Trinity Term [2013] UKSC 53 On appeal from: [2011] EWCA Civ 1359

JUDGMENT
R (on the application of Modaresi) (FC) (Appellant)
v Secretary of State for Health (Respondent)
before
Lord Neuberger, President
Lady Hale
Lord Wilson
Lord Sumption
Lord Carnwath
JUDGMENT GIVEN ON
24 July 2013
Heard on 19 June 2013
Appellant Respondent
Richard Gordon QC James Eadie QC
Matthew Stockwell Paul Greatorex
(Instructed by Peter (Instructed by Treasury
Edwards Law) Solicitors)
LORD CARNWATH (with whom Lord Neuberger, Lord Wilson and Lord
Sumption agree)
Background
1. This appeal arises out of an unfortunate but isolated oversight in the offices
of the West London Mental Health NHS Trust. It occurred over the New Year
period at the end of 2010. The consequences have long since ceased to have any
practical significance for any of the parties. No relief, financial or otherwise, is
now sought in these proceedings against the trust itself. The appeal has been
pursued to this court solely against the Secretary of State, on the basis that it raises
a question of general importance.
2. That question is formulated by Mr Gordon QC, in his printed case as
follows:
“As: (i) a public body with obligations in public law and (ii) a public
authority under the Human Rights Act 1998 ‘HRA’ 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?”
Factual and procedural background
3. The facts can be shortly stated. Mrs Modaresi, who suffers from
schizophrenia, was admitted to hospital on 20 December 2010 for assessment
under section 2 of the Mental Health Act 1983, which permits detention for a
limited period not exceeding 28 days. By section 66(1)(a) she had a right to apply
to the First-tier Tribunal within 14 days to review her detention and if appropriate
obtain an order for her discharge. Under the rules applying to an application under
section 66(1)(a), the tribunal would have been obliged to arrange a hearing within
seven days of receiving the application (SI 2008/2699, rule 37(1)).
4. On the afternoon of 31 December 2010 she gave a completed application
form to a member of staff on her ward, who faxed it to the appropriate office of the
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trust. Unfortunately, the relevant administrator was out of the office that day and
the form was not seen by others in the office. The office was closed over the New
Year holiday until 4 January 2011, when the form was found and faxed
immediately to the tribunal. Officials in the tribunal’s office determined that it was
out of time, and they wrote to her solicitors to that effect on 5 January. That letter
was received by the solicitors on 7 January 2011. On the preceding day Mrs
Modaresi’s status had changed. She had ceased to be detained for assessment
under section 2, but instead became detained for treatment under section 3. As
such she was entitled to make a separate application to the tribunal under section
66(1)(b). Under that provision there is no specific time limit for holding the
hearing.
5. Her solicitors wrote immediately to the Secretary of State asking him to
exercise his discretion to refer the case to the tribunal under section 67. They
referred to her detention under section 2. They explained that she had completed
the application form to the tribunal within the 14 day time limit, but that as a result
of the bank holiday weekend it had not been faxed to the tribunal until 4 January,
“which was then outside the 14 day time limit”, and that it had been rejected by the
tribunal as invalid. The application to the Secretary of State was made on the basis
that this had come about “through absolutely no fault of our client”, and “due to no
procedures being in place at the hospital for applications to be submitted when no
Mental Health Act administrator is on duty”. Of her change of status the letter
said:
“While our client is now detained under section 3 and therefore is
eligible to submit a new application for a First-tier Tribunal, to do
this would deprive our client of her hearing to which she was entitled
as a section 2 patient. Should the Secretary of State agree to make
the requested referral, this will ensure that our client will retain her
right of application under section 3 in due course.”
6. The Secretary of State replied on 10 January, declining to make a reference
under section 67. This is the decision now under review. According to the letter, it
was not thought that a reference must “invariably” be made where a patient has
failed to exercise her right to apply for a hearing within 14 days:
“The 14 day limit exists for a purpose. The Act makes no special
provision for public or bank holidays or other non-working days.”
The letter noted, without disagreement, the claim that the time limit had been
missed due to the lack of appropriate arrangements within the trust. However the
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Secretary of State “having considered all the information before him” had decided
not to exercise his power to refer:
“In reaching his decision, he took into account that as Ms Modaresi
is now detained under section 3 of the Act, she can make her own
application to the First-tier Tribunal. In the event that Ms Modaresi
did not make an application, the hospital managers would have to
make a reference under section 68 of the Act as of 20 June 2011,
when Ms Modaresi would have been detained under the MHA for
more than six months.
However, should Ms Modaresi make an application to the First-tier
Tribunal and the tribunal panel were to uphold her detention under
the Act, the Secretary of State would consider any further request for
a section 67 reference submitted during her current period of
detention.”
7. Mrs Modaresi did not take up that suggestion. Instead, on 17 January 2011,
she began proceedings for judicial review against the three agencies concerned:
against the tribunal for unlawfully declining to entertain her application as out of
time; against the Secretary of State for unlawfully declining to refer her case to the
tribunal under section 67; and against the trust for its failure to have in place
“lawful arrangements… so as to comply with the requirements of article 5(4)
European Convention on Human Rights”.
8. On 26 January 2011 Cox J granted permission to apply for judicial review,
following which, on 1 February 2011, the Secretary of State reconsidered his
position and made a referral under section 67 as requested. Before the application
was heard by the tribunal, on 18 February 2011 she became the subject of a
Community Treatment Order, with the result that her detention came to an end.
9. She nonetheless pursued her claim for judicial review. It was heard by
Edwards-Stuart J on 22 February 2011 and dismissed for reasons given in a
judgment dated 3 March 2011. He held in summary that the tribunal had been
correct to treat the original application as out of time; that the Secretary of State’s
decision was neither unreasonable nor in breach of her rights under the
Convention; and that an isolated failure by the trust did not give rise to a breach of
article 5(4).
10. Her appeal to the Court of Appeal was dismissed on 23 November 2011, for
reasons given by Black LJ, with whom the other members of the court agreed. By
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that time attention had been drawn by the court itself to the decision of the House
of Lords in Mucelli v Government of Albania [2009] 1 WLR 276, dealing with the
latitude to be allowed where time for service expires on a bank holiday. Following
that authority, the court held that the application to the tribunal should have been
treated by it as in time (as indeed is now common ground). The claim against the
trust accordingly failed, as its oversight had not resulted in the deadline being
missed. The claim against the Secretary of State was also dismissed. Black LJ held
that 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.
Statutory provisions
11. Sections 2 and 3 come within Part II of the Act, headed “Compulsory
admission to hospital and guardianship”. Section 66(1)(a) and (b) provide,
respectively, for applications to the First-tier Tribunal on admission to hospital for
either assessment (under section 2) or treatment (under section 3). Section 72
requires the tribunal to direct the discharge of the patient if not satisfied that the
detention is justified under the criteria there set out. Procedure is governed by rules
made under the Tribunals, Courts and Enforcement Act 2007. By section 11 of that
Act, a decision of the First-tier Tribunal is subject to a right of appeal, with
permission, to the Upper Tribunal. Alternatively, the tribunal may review its own
decision, if for example a clear error has been made (section 9; for the practice see
R (RB) v First-tier Tribunal [2010] UKUT 160 (AAC)).
12. It is unnecessary to set out the relevant provisions in detail, since there is no
issue about their effect in this case. In particular it is not in dispute (i) that, even if
the Secretary of State had agreed to refer the application on 10 January, the seven
day limit would have had no direct application, and the timing of the hearing
would have been in the discretion of the tribunal; (ii) that the application would
have been heard in accordance with the criteria applicable under section 3, not
section 2; but (iii) that these would have been no less favourable from her point of
view.
13. Section 67(1) which is central to the appeal provides:
“The Secretary of State may, if he thinks fit, at any time refer to the
appropriate tribunal the case of any patient who is liable to be
detained… under Part II of this Act…”
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The appellant’s submissions
14. As Mr Gordon rightly submits, the apparently unrestricted terms in which
section 67 is expressed must be read subject to the ordinary constraints which
apply to statutory discretions. It must be exercised in accordance with the purposes
of the statute (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC
997), and not in such a way as adversely affects “the legal rights of the citizen or
the basic principles on which the law of the United Kingdom is based…” (R v
Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 575D
per Lord Browne-Wilkinson).
15. It must also (under the Human Rights Act 1998) be exercised consistently
with the relevant provisions of the European Convention on Human Rights. Mr
Gordon relies in particular on article 5(4) of the Convention, by which:
“Everyone who is deprived of his liberty by arrest or detention shall
be entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release ordered
if the detention is not lawful.”
Further, Strasbourg case-law emphasises the importance of this protection for
vulnerable people such as mental health patients. Thus it has been held that article
5 lays down a positive obligation on the state to protect the liberty of its citizens,
and to provide effective protection for vulnerable persons (Storck v Germany
(2005) 43 EHRR 96, para 102); and that “special procedural safeguards” may be
needed to protect the interests of those who “on account of their mental
disabilities, are not fully capable of acting for themselves” (Winterwerp v The
Netherlands (1979) 2 EHRR 387, para 60).
16. Although he puts his submissions in a number of different ways, his central
point as I understand it is a short one. It is that, where as here, through no fault of
her own, the appellant has been deprived of her fundamental right, under the
statute and the Convention, of speedy access to a court or tribunal to review her
detention, the discretion under section 67 becomes in effect a duty. Failure to
exercise it in the circumstances of this case was a breach of that duty, whether
viewed by reference to the Human Rights Act, to constitutional norms, or to
ordinary public law principles.
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Discussion
17. So far as the appellant’s case relies on fundamental principles of access to
the court, under article 5(4) or otherwise, there is in my view a short answer. She
was not deprived of her right of access to a court or tribunal to review her
detention. She had such a right under section 3. The issue was not the existence of
the right, but how speedily it might be exercised and whether it was as
advantageous as might have been the case if her original application had been
accepted.
18. It is notable that speed of access was not an issue raised by the letter to the
Secretary of State. Nor is it one which can, in my view, arise on the case as it
stands. It is common ground that section 67 did not enable the Secretary of State to
insist on a hearing in seven days, as would have been required on an application
under section 2. The timing would have been in the discretion of the tribunal, as it
would under section 3 and section 66(1)(b). Mr Gordon hinted that the intervention
of the Secretary of the State might have been more persuasive in that respect.
There is, however, no evidence to support such a submission. An application could
have been made to the tribunal under section 3 with a request for an urgent
hearing, supported by explanation of the circumstances in which she had lost her
right under the rules through no fault of her own. I see no reason to think that the
tribunal would not have viewed it sympathetically, but in any event it is not clear
what additional weight could have been given to such a request by the Secretary of
State. On the face of it, a direct approach to the tribunal would have offered the
prospect of a much speedier resolution than the roundabout procedure actually
adopted.
19. So far as appeared from the solicitor’s letter, the only practical reason for
inviting an application under section 67 was to avoid the loss of her right to make a
second reference, if needed, at a time chosen by her. On that point I cannot do
better than repeat Black LJ’s words, with which I agree:
“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
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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.” (para 43)
20. I would emphasise, as Black LJ recognised, that section 67 may in certain
circumstances have a significant role in ensuring compliance with the Convention.
That is well illustrated by the decision of the House of Lords in R (H) v Secretary
of State for Health [2006] 1 AC 441, on which Mr Gordon also relied. In that case,
the appellant, who had been detained for assessment under section 2, was too
disabled to make an application to the court on her own behalf. There was a
dispute between her mother, as her nearest relative, and the responsible medical
officer over her treatment, following which an application was made to the county
court under section 29 for the functions of the nearest relative to be exercised by
an approved social worker rather than the mother. This had the effect (under
section 29(4)) of extending the period of detention until that application was
disposed of. At the mother’s request, the Secretary of State then exercised his
power under section 67 to refer the case to the tribunal, which heard the case but
declined to discharge her.
21. She brought judicial review proceedings challenging the compatibility of
section 29(4) with article 5(4). In rejecting that contention, Lady Hale commented
on the nature of the Secretary of State’s role under section 67, and the advantages
of section 67 over the alternative route through the county court:
“This is preferable because mental health review tribunals are much
better suited to determining the merits of a patient’s detention and
doing so in a way which is convenient to the patient, readily
accessible, and comparatively speedy. As already seen, a reference is
treated as if the patient had made an application, so that the patient
has the same rights within it as she would if she herself had initiated
the proceedings. It can, of course, be objected that this solution
depends upon the Secretary of State being willing to exercise her
discretion to refer. But the Secretary of State is under a duty to act
compatibly with the patient’s Convention rights and would be well
advised to make such a reference as soon as the position is drawn to
her attention. In this case this happened at the request of the patient’s
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own lawyers. Should the Secretary of State decline to exercise this
power, judicial review would be swiftly available to oblige her to do
so….” (para 30)
I would only add that the advantages of convenience and accessibility to which she
referred have been reinforced by the changes in the legal and administrative
structures of the tribunal following the 2007 Act.
22. That passage provides additional support for Black LJ’s approach. Given
the appellant’s right to apply under section 3, there was no present conflict with
article 5(4). The Secretary of State was entitled to proceed on that basis. The
position might well have been different, as Mr Eadie QC seemed inclined to
accept, if she had continued to be detained under section 2, and had not acquired a
separate right under section 3. In circumstances where she had lost her right of
immediate access to the tribunal wholly through the fault of the trust, itself an
agent of the state for these purposes, it could well be said that the Secretary of
State had a positive duty to remedy the position. It is however unnecessary to
decide that point, which does not arise on the facts before us.
23. As things were, given the existence of her section 3 right, the risk of a
breach would only arise if and when her first application had failed, and her
circumstances had changed sufficiently to make a second application realistic. It is
true that the Secretary of State had not promised to make a reference at that stage.
Section 67 gave him no power to commit himself in that way. All he could do was
to agree to consider the use of that power if and when it became necessary. But
that discretion would, as Black LJ said, be underpinned by his duty to avoid a
breach of article 5(4).
24. Finally, I should briefly address Mr Gordon’s alternative submission, not so
fully developed, that the Secretary of State’s decision was vitiated in any event by
his error over the applicable time limit, even if that error was shared at the time
with everyone else, including the appellant’s solicitor. Nonetheless, it is said, that
was an error of law, and as such was sufficient in itself to render the decision liable
to be set aside.
25. I find this a surprising argument. 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 secondguess 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
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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.
Conclusion
26. Notwithstanding Mr Gordon’s forceful submissions, in my view, this case
turns on its own facts and raises no point of general principle. In the particular
circumstances, the Secretary of State’s response to the solicitors’ letter of 7
January 2011 was both lawful and reasonable. Accordingly, in agreement with the
reasoning of the Court of Appeal, I would dismiss the appeal.
LADY HALE
27. I entirely agree that this appeal should be dismissed for the reasons which
Lord Carnwath gives. However, the appellant has undoubtedly been let down by
the system through no fault of her own and there are some important lessons to be
learnt.
28. Under article 5(4) of the European Convention on Human Rights, she had
the right “to take proceedings by which the lawfulness of [her] detention shall be
decided speedily by a court and [her] release ordered if the detention is not
lawful”. Under article 5(1), her detention was only lawful if it was “in accordance
with a procedure prescribed by law”. The Mental Health Act 1983 gave her the
right to apply to the First-tier Tribunal within 14 days of her detention on 20
December 2010. Had her application of 31 December 2010 been processed as it
should have been, her case would have been heard by the tribunal within seven
days after its receipt, that is no later than 11 January (as required by rule 37(1) of
the tribunal rules). The tribunal would have had a duty to discharge her if it was
not satisfied that the criteria for detention were satisfied and the power to
discharge her even if they were (section 72(1)). As by that date her detention under
section 2 had been replaced by detention under section 3, it is common ground that
the more exacting criteria for section 3 detention would have applied to her case.
29. The system let her down in a number of ways. First, the hospital failed to
transmit her application to the tribunal on the day that it was made. The judge held
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that, if the hospital trust had a reasonable system in place for transmitting these
applications, an isolated failure would not give rise to a remedy by way of judicial
review (para 65). He also held that, if the trust believed that the tribunal would
calculate time from the date when the application was signed, as opposed to the
date when it was received, then it was not unreasonable for it to have a system
which did not provide for applications made outside normal hours to be
transmitted without delay to the tribunal (para 81). Once it became aware that the
tribunal would calculate time from the date on which an application was received,
such a system would not be reasonable (para 82). Further, even if it had no
reasonable grounds for its belief that the tribunal would calculate time from when
the form was signed, it would not have been unreasonable to have the system that
it did, provided that it explained, in the information given to patients, that
applications would have to be made during normal working hours (para 83).
30. On appeal, as is recorded by Black LJ, the appellant wished to argue (1) that
in order to comply with article 5(4), the hospital trust had a duty to have in
operation a system that enabled patients to make applications to the tribunal in
time; (2) that the judge was wrong to consider that failing to transmit an
application in time because of an oversight or neglect could excuse the hospital
from responsibility; and (3) that the judge was wrong to consider that the system
actually in place was reasonable. The Court of Appeal held that it was the tribunal,
and not the hospital, which had created the problem, by wrongly refusing to accept
an application which it had, in fact, received in time. Hence the court declined to
entertain further argument on these points, on the ground that, if these arguments
were to be deployed, it would be “better that this is done in a case in which they
would have the potential to affect the outcome of the proceedings” (para 33).
31. There has been no appeal to this court against the dismissal of the
proceedings against the hospital trust. We have therefore heard no argument on
these issues. But in my view it would be unwise for hospitals to conduct
themselves on the basis that the judge was correct in his approach. These
proceedings were brought by way of judicial review, but it was alleged that the
patient had been unlawfully deprived of her liberty, in other words that her
Convention rights had been violated. It is the hospital which deprives the patient of
her liberty. It is incumbent upon the hospital to do this in accordance both with the
domestic law and with the patient’s Convention rights. A failure which deprives
the patient of the right of access to a tribunal which the law provides may well (I
put it no higher) be a breach of the patient’s Convention rights. The only safe
course is to have a system which ensures that this does not happen.
32. The Mental Health Act 1983 Code of Practice (Department of Health, 2008)
reminds hospitals that patients must be told, both orally and in writing, of their
right to apply to the tribunal and how to do so (para 2.17). This is a statutory duty
under section 132(1) of the Act. The Code also advises that hospital managers
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should ensure that patients are offered assistance to make an application to the
tribunal (para 2.18). It would be helpful if the Code were also to advise that the
hospital should ensure that tribunal applications which are given to hospital staff
are transmitted to the tribunal without delay. A detained patient is in no position to
ensure that her application reaches the tribunal unless the hospital affords her the
facilities for it to do so.
33. Secondly, the tribunal let her down by failing to accept her application
when it arrived. This may be understandable, given that her lawyers and the judge
both made the same mistake (see [2011] EWHC 417 (Admin), para 45). But it is a
little surprising. As Mr Gordon pointed out, the House of Lords did not make new
law in Mucelli v Government of Albania [2009] 1 WLR 276. At para 84, they
adopted what had already been decided 40 years ago by the Court of Appeal in
Pritam Kaur v S Russell & Sons Ltd [1973] QB 336: that when an Act of
Parliament prescribes a period for doing an act which can only be done if the court
office is open on the day when time expires then, if it expires on a day when the
court office is not open, the time is extended to the next day on which it is open.
No doubt that message has now been heard loud and clear in the tribunal offices
and the same mistake will not be made again. That is another good thing to have
come out of these proceedings.
34. Had either of those two mistakes not been made, the patient should have
had her tribunal hearing on or before 11 January 2011 (the tribunal has a more than
90 per cent record in achieving this). We cannot know what the result would have
been. Given that she was in fact placed on a community treatment order on 18
February 2011, it is not impossible that it would have been successful.
35. Instead of bringing these proceedings, however, she might have made an
application immediately following the replacement of her admission for
assessment under section 2 with an admission for treatment under section 3 on 6
January 2011. No deadline for hearing section 3 applications is laid down in the
tribunal rules, and the normal target time is six to eight weeks. But it is always
possible to ask for an early or urgent hearing. In a case where a patient has, for
whatever reason, just missed the deadline for a section 2 application, the tribunal
might well be sympathetic to such a request. In any event, the patient would be
more likely to obtain the speedy hearing of her case before a tribunal with power
to discharge her than by the roundabout route of applying to the Secretary of State
for a reference under section 67 and bringing judicial review proceedings if he
refused.
36. Thirdly, therefore, the Secretary of State did not let her down. He dealt
promptly and sensibly with the request for a reference. As with a section 3
application, there is no deadline within which the tribunal must hear such
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references. The Secretary of State might request expedition but one hopes that if
there is a good case for expedition (as in this case) the tribunal would be as likely
to grant it at the request of the patient or her representatives as it would be at the
request of the Secretary of State. Furthermore, a reference inevitably involves
additional procedures as there are more parties involved, so it is likely to take
longer to be heard than an ordinary application.
37. For all those reasons, although these proceedings have been unsuccessful,
and the patient would have been better served by a different route, they have not
been entirely in vain.
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