human Rights (“ECHR”). The relevant parts of article 5 state that:-

“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…..

3.

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power….

4.

Everyone who is deprived of his liberty by …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”

On 22 July 2003, Stanley Burnton J ordered that Telford County Court be joined as the fourth defendant in these proceedings and also that the claimant’s mother, Mrs. Brenda Lewis, be replaced as a litigation friend by the Official Solicitor, who is now responsible for pursuing the present claim.

It is now accepted on behalf of the claimant that the reason for her detention until 21 July 2003 was first that no suitable accommodation was available for her, second that Telford did not delay unreasonably in finding that accommodation and third, that the Telford County Court had not acted incompatibly with the claimant’s rights. In consequence, the claim against Telford and the Telford County Court is no longer pursued, but they, together with the National Association for Mental Health (“MIND”) remain as Interested Parties. MIND has adduced helpful evidence but neither of the other Interested Parties have submitted evidence or been represented at the hearing in front of me.

The claimant no longer has any personal interest in the outcome of any of the four outstanding applications, which are claims for:-

“(1)

A declaration that section 66(1) Mental Health Act 1983 is incompatible with the Claimant’s Convention rights, article 5(4), insofar as it places the onus upon the detained patient to make an application for discharge to the Mental Health Review Tribunal.

(2)

Further or alternatively, a declaration that section 66(1) Mental Health Act 1983 is incompatible with the Claimant’s Convention rights, article 5(4), insofar as neither the Claimant, nor her nearest relative acting on her behalf, has the right to make an application for discharge to the Mental Health Review Tribunal where the patient is detained for assessment under section 2, the nearest relative has sought to discharge her under section 23 Mental Health Act 1983 and the RMO has issued a ‘barring order’ under section 25 Mental Health Act 1983.”

(3)

Further or alternatively, a declaration that section 29(4) Mental Health Act 1983 is incompatible with the Claimant’s Convention rights, article 5(1), insofar as it authorises the indefinite detention of a patient admitted under section 2 Mental Health Act 1983 where an application has been made to displace the patient’s nearest relative under section 29(1) for the purposes of making a guardianship application.

(4)

Further or alternatively, a quashing order in respect of the Tribunal’s decision dated 26 March 2003.” The claimant now only seeks declaratory relief as she is no longer detained.

III The Issues

It is convenient to comment on the issues raised on this application in the following order, namely:-

(1)

the compatibility of section 66(1) of the 1983 Act with article 5(4) as raised by declaration 1 (Issue 1);

(2)

whether article 5(4) of the ECHR requires an automatic review of the lawfulness of a patient’s detention where the patient lacks capacity to make her own application for a review of the lawfulness of her detention as contended in part of declaration 2 (Issue 2);

(3)

whether article 5(4) of the ECHR requires that a patient should have a right for the lawfulness of her detention to be reviewed where (i) she is admitted to hospital under section 2 of the 1983 Act, (ii) her nearest relative has exercised her power of discharge under section 23 of the 1983 Act, (iii) the RMO has issued a barring order under section 25 of the 1983 Act and (iv) the Social Services authority applies to displace the relative under section 29 with a view to making a guardianship application, as contended in declaration 2 (Issue 3);

(4)

whether section 29(4) of the 1983 Act infringes article 5(1) of the ECHR insofar as it authorises the indefinite detention of a patient admitted under section 2 of the 1983 Act where an application has been made to displace the patient’s relative under section 29 for the purposes of making a guardianship application as contended in declaration 3 (Issue 4);

(5)

whether the decision of the Tribunal of 26 March 2003 refusing to discharge the claimant from detention under section 2 of the 1983 Act was wrong in law because the Tribunal failed to consider the dangerousness criterion under section 25 in exercising its discretion under section 72(1) of the 1983 Act (Issue 5).

IV Issue 1 – The compatibility of section 66(1) of the 1983 Act with article 5(4)

Mr. Paul Bowen for the claimant contends that section 66(1) of the 1983 Act is incompatible with article 5(4) because it places the onus upon the detained patient to make an application for discharge to the Mental Health Review Tribunal. The incompatibility is said by Mr. Bowen to arise because there is not an automatic reference to the Tribunal of the case of the patient detained and the application for discharge cannot be made by the patient’s nearest relative.

His argument is that article 5(1) of the ECHR guarantees the right to liberty save in strictly limited circumstances while article 5(4) guarantees the right to the review of the lawfulness of detention by a “court”. Mr. Bowen points out that this review has to be “speedy” for a person of unsound mind, who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period (E v. Norway (1990) 17 EHRR 30). He then says that the review should be wide enough to bear on those conditions which are essential for the lawful detention of persons subject to the type of deprivation of liberty ordered (Hutchison Reid v. United Kingdom 20 February 2003, App No. 50272/99 [64]).

A critical aspect of Mr. Bowen’s submission is that there has to be an automatic reference, rather than a facility to consider the lawfulness of the detention after an application has been made by or on behalf of the patient. He points out that a patient, who is detained under section 2, has only one opportunity to apply to a Mental Health Review Tribunal for discharge within 14 days of his or her admission (section 66(1)(a) and section 66(2)(a) set out in paragraph 11 above). This limited right, he says, does not comply with article 5(4).

In response, Mr. Timothy Morshead for the Secretary of State points out correctly in my view that the wording in article 5(4) of the ECHR gives the right “to take proceedings”. He contends that that wording does not include a requirement of an automatic review, but that it merely gives a right to bring proceedings. He fortifies that point by contrasting the right in article 5(4) to “take proceedings” with the right to be “brought” before a judicial authority as stipulated in article 5(3), where the detention occurs under article 5(1)(c). I agree that, subject to any decided cases, a right “to take proceedings” does not mean a right of automatic review or right to be brought before a judicial authority, irrespective of whether an application is made.

The claimant has been unable to point to any cases to support the view that article 5(4) called for an automatic review. Indeed, in X v. United Kingdom (1981) 4 EHRR 188, it was decided by the Strasbourg Court that where a patient does not have a right of automatic view, article 5(4) then only requires the State to ensure that the detained person is entitled “to take proceedings at reasonable intervals before a court to put in issue the “lawfulness” [within the meaning of the Convention] of his detention whether that detention was ordered by a civil or criminal court or by some other authority” [52]. This passage indicates that a State need not provide automatic periodic reviews so long as the detained person is entitled himself to take proceedings to review the lawfulness of his detention at reasonable intervals. This reinforces my 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.

More recently, it was explained by the Strasbourg Court that the court’s case law on Article 5 (4) establishes that this right that:-

“a person of unsound mind who is compulsorily confined for an indefinite or a lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness”- within the meaning of the Convention- of his detention” ( Megyeri v. Germany (1992) 15 EHRR 584, 592 [22(a)].

This shows that there are two answers to the claimant’s complaint apart from the fact that the claimant has no right to an automatic reference to a Tribunal. First, the deprivation of liberty in this case was neither “indefinite or lengthy” as it arose under section 2 of the 1983 Act ,which meant that it was for the relatively short period of 28 days so as to enable an assessment to be made. Significantly, unless by the end of that period, the patient had become liable to be detained under some other provision of the 1983 Act, section 2(4) of the 1983 Act requires that he must be discharged. Second, in any event, within that period, as I have explained , the patient is entitled to apply for a discharge to the Mental Health Review Tribunal and this would constitute a right “to take proceedings” Thus, the claimant is not entitled to her first declaration.

Mr. Bowen is at this stage putting forward a more specific case than that which I have previously considered in issue 1 because he is here referring to the specific case where the claimant lacks the power to make her own application for a review of the decision to detain her. He therefore says that this in itself is incompatible with article 5(4), which requires the State to initiate an automatic review of the lawfulness of detention at least where, as in the present case, the detainee lacks the mental health capacity to take the initiative for herself to apply for a Tribunal.

In support of this submission, he relies on the decision of the European Court in Megyiri v. Germany (1992) 15 EHRR 584, where it was stated in paragraph 22 of the judgment, with my italicised emphasis added, that:-

“(c)

The judicial proceedings referred to in article 5(4) need not always be attended by the same guarantees as those required under article 6(1) of the civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.

(d)

Article 5(4) does not require that persons committed to care under the head of “unsound mind” should themselves take the initiative in obtaining legal representation before having recourse to a court”.

Mr. Bowen attaches importance to the requirement for “special procedural safeguards” and he says that there are none available to a patient in the scenario that he has envisaged. There is, of course, a duty on the hospital managers to refer section 3 patients to a Tribunal under section 68, but this duty, he says, only arises after a period of six months for the first period of detention and a period of three years for any subsequent periods of detention. Mr. Bowen contends that those periods do not meet the requirements of regular speedy reviews, but that in any event they do not apply to patients like the claimant, who were detained under section 2. For those retained under section 2, the other safeguard that is available, according to Mr. Bowen, is by a request being made to the Home Secretary to exercise his default powers under section 67 of the 1983 Act, which are set out in paragraph 14 above. This, Mr. Bowen says, is not sufficient protection for the patient for article 5(4) purposes because article 5(4) requires that there should be an automatic review at least where the detainee lacks the mental capacity to take the initiative himself or herself.

I agree with Mr. Bowen that section 67 does not in itself provide adequate safeguards for the patient for two main reasons. First, the Secretary of State could only exercise his power after a request had been made to him to exercise such a power so that where a patient lacks capacity and has nobody to make the request for him or her, the power would not be exercised. Second, in any event, the right of a patient under article 5(4) cannot 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 (see, for example, Benjamin & Lawson v. United Kingdom (2003) EHRR 1 [33] and [36] and D v. Home Secretary [2003] 1 WLR 1315 [24]).

I am unable to accept Mr. Bowen’s main submission on this issue for two reasons. First, as I have already explained article 5(4) does not confer a right on the part of a patient to an automatic review. Second, there are adequate procedural safeguards in place for the protection of patients detained under section 2 of the 1983 Act. Mr. Morshead attaches importance to the requirement for “special procedural safeguards” referred to in the passage that I have just quoted from Megyeri. In order to determine what they are, he points out that it is necessary to recall that in the passage in that case immediately preceding the paragraph which I have quoted, the Strasbourg Court had said, with my italicised emphasis added, that:-

“Article 5(4) requires that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place”.[22(b)]

Mr. Morshead says that in the light of this judgment, the answer to the question of whether the “procedural safeguards” in place are adequate depends first on “the kind of deprivation of liberty in question” and second on the “particular nature of the circumstances in which such proceedings takes place”. I agree that it is of critical importance that in this case the claimant was subject to section 2 detention, which 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 patientbe 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.

I therefore agree with Mr. Morshead that this complaint is flawed by the procedural safeguard of automatic release at the end of the period, which is a better safeguard for a patient subject to a section 2 detention than “an automatic review”. Therefore, I am unable to accept Mr. Bowen’s complaint that Article 5(4) requires that there should be an automatic review for a patient, who lacks the capacity to make his own application.

The issue here is whether section 29(4) of the 1983 Act infringes article 5(4) of the ECHR as it authorised the indefinite detention of a patient admitted under section 2 of the 1983 Act where an application has been made to displace the person’s relative under section 29(4).

Mr. Bowen contends that a patient is deprived of any rights to apply for a discharge where she has been detained under section 2 and her nearest relative then seeks to discharge her under section 23, whereupon the RMO issues a barring order under section 25 and the local social services authority then seeks to displace the nearest relative under section 29. As I have already explained, section 29(4) of the 1983 Act automatically extends the permissible period for detaining a patient where an application has been made to displace the nearest relative of a patient under the provisions of section 29(1). Mr. Bowen says that in those circumstances, a patient has no right to apply to a Tribunal herself while her nearest relative has no such right in a case in which the duty of the hospital managers to make a reference under section 68 also does not apply. In those circumstances, he says that the only means by which the patient’s case can come before a Tribunal is by a request from the Home Secretary to exercise his default power under section 67 of the 1983 Act. As I have explained in paragraph 34 above, I agree with Mr. Bowen that this provision has serious limitations.

In response, Mr. Morshead contends that this complaint of the claimant overlooks the great weight that has to be given to the position and power of the County Court to exercise its powers under section 29(1) of the 1983 Act, which he contends means that although section 29(4) does extend the period of detention, it does not thereby convert a detention under section 2 of the 1983 Act and thus one of an inherently short duration into a detention of indefinite or of unreasonable duration. To hold otherwise would, he says, overlook the duties imposed on the County Court under section 6 of the HRA.

Section 29(1) of the 1983 Act is the procedure by which the nearest relative is displaced but it is important to stress that it requires an application to the County Court. The duty of the County Court, in common with any other public body involved in a section 29 application, is to ensure that the application respects the article 5 rights of the patient. Section 3(1) of the HRA states that “so far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with Convention rights”. The rights in article 5 are Convention rights and so the County Court is obliged to deal with section 29 applications speedily. Indeed, section 6 of the HRA specifically states that it is unlawful for a public authority to act in a way, which is incompatible with the Convention. It therefore follows that the County Court is obliged to control the proceedings so as to ensure that a patient is not detained for a period which is indefinite or lengthy.

In Re Peter Alan Whitbread (CO/5008/98), Mr. David Pannick QC, sitting as a Deputy Judge of the High Court, considered the effect of section 29(4), even though at the time of that decision, the HRA had not come into effect. He explained that “the applicant has access to the County Court as a judicial body which will determine the section 29 issues and all parties have agreed that it is incumbent on the County Court to ensure that those proceedings are determined expeditiously” (page 7 of transcript). I respectfully agree and consider that this comment would apply with greater force after the HRA came into force for the reasons that I have explained in the last paragraph. Indeed, Hale LJ has recently said that “applications under section 29 have to be dealt with quickly” (R (S) v. Plymouth County Council [2002] 1 WLR 2582 [39]).

Thus, the duty of a County Court is to prevent unreasonable delay occurring in the interval between the commencement of the section 29 applications and the date when the application is determined by one of two events. The first would be that the patient would be released automatically seven days after an order is made either absolutely or into guardianship before the date of the continued detention has been protracted for a period which would require a further review under section 25(4). Of course, the release into guardianship itself carries a right of appeal to the Mental Health Review Tribunal: section 66(1)(c) of the 1983 Act.

The second situation is that the patient would be admitted for treatment under section 3 of the 1983 Act in which case the patient could herself either appeal to the Tribunal at any time within six months under section 66(1)(b) or the issue would automatically be referred to the Tribunal under section 68(1). I consider that those factors would mean that there is no incompatibility with article 5(4). If delay does occur in the County Court proceedings so that a patient’s article 5(4) rights were infringed, this would be a result of a breach by the County Court in its duties under sections 6 (1) and 3(1) of the 1998 Act and not because of any incompatibility between the 1983 Act and the Convention.

Mr. Bowen complains that the section 29(1) of the 1983 Act does not confer jurisdiction to consider the lawfulness of the patient’s detention, but that statutory provision plays the role of determining whether the patient’s nearest relative should continue to act for him. The answer to that question will determine the length of the patient’s subsequent detention and in particular whether the patient’s period of detention should be extended under section 29(4) of the 1983 Act. The court’s duties under the HRA will prevent any undue delay and as I have already explained, a person admitted under section 2 can only be detained for a limited period with an automatic release after 28 days in the absence of the exercise of any other power for continuing to detain the claimant .

A further complaint of Mr. Bowen is that the claimant is not entitled to be present at the hearing of the section 29(1) application, but the County Court is given an express power to “interview the patient either in the presence of or separately from the parties and either at the court or elsewhere, or may direct the District Judge to interview the patient and report to the judge in writing” (CPR Schedule 2, CPR order 49 para 12 (6)). In using such power, the County Court will in accordance with section 6(1) of the HRA have a duty not to “act in a way which is incompatible with a Convention right”, which would include the claimant’s article 5 rights. Thus if the claimant’s Article 5 rights are being infringed because of his absence from the court hearing the section 29(1) application, this would be a consequence of a breach by the County Court of its duties under both sections 6(1) and 3 (1) of the HRA and not because of any incompatibility between the 1983 Act and the Convention.

This issue is more specific than the previous one as it envisages that a section 29 application has been made for the purposes of admitting the patient into guardianship. The contention of the claimant is that section 29(4) of the 1983 Act infringes article 5(1) of the ECHR because it authorises the indefinite detention of a patient admitted under section 2 of the 1983 Act where an application has been made to displace the patient’s relative under section 29 of the 1983 Act for the purposes of a guardianship application. Mr. Bowen accepts that the automatic extension of the period of detention provided for in section 29(4) of the 1983 Act in circumstances where an application made to displace the nearest relative is likely to be justified in cases where the local social security authority is seeking to admit a patient to hospital for treatment under section 3 of the 1983 Act. He agrees that in those circumstances, it would defeat the purpose of the statutory regime if the nearest relative was unreasonably refusing to consent to a patient’s admission for treatment and, while the application to displace the relative was pending, the section 2 detention automatically came to an end after the expiry of the 28 day period with the result that the patient would be released.

The thrust of Mr. Bowen’s submission is that these justifying factors do not apply where what is sought is not that the patient should be admitted to hospital for the purpose of treatment under section 3 of the 1983 Act, but that the patient should be placed into guardianship. He points out that a patient placed under guardianship could not lawfully be detained in hospital. Section 8(1) (a) of the 1983 Act provides that the power of the guardianship, which is almost invariably vested in a local social services authority, includes “the power to require the patient to reside at a place specified by the authority or person named as guardian”. He contends that such a power could not include the power to direct that a patient in guardianship be admitted to hospital. Section 19(1) of the 1983 Act and Regulation 8 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 (“the 1983 Regulations”) provides for the circumstances in which a patient, subject to guardianship, may be transferred to hospital, but what is important here, says Mr. Bowen, is that a direction could not be made under section 8(1)(a) of the 1983 Act, which had the effect of by-passing that section and the 1983 Regulations.

His case is that such a direction would also violate article 5(1) of the ECHR as it could not necessarily be said that a patient subject to guardianship is suffering from mental disorder of a kind or degree that warrants compulsory confinement under article 5. What would be needed before the necessary conditions for warranting compulsory confinement were met, would either be an appropriate application made for the patient’s admission for treatment under section 3 of the 1983 Act, or the patient’s transfer to hospital under section 19 of the 1983 Act and Regulation 8 of the 1983 Regulations.

Mr. Bowen’s case is therefore that where the patient’s nearest relative has objected to the making of a guardianship order, whether reasonably or unreasonably, any justification for continuing to detain the patient under the authority of section 29(4) disappears. In other words, he contends that either the nearest relative is unreasonably refusing and the patient is suitable for guardianship or the refusal of the nearest relative is reasonable in which case the patient should be released. This, he says, leads to the conclusion that in either case, there is no authority to detain the patient under article 5(1) and therefore the patient is entitled to leave. Thus, Mr. Bowen contends that section 29(4) of the 1983 Act is incompatible with section 5(1) of the ECHR when used in connection with a guardianship case. Put in another way, he says that the indefinite detention of an individual for the purpose of making a guardianship application is not consonant with the purpose of article 5(1)(e), namely “the lawful detention .. , of persons of unsound mind ..;”; Mr. Bowen’s case is that in consequence, the patient is entitled to be released.

In response, Mr. Morshead points out rightly in my view that the thrust of the claimant’s submission is that since the purpose of a section 29 application is for the patient to be placed into guardianship rather than to secure her admission for treatment, this implicitly means that the second of the widely-accepted criteria for detention of a patient set out in Winterwerp v. The Netherlands (1979) 2 EHRR 387 has not been met. The second criterion is that the patient’s “mental disorder must be of a kind or degree warranting compulsory confinement” [39].

On the facts of this case, the claimant’s mental condition did satisfy the second Winterwerp criteria because it had been established by objective medical evidence that releasing the claimant from hospital would pose a threat to her own health and safety and/or that of the others. This is demonstrated by the fact that the RMO made a report under section 25 of the 1983 Act barring the nearest relative from ordering discharge. As I have explained, section 25 of the 1983 Act can only be invoked if, “the responsible medical officer furnishes to the managers a report certifying that in the opinion of that officer, the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself”.

That requirement is in all material aspects the same as the second requirement in Winterwerp’s case, which “is only likely to be satisfied if release of that patient into the community will pose a threat to his own health and safety or to other persons” (R (H) v. Secretary of State for the Home Department [2003] QB 320 at 351 [86] per Lord Phillips of Worth Matravers MR giving the judgment of the Court of Appeal).

I consider that in the present case, there was no breach because the second Winterwerp criterion was satisfied on account of the barring order which arose after the RMO issued his certificate pursuant to section 25 of the 1983 Act. The claimant then says that this point does not show that there is no incompatibility because there will be some cases in which a section 29 application will not have been preceded by a section 25 report. I agree with Mr. Morshead that it is only a section 25 report by the RMO “certifying that in the opinion of that officer, the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself”, which precludes the nearest relative from obtaining the discharge of the patient under section 23 of the 1983 Act. Without the existence of that certificate, the nearest relative could make an application under section 23(2), which could not thereafter be trumped by the RMO.

The fallacy in Mr. Bowen’s submission is that there is not going to be a case of a patient who is not certified by the RMO under section 25 as being “likely to act in a manner dangerous to other persons or to himself” but who would nevertheless remain detained pending a contested section 29 application. The reason for that is that the nearest relative would in those circumstances be able to obtain a section 23 discharge. In other words, it is only where a section 25 report has been made, which ensures that the second Winterwerp criteria has been satisfied that a section 29 application will in practice postpone the release of the patient. Thus, where there is no section 25 certificate, the patient will no longer be “liable to be detained by virtue an application for admission for assessment” because the patient will have been discharged on the order of her nearest relative pursuant to section 23(2). In those circumstances, section 29(4) will have no effect and so it will not preclude release.

Mr. Morshead has another argument to counter any suggestion that the effect of section 29(4) of the 1983 Act would be to defer the discharge of a patient, who is not suffering from mental disorder of a nature or degree warranting her continuing detention, presumably, I suppose because the nearest relative has not made an application for the patient’s discharge. In that situation, Mr. Morshead says that the Convention does not require the United Kingdom to provide further opportunities of review either before a Mental Health Review Tribunal as a result of section 66 of the 1983 Act or before a County Court under section 29, which entitles an application to be made in the County Court, as I have explained already.

Mr. Morshead says in that situation, a deferral of a discharge would be justified as long as there were adequate safeguards to ensure that the deferral is not unreasonably delayed. In support of this, he points out that the Strasbourg Court held in Johnson v. United Kingdom (1997) 27 EHRR 296 that the State’s responsible authorities are entitled to exercise their “judgment to determine in particular cases and on the basis of all relevant circumstances when the interests of the patient and the community into which he is to be released would in fact be served by [the immediate and unconditional release]” [61]. More recently, Lord Phillips of Worth Matravers MR explained in R (H) v. Home Secretary [2003] QB 320 at 351 that the effect of Johnson’s case was that “a limited deferral [of any discharge arrangements] in order to enable arrangements to be made for rehabilitation and supervision may be justifiable, but this must be finite” [85].

I agree with Mr. Morshead that any application under section 29 of the 1984 Act which is made in order to pave the way for a guardianship application must by its nature involve an exercise of judgment by the social services authority that it would not be in the best interests of the patient and the community that the patient be immediately and unconditionally released. Indeed it follows that a patient’s continuing detention pending a section 29 application with a view to guardianship is consistent with the principle enunciated in Johnson so long as the patient’s discharge does not become unduly delayed. As I have explained, the County Court has a specific duty to dispose of the section 29 applications expeditiously.

Furthermore, once a section 29 application has been finally disposed of, the section 2 detention can only thereafter continue for a maximum of a further seven days: section 29(4) (b). In addition, if the patient is admitted for treatment, an appeal to the Mental Health Review Tribunal becomes available under section 66(1) (b) of the 1983 Act with automatic reviews provided for under section 68(1) of the 1983 Act. Furthermore, if the patient is placed into guardianship, there is a further right of appeal under section 66(1)(c) which provides that “where (c) a patient is received into guardianship in pursuance of a guardianship application….an application may be made to a Mental Health Review Tribunal within the relevant period (i) by the patient”. The relevant period for such an application is “six months beginning with the day on which the application is accepted” (section 66(2) (c) of the 1983 Act).

Thus, where a 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 of the HRA 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.

As I have already explained, the Secretary of State acceded to a request from the claimant’s solicitors to refer the claimant’s case to the Tribunal pursuant to section 67 of the 1983 Act, the material terms of which have already been set out in paragraph 13 above. On 26 March 2003, the Tribunal convened to hear the reference and later on that day, it refused to discharge the claimant. Mr. Bowen contends that its decision contained an error of law because the Tribunal should have addressed, but did not address, the dangerousness criteria set out in section 25 of the 1983 Act, namely that the claimant “would be likely to act in a manner dangerous to other persons or to himself”. Mr. Martin Chamberlain for the Tribunal contends that it did not make an error of law and that it was quite entitled to refuse to discharge the claimant in the light of its other findings.

In order to understand the issue, it is necessary to summarise the reasoning process of the Tribunal, which was that:-

Mr. Bowen accepts that the Tribunal had no express statutory obligation to discharge a patient where the “barring order criteria” of “dangerousness” in section 25 was not fulfilled but he contends that the Tribunal nevertheless retains an overriding discretion to discharge a patient who otherwise fulfils the statutory criteria for detention. Thus, he says that, where the “barring order” criteria of dangerousness are not met, that fact must be highly relevant to the exercise of the Tribunal’s discretion.

Mr. Chamberlain contends that the Tribunal was right to reach its conclusion that, despite finding no evidence that the dangerousness criteria were satisfied “at this time”, the claimant should not be discharged. He contends that the 1983 Act does not require the Tribunal to discharge a patient in these circumstances simply because the dangerousness condition is not met.

The starting point for the submissions of both counsel was that the criteria governing the discharge of mental patients include all the same criteria relevant to a patient’s admission and that these include the “treatability” test, notwithstanding the absence of any express words to that effect.

This approach is borne out by the reasoning of the House of Lords in Reid v. Secretary of State for Scotland [1999] 2 AC 512 in which Scottish provisions equivalent to those in section 72(1) of the 1983 Act were considered. Thus, for example, Lord Clyde said of the sheriffs whose jurisdiction to discharge detained patients in Scotland is the same as those of a Mental Health Review Tribunal in England that:-

“I find it hard to believe that the intention would have been to omit from the sheriff’s consideration criteria which had been prescribed for the admission of the patient. Such a course would not have measured up to the scope of the review which the European Court considers appropriate. Quite apart from that, it seems to me reasonable to expect that a court dealing with an application for discharge would consider the grounds which warrant detention and, where they were cumulative, be required to grant a discharge if any of them was no longer sound” (page 538).

More recently, the Court of Appeal accepted in relation to the provisions of discharge of patients in section 73(1) of the 1983 Act, a submission on the discharge of a restricted patient that “the criteria that the Tribunal has to consider on an application under section 73 are the same criteria that have to be satisfied before a patient can be admitted under section 3” (R (H) v. North and East Region Mental Health Review Tribunal [2002] 2 QB 1, 20 per Lord Phillips of Worth Matravers MR). It is agreed that similar reasoning leads to the conclusion that, on an application for a discharge of a patient detained under section 2 of the 1983 Act, the criteria to be followed should be those applied when determining whether the patient can be admitted.

Up to this point, the parties are in agreement but the dispute between counsel centres on first, the issue of whether the requirement of dangerousness can be inferred from the wording in the 1983 Act as being the legislative intention and on second, the relevance and applicability to this case of the decision and reasoning in R v. Riverside Mental Health Trust ex parte Huzzey (1998) 43 BMLR 167. I will now summarise their submissions on each of these issues in turn.

Mr. Bowen contends that where, as in the present case, the claimant was only detained because of a decision of the RMO to issue the barring order under section 25, it was perverse and incompatible with the claimant’s Convention rights for the Tribunal to refuse to consider the criteria of dangerousness. He says that while it is plain that the “dangerousness criterion” is not expressly provided for by section 72(1)(A), the necessary words should be read into it because of the interpretative obligation in section 3 of the HRA which is that, “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”. So, he says, the failure of the Tribunal to address itself to those criteria rendered its decision under challenge unlawful.

Mr. Chamberlain, on the other hand, attaches significance to the fact that section 2 of the 1983 Act under which the claimant was detained and which is set out in paragraph 5 above, enables a patient to be detained even if at the time when she was detained, she was not then a danger to herself or to others. He explains that a Tribunal considering a reference or application in respect of a section 2 patient is required by section 72(1)(a) of the 1983 Act to direct discharge if it is not satisfied that, at the time the matter came before it, the section 2 detention conditions are both satisfied.

He contends that it follows that in the same way that a patient may be initially detained even though she is not dangerous at the time of that detention, the Tribunal is under no statutory duty to discharge a patient merely because she is not dangerous when considering discharge under section 72 of the 1983 Act. Mr. Chamberlain fortifies that submission by pointing out that whereas dangerousness is a matter which the Tribunal is specifically and expressly required by statute to consider in relation to section 3 patients in one particular situation, namely where a nearest relative applies to a Tribunal after a barring order under section 23 of the 1983 Act has been made, there is no such reference to any form of dangerousness requirement in either section 2 or section 72(1) (a) of the 1983 Act. Thus, in consequence, he submits that the legislature could not have intended dangerousness to be a requirement for the continuing detention of a patient.

Mr. Bowen places great reliance on the reasoning and the decision in R v. Riverside Mental Health Trust ex parte Huzzey (1998) 43 BMLR 167 in which Latham J (as he then was) held that hospital managers considering whether to discharge a patient under section 23 of the 1983 Act following a decision by the RMO to issue a “barring order” under section 25 were obliged to discharge a patient if the “dangerousness criteria was not met”. Mr. Bowen contends that this decision applies by analogy in the present case so that the absence of any consideration by the Tribunal of the “dangerousness criteria” means that the decision of the Tribunal under challenge is flawed and that it must therefore be quashed.

Mr. Chamberlain disagrees and he contends that, on analysis, the Huzzey case depends on its particular facts, which show that it did not apply by analogy or at all to the application that the Tribunal was considering before it made the decision under challenge. It therefore now becomes necessary to examine the Huzzey decision in some detail so as to determine precisely what it decided.

Huzzey was a patient, who had been admitted for assessment before being detained under section 3 of the 1983 Act for treatment. His mother asked for his discharge under section 23 of the 1983 Act but the managers of the hospital considered that the detention of the patient should continue “for the protection of others and for his own well-being”. Subsequently, a Mental Health Review Tribunal directed the claimant’s discharge. The applicant obtained an order from Latham J quashing the decision of the managers authorising his continued detention..

The defendant Mental Health Trust had submitted first that on a review by the managers, the only relevant matters for them to consider were first the criteria set out in section 3 of the 1983 Act for admission for treatment and second that those criteria remained the only test for justifying his detention even where a nearest relative had sought to make an order for discharge which resulted in barring order. The case for the defendant Trust was that section 25 of the 1983 Act did not add any further requirement, which had to be satisfied in order to justify Huzzey’s continued detention, but that it merely provided the mechanism whereby a nearest relative could be prevented from obtaining an order for discharge.

Latham J, as he then was, rejected that argument stating, with my italicised emphasis added, that:-

“In my view, this argument fails to address the fact that section 23 provides, inter alia, a general discretion in the managers to discharge a patient. No criteria are set out as to what should or should not be taken into account by managers when considering a decision as to whether or not to discharge. The question of what are the relevant considerations has to be answered by looking at the general scheme of the Act. Clearly, the criteria set out in section 3 of the Act are of fundamental importance. If the criteria for admission no longer exist, I cannot see how any decision by managers not to discharge could be other than perverse hence my conclusion on Mr. Gledhill’s first point. But that does not mean that the managers are restricted to considering those criteria. Section 23 implicitly recognises that managers have a discretion to discharge, even if those criteria have been met. Where, as in the present case, a nearest relative has sought to obtain a discharge order but has been confronted by a barring report, those facts must equally be relevant and material considerations. In my view, the managers are not only entitled to, but must, consider whether or not they are persuaded by the barring report that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself”.(page173)

Later in his judgment, Latham J said of the issue of the danger presented by the patient:-

“That cannot be anything other than the relevant and material consideration, and would be likely, in almost all circumstances, to mean that discharge should be ordered. In the present case, the managers do not appear to have addressed their minds to this question at all. If they had, it may be they would have concluded that the responsible medical officer’s opinion was correct. But their failure to apply their minds to this question means that in my view, the decision was irrational and it must be quashed on that ground” (page 173).

Mr. Bowen says that this reasoning applies to the decision of the Tribunal under challenge with the result that the Tribunal was irrational by not considering the dangerousness of the claimant as a requirement that had to be satisfied before he could continue to be detained. Mr. Chamberlain contends that Huzzey’s case does not apply to an application for discharge, pointing out the powers considered in Huzzey’s case were those of hospital managers in respect of which, as I have explained, Latham J found that there was no statutory criteria on what should or what should not be taken into account by the managers when they were considering a discharge. This position, according to Mr. Chamberlain, contrasts sharply with that of section 2 patients for whom Parliament has not merely set out the criteria for release but had also specifically omitted to refer to dangerousness. He says that it is noteworthy that dangerousness was a condition which the Tribunal had been obliged to consider in relation to section 3 patients in the particular situation and which arose where the nearest relative applies to a Tribunal after a barring order under section 25 of the 1983 Act has been made.

I consider that the Tribunal was correct to find that the dangerousness of the claimant was not a matter which the Tribunal had to consider for nine separate overlapping reasons. First, it is significant that, whereas the dangerousness criterion is set out in relation to one category under section 3, there is no similar criteria in respect of those detained under section 2 of the 1983 Act, which requires detention if the patient suffers from an appropriate mental disorder and he ought to be “so detained in the interests of his own health and safety with a view to the protection of other persons”.

Second, Parliament did not accidentally omit the criterion of dangerousness in section 72(1) of the 1983 Act. Significantly, it made express reference to it in the very next paragraph of the same subsection (section 72(1) (b) (iii)) which provides that “the Tribunal shall direct the discharge of a patient …if they are not satisfied that... (iii) [in respect of a specific category of patient] that the patient, if released, would be likely to act in a manner dangerous to other people or to himself”. If Parliament had intended the Tribunal to be under a duty to take the dangerousness criteria into account in a case outside the narrow category specified in s. 72(1) (b) (iii), it would have said so expressly.

It is a settled rule of statutory interpretation that in such a case, the omission of the dangerousness criterion in respect of a patient whose detention is being considered under section 2 of the 1983 Act should not be regarded as an accident but that it should be construed a deliberate decision by Parliament, which should be respected by the courts. In other words, in the light of the provision in section 72(1) (b) (iii) of the 1983 Act, if Parliament had intended that dangerousness of a patient should be considered by a Tribunal before detaining a patient held under section 2, it would have said so specifically but its failure to do so shows what Parliament intended..

Third, the reasoning of Latham J in Huzzey’s case deals with the position under section 25 of the 1983 Act in which no criteria has been set out by legislature and in that case, the statutory landscape was different from that facing the Tribunal in the present case where clear statutory principles for admission had been set out in section 2 of the 1983 Act and which were applicable to an application for discharge for the reasons set out in Reid’s case. Thus, in the case where no statutory criteria are set out for determining a patient’s release, Parliament was leaving it to the courts to work out the criteria; in contrast in the case of section 2, Parliament had itself set out the relevant criterion, which had to be followed. It is also noteworthy that Latham J was not suggesting in the passages that I have quoted that section 3 entailed any consideration of the dangerousness of the patient.

Fourth, the courts have recognised that where legislation sets out criteria to be followed, the courts will not lightly interfere with a judicial decision not to consider other criteria. Thus in CREEDNZ Inc v Governor General[1981] 1 NZLR 172, Cooke J sitting in the New Zealand Court of Appeal said in a passage of his judgment, which was later approved by the House of Lords in Re Findlay [1985] AC 318, 333H-334C, by Lord Scarman that:-

“What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.”

More recently, the effect of those two cases was considered by the Court of Appeal in R (Jones) v North Warwickshire Borough Council [2001] EWCA 315, The Times, 30 March 2001 in which Laws LJ, with whom Aldous LJ and Blackburn J agreed, explained that:-

“The general law as regards the duty of a public decision-maker to take relevant considerations into account is well-known.

(1)

If the operative statute provides a lexicon of relevant considerations to which attention must be paid, then obviously the decision-maker must follow the lexicon.

(2)

If, however, the statute provides no such lexicon or at least no exhaustive lexicon then the decision-maker must decide for himself what he will take into account. In doing so he must obviously be guided by the policy and objects of the governing statute, but his decision as to what he will consider and what he will not consider is itself only to be reviewed on conventional Wednesbury principle: see the judgment of the New Zealand Court of Appeal in CREEDNZ Inc v Governor General [1981] 1 NZLR 172, approved by Lord Scarman for the purposes of the law of England in In re Findlay [1985] AC 319 HL” [20].

Mr. Chamberlain submits that, unlike the position in respect of a section 23 application, which was the section with which Latham J’s decision in Huzzey was concerned, Parliament had specified in section 72(1)(a) of the 1983 Act two considerations that had to be taken into account by the Tribunal. According to Mr. Chamberlain, those considerations in that provision are – to use the words of Laws LJ in the Jones case – the “lexicon” that Parliament required the decision-maker to follow. I agree with Mr. Chamberlain so that, beyond the considerations which Parliament has specifically required the Tribunal to take into account, it was for the Tribunal to say what would be and what would not be relevant to its decision, subject only to Wednesbury review. Therefore, although the Tribunal may consider the question of dangerousness, it was not obliged to do so. Whether it does so will depend on its assessment of the facts of an individual case.

Although the facts of this case are of little relevance because the Claimant is not asking for the matter to be remitted, they show why it was perfectly reasonable for the Tribunal in its decision now under challenge to conclude that consideration of dangerousness will not help. In this case, having concluded that the detention criteria were met, the Tribunal was faced with a choice of two options, namely the continued detention of the claimant or her discharge into the care of her mother, in which case the claimant “would be at an unacceptable level of risk to her health and well-being”. This would or might explain why the Tribunal concluded that, irrespective of whether the dangerousness test was met, it would not be in the interests of the claimant to be discharged so as to return to her mother. Even if the claimant was not a danger to others or to herself, she would still be at an unacceptably high risk if she returned to the family home. In the light of this conclusion, I consider that it would have been a waste of valuable time for the Tribunal to have spent time hearing evidence directed to whether the dangerousness criterion was satisfied.

Fifth, I am unable to accept Mr. Bowen’s contention that section 3 of the HRA requires that section 2 of the 1983 Act should also include a requirement of dangerousness. No cogent reason was put forward why section 2 has to be read in that way, especially as it is not a requirement that has to be satisfied under ECHR law before a person of unsound mind can be detained. The Strasbourg Court explained in X v. United Kingdom 4 EHRR 188 [40] that:-

“In Winterwerp v. The Netherlands (1979), 2 EHRR 387, 402, 403, paragraph 39, the Court stated three minimum conditions which have to be satisfied in order for there to be ‘the lawful detention of a person of unsound mind’ within the meaning of article 5(1)(e): except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder”.

It has not been argued that these requirements necessitate a finding of dangerousness before the detention of a patient under section 2 can continue. This is not surprising because before a person can be detained under that section, two doctors of whom one must be an approved specialist in mental disorder have to say that the patient “ought to be detained in the interests of his own health or safety or with a view to the protection of other persons” (section 2(1)(b)) of the 1983 Act).

Sixth, it would mean that in every section 2 case, the court would have to consider dangerousness on an application for discharge, in addition to the other statutory conditions because the Tribunal should have adopted it before making the decision under challenge. Seventh, dangerousness would also have to be considered before any section 2 order could initially be made. In other words, by implication the requirement on dangerousness would then become a condition required for an initial detention under section 2 of the 1983 Act. No cogent reason has been put forward to support that argument.

Eighth, if the Tribunal had been under a duty to discharge the claimant if she did not meet the dangerousness condition, it would have meant that she would have been discharged into the care of a person, whose suitability to discharge the statutory functions of the nearest relative was being challenged in County Court proceedings, who was a person who had been found by the court to be unfit to discharge the statutory function of the nearest relative. Finally, as in this case, the Tribunal would have been under a duty in almost all cases to discharge a patient into the care of a person, even where it had reason to believe that the patient might thereby be put at a greater risk than if he or she had remained in hospital. I do not believe that it could have been the Parliamentary intention for these last two consequences to occur.

Thus, I dismiss this challenge to the decision of the Mental Health Review Tribunal made on 26 March 2003 by which it refused to discharge the claimant.

I am grateful to counsel for their helpful written and oral submissions on the wide-ranging issues raised on this application. For the reasons that I have explained, I reject the claims for declaratory relief and the challenge to the Tribunal’s decision.