MH v Secretary of State for the Department of Health and others: HL 20 Oct 2005

The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county court under section 29 for the functions of the nearest relative to be exercised by an approved social worker rather than the mother. This, by section 29(4) extended the period of detention until that application was disposed of. At the mother’s request, the Secretary of State then exercised his power under section 67 to refer the case to the tribunal, which heard the case but declined to discharge her. She now said that section 29 was
Held: The House ‘decline[d] to hold that either section 2 or section 29(4) is incompatible with article 5(4) of the Convention in the respects identified by the Court of Appeal’, because ‘article 5(4) does not require that every case be considered by a court. It requires that the person detained should have the right to ‘take proceedings’. The wording is different from article 5(3), ‘ and ‘while judicial review and/or habeas corpus may be one way of securing compliance with the patient’s article 5(4) rights, this would be much more satisfactorily achieved either by a speedy determination of the county court proceedings or by a Secretary of State’s reference under section 67. Either way, however, the means exist of operating section 29(4) in a way which is compatible with the patient’s rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.’
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2005] UKHL 60, Times 25-Oct-2005, [2006] 1 AC 441, [2005] 4 All ER 1311, [2005] 3 WLR 867
Bailii, House of Lords
Mental Health Act 1983 2 29(4)
England and Wales
CitedLewis v Gibson and Another CA 19-May-2005
Appeal against order displacing applicant as best friend of mental health patient. . .
CitedHL v United Kingdom ECHR 2004
Patient’s lack of Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
CitedRegina v Central London County Court and Managers of Gordon Hospital ex parte Ax London CA 15-Mar-1999
An application to the court to exclude a person as a patient’s relative under the Act, could be made ex parte in appropriate situations, though it was preferable to take that application to an inter partes determination before other procedures . .
CitedIn Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
CitedWinterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
CitedStorck v Germany ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected ( res iudicata ); Violation of Art. 5-1 (placement in private clinic from 1977 to 1979); No separate issue under Arts. 5-4 and 5-5; No . .
CitedRakevich v Russia ECHR 28-Oct-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Violation of Art. 5-4 ; Non-pecuniary damage – financial award ; Costs and expenses – claim rejected
Even the judicial review of every . .
CitedRegina (N) v Dr M and Others CA 6-Dec-2002
The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
Held: Treatment of this nature infringed the patients rights, and was not to be ordered without clear reason. The . .
CitedX v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the . .
CitedRegina (Wilkinson) v Broadmoor Special Hospital and Others CA 22-Oct-2001
A detained mental patient sought to challenge a decision by his RMO that he should receive anti-psychotic medication, despite his refusal to consent, and to challenge a certificate issued by the SOAD.
Held: Where a mental patient sought to . .

Cited by:
CitedModaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.231239