A solicitor’s application for discharge on behalf of a person who lacked capacity to do so themselves was struck out. The Upper Tribunal considers that the appeal rights on behalf of such a person are compliant with the Convention.
A solicitor submitted an application on behalf of a person detained under section 3 of the Mental Health Act 1983. The application is not signed by the person detained, but by the solicitor. The procedure rules require the application to be signed by the patient or someone authorised to do so – the solicitor here stating on the form that the patient had personally authorised them.
It was accepted that the patient lacked the capacity to make such an application and ultimately the application was struck out, in a round-about way, because of the procedural non-compliance. The solicitor challenged that decision and argued that given the patient’s inability to bring an application, it was necessary to allow the solicitor to do so in order to protect their Convention rights: specifically Article 5, 6 and 14.
The Upper Tribunal referred to the House of Lords judgment in R(H) v Secretary of State for Health  1 AC 441, which ruled that the appeal rights for a patient detained under section 2 was compliant with the Convention and, though recognising that section 3 is longer, came to the same conclusion. In particular the tribunal relied on the right of the Secretary of State to bring an appeal on a patient’s behalf at any time.
This case raises an interesting question as to how often a person’s detention must be independently reviewed in order to be compliant with Article 5. A patient detained under section 2, which in most instances lasts for up to 28 days, must apply to the tribunal within the first 14 days. Outside of this window they can ask the Secretary of State to make a referral and this is routinely granted. R(H) considered this to be sufficient. For a patient detained under section 3 who lacks capacity to make an application however, after the first six months of detention automatic tribunal referrals are made once every three years (s.68(6)). While the Secretary of State may refer the matter to the tribunal at any point in this period it is safe to assume that in the majority of cases he does not.
Contrast this with the Deprivation of Liberty Safeguards where, as standard, authorisation must be reviewed every 12 months or less if recommended in the best interests assessment. Similarly, a deprivation of liberty authorised by the Court of Protection under the Re X procedure will be reviewed at least every 12 months.
The judgment can be found here.