UK: Detention Under the Mental Health Act When Suitable Discharge Facilities are Unavailable

Last Updated: 12 July 2004
Article by Andrew Parsons

Originally published April 2004

Difficulties often arise, particularly in the case of those with learning disabilities, when it is felt that detention under the Mental Health Act is not entirely necessary. However detention in hospital is felt to be more appropriate than the facilities available in the community.

The Court has recently had to consider this issue and the criteria to be applied1.

The patient was a 32 year old woman with Downs Syndrome. She suffered from severe mental disability. She lived with her mother, her sole carer.

Because of concerns about her care, a social worker obtained a warrant under Section 135 of the Mental Health Act, entered the home occupied by the patient and her mother, and removed the patient to a place of safety (i.e. the local hospital). The patient was detained there under Section 2.

Her mother as nearest relative sought her discharge. This was barred by the RMO under Section 25.

The social worker sought the mother’s consent to a Guardianship Order being made. The mother refused. The Local Authority therefore commenced proceedings under Section 29 to displace the mother as nearest relative – this of course had the effect of extending the period of the patient’s detention pursuant to Section 29(4) until those proceedings were determined.

At that point the Mental Health Review Tribunal could have discharged the patient but no application was made to the Tribunal within the fourteen days required by statute. Nevertheless, around two months later, solicitors acting on behalf of the patient requested the Secretary of State to refer her case to the MHRT. This was done.

The MHRT declined to discharge the patient. The patient sought judicial review on the basis that this was a breach of her rights under the European Convention on Human Rights. She contended:

  1. The fact that the onus was on the patient to apply to the MHRT to review her detention was a breach of Article 5(4)2
  2. Article 5(4) requires an automatic review of the lawfulness of detention when a patient lacks capacity
  3. Article 5(4) requires a review of detention when a Section 29 application is made
  4. The MHRT unlawfully failed to consider the issue of ‘dangerousness’ when deciding not to discharge her

The judicial review was unsuccessful. The court held that the contentions advanced with regard to Article 5(4) were not sustainable.

The Court also held that the MHRT had acted reasonably in concluding that the criteria for detention had been met. There was no ‘dangerousness’ criteria to apply in such Section 2 cases. The Tribunal had two choices. Either the patient could remain detained in hospital or she could be discharged into the care of her mother. The Tribunal felt that the patient "would be at an unacceptable level of risk to her health and wellbeing" if she were discharged to her mother’s care. Even though it could not be said that the patient was "dangerous", she would still have been discharged to a person who was unsuitable to act as her nearest relative. The patient would therefore have been at a greater risk than if she had remained in hospital. The Court did not consider that Parliament could have intended such an absurd outcome and the application for judicial review was therefore refused.

Comment

Given that it is often difficult to arrange appropriate residential facilities, this case is therefore useful guidance on the role of detention in hospital, in appropriate cases, when suitable discharge facilities are not available. It also provides useful clarity on the point that there is no ‘dangerousness’ criteria to consider in such cases

Footnotes

1 R(MH) –v- Health Secretary and MHRT [2004]EWHC56
2 The right to a review of a detention infringing the right to liberty

Detention in Hospital Booklet Published

The Department of Health have just published a booklet providing information on detentions under the Mental Health Act. The booklet provides a summary of the detention provisions and statistics on the use of these. It is available on the Department of Health website at
http://www.publications.doh.gov.uk/public/inpatients2003.htm

© RadcliffesLeBrasseur

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