Modaresi, Regina (on The Application of) v Secretary of State for Health and Others: CA 23 Nov 2011

The appellant had been detained under the 1983 Act. Her appeal had been declined as out of time, and she now appealed against rejection of her request for judicial review.
Held: The appeal failed, even though the application to the tribunal should have been treated by it as in time, and the claim against the Trust accordingly failed, as it was not its oversight which resulted in the deadline being missed. The claim against the Secretary of State was also dismissed. He had been under no separate duty to check the time limit for himself, no doubt having been raised on that point in the solicitors’ letter. In relation to article 5(4) the only suggested disadvantage of her right to apply under section 3, as compared to section 2, was the potential loss of the right to make a further application within six months, which had been properly addressed in the Secretary of State’s offer to reconsider the use of section 67 in the future.
Black LJ said: ‘What article 5(4) requires is that a patient should have the entitlement to take proceedings to have the lawfulness of his or her detention decided speedily by a court; the appellant had that entitlement under section 66(1) in association with her detention under section 3. Article 5(4) does not prescribe further than that. If there came a time when having unsuccessfully used up her section 3 application at an early stage, the appellant wished to make a further application to the tribunal, she was entitled to ask the Secretary of State again to refer her case to the tribunal under section 67 and he had indicated that he would consider so doing. Of course, that was not a guarantee that he would refer it and to that extent the appellant’s position was less favourable than it would have been had she not had to use her section 3 application in the first place. But the Secretary of State is bound to exercise his discretion under section 67 in accordance with normal public law principles and judicial review would be available to the appellant should he fail to do so, thus ensuring that there would be no breach of article 5(4). Accordingly, I do not consider that the disadvantage to the appellant of having to use up her section 3 application at an early stage was such as to make it unlawful for the Secretary of State to decline to exercise his section 67 power in the expectation that she would do so.’
Mummery, Richards, Black LJJ
[2011] EWCA Civ 1359, [2012] ACD 37, [2012] PTSR 999
Mental Health Act 1983 3 2 66, European Convention Human Rights 5(4)
England and Wales
Appeal FromModaresi, Regina (on The Application of) v Secretary of State for Health and Others Admn 3-Mar-2011
The claimant sought judicial review of her detention under section 2 of the 1983 Act.
Held: The request was rejected. The tribunal had been correct to treat the original application as out of time. The Secretary of State’s decision was neither . .

Cited by:
Appeal fromModaresi, 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 . .

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Updated: 19 March 2021; Ref: scu.449014