Modaresi, 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 Health Review Tribunal ‘MHRT’ under section 67(1) of the Mental Health Act 1983 ‘MHA’ in circumstances where the MHRT has unlawfully declined to hear that patient’s application to it under section 66(1)-(2) and where the patient requests that there be a section 67(1) referral?’
Held: The appeal failed. In the particular circumstances, the Secretary of State’s response to the solicitors’ letter of 7 January 2011 was both lawful and reasonable, and ‘A competent tribunal had made a decision on a procedural matter, and the claimant had both a right of appeal and access to solicitor’s advice on its merits. The Secretary of State was under no duty to do the solicitor’s work for him, even if it would have been appropriate for him to second-guess the decision of the tribunal on this point. It had been open to the appellant to ask the tribunal to review its decision, if thought wrong, or to appeal. Failing such a challenge, it is hard to see why the Secretary of State was not entitled to proceed on the basis of that decision of a competent tribunal. In any event the argument does not lead anywhere. If the Secretary of State’s decision were to be set aside solely on the basis that the original application was in fact made in time, it would not help the appellant. Rather it would further undermine her case against the Secretary of State under article 5(4) or analogous common law principles, since it would show that there had been a right of access to the tribunal all along, and therefore no breach by the Secretary of State of any implied duty to provide one under section 67. ‘

Lord Neuberger, President, Lady Hale, Lord Wilson, Lord Sumption, Lord Carnwath
[2013] PTSR 1031, [2013] WLR(D) 309, UKSC 2012/0069, [2013] UKSC 53
Bailii Summary, WLRD, Bailii, SC Summary, SC
Human Rights Act 1998, Mental Health Act 1983 67(1)
England and Wales
At first instanceModaresi, 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 . .
CitedMucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
Appeal fromModaresi, 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 . .
CitedPadfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
CitedPritam Kaur v S Russell and Sons Ltd CA 2-Jun-1972
The plaintiff sought damages following the death of her husband when working for the defendant. The limitation period expired on Saturday 5 September 1970. The writ was issued on the Monday following.
Held: The appeal succeeded. The writ was . .
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. . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedMH 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 . .
CitedRegina (RB) v First Tier Tribunal (Review) UTAA 28-May-2010
The tribunal may review its own decision, where for example a clear error has been made (section 9). . .

Lists of cited by and citing cases may be incomplete.

Health, Human Rights

Updated: 31 December 2021; Ref: scu.513676