Although this case refers to section 2 of the Mental Health Act, the judgement can equally apply to section 3 having the same principles :
Concerned MH who was a 32-year-old with Downs Syndrome and lacked 'capacity' On 31st January 2003 she was detained under s.2. The period of admission should have expired on 28 February 2003. The RMO issued a barring order preventing her mother from discharging her. A s.29 application was made to the County Court to displace the mother as nearest relative, and therefore MH remained subject to detention until a decision of the application. At the time of this judgment (20 months after the s.29 application) the s.29(4) proceedings had still not been finalised, because the nearest relative appealed the County Courts decision. In the meantime MH had been transferred to suitable accommodation, following which a Guardianship Order was made on 7th August 2003.
MH complained that her disability meant she was unable either to challenge her detention at an MHRT, or to authorise others to represent her, where a competent patient has access to the MHRT but a patient without capacity does not. Also, she complained that the application under s.29(4) extended a s.2 detention for many months after the expiry of its statutory 28-day term, and no patient (whether capacitated or not) has any recourse to the MHRT during this time.
The CA held that the State is obliged by the general principles of protection that inform Article 5 to place the incompetent patient in the same position as the competent patient... under s.2. The MHA was therefore incompatible with the European Convention. In relation to the second complaint, the CA stated that if a patient who is the subject of a s.29(4) application is detained beyond the 28-day limit without adequate judicial supervision the justification for his original detention has expired and he is detained just because of the existence of proceedings in respect of which he is a spectator in those circumstances he should have the right to return to the MHRT to obtain a judicial decision on his continued detention.
The CA included a solution to dealing with the problem posed by s.29(4). Under s.68 hospital managers have a duty to refer particular cases to a MHRT. It should therefore be possible to devise a system where hospital managers have a duty to refer patients who lacked capacity admitted under s.2 to a MHRT within the time limits laid down by s.66(2)(a) (Applications to Tribunals). The CA suggested that hospital managers could identify solicitors who regularly represent patients at MHRTs to represent these patients.
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