Well, I figured it was high time I joined the growing army of Bloggers, so here it is, the Mental Health Law Blog! The title gives a generous clue to what makes this different from other Blogs - the focus is on mental health, and in particular mental health law. Mental health law tends to be the “poor relation” in the legal field; it’s not particularly sexy, when it hits the newspapers it is rarely in a good way, and those at the receiving end of it do not tend to have much of a voice.
I thought I would begin today with a issue that has given me much concern over the years I have been practicing in this area, mainly because of the great number of already vulnerable patients who have fallen foul of it; the rules in relation to the right of appeal to a Tribunal for those who have been detained under s.2 of the Mental Health Act 1983.
Section 2 of the Mental Health Act 1983 is an “assessment” section (which can also include enforced treatment) which runs for up to 28 days. Someone who is detained under this section can only appeal to a Tribunal within its first 14 days (and even if you are detained at 11.30pm on Monday, Monday will count as Day 1). Many of those who are detained under s.2 have never been in this position before, and so are unaware of their rights of appeal. They are reliant on the ward staff in the hospital “giving them their rights” under s.132 of the Mental Health Act 1983. They will be given a piece of paper which they may not realize the significance of, or be able to read properly, often due to the side effects of the medication forced upon them. If they ask the nurse to explain it to them, there is no guarantee that the nurse will get it right; I have been dismayed to find that a great number of even experienced staff nurses are unaware of the 14 day time limit. Too often “giving the s.132 rights” appears to be a “tick chart” job, with the “tick” being the objective, rather than leaving the patient with the information that he or she requires in order to be able to exercise their right of appeal. When someone has been forcibly removed from their home and detained in hospital against their will they are often too sedated, too unwell or too angry because of what has happened to them to be able to take this information in to begin with, and far too often I encounter patients, who had no idea what the time limits were, contacting me too late to appeal against their detention, which is a huge failure on the part of the Trust responsible for their care.
Saying that, sometimes I am impressed at the lengths nurses will go to ensure that those detained under the act are able to exercise their right to appeal. Recently at a local hospital I represented an elderly lady whose first language was not English and who refused to tell the staff explain her “s.132 rights”, read any information given to her, or sign any paperwork. She made it abundantly clear, however, that she did not want to be in hospital and wished to return home, and so the nurse completed and submitted an application to the Tribunal on her behalf within the first 14 days of her detention, to ensure that her case could be reviewed by the Tribunal.
A recent case - which did unfortunately did not end well for the patient - highlights the importance of ensuring that the Tribunal application reaches the Tribunal in time. In R (Modaresi) v SSH (2011) EWHC 417 (Admin), due tothe oversight/neglect by Trust employees the claimant missed the 14 day deadline for the submission of a s.2 Tribunal application.
In short, the facts of the case are that on Friday 31 December 2010 the Claimant, on the 12th day of detention under s.2, gave a Tribunal application to a nurse, who faxed it to the Mental Health Act office (the office at the hospital which deals with such matters). It went unnoticed that day but was faxed to the Tribunal office on Tuesday 4 January 2011 when the office reopened after the New Year’s holidays. On the 5 January 2011 the Tribunal rejected the application as out of time. On the 6 January 2011 the Claimant was detained under s.3. On the 7 January 2011 the Secretary of State for Health refused to use his powers under s.67 of the Mental Health Act 1983 to refer the case to the Tribunal; however, following the grant of permission to apply for judicial review, a reference was made by the Secretary of State on the 1 February 2011 and the hearing listed for the 11 March 2011. On the 18 February 2011 the Claimant was released on a Community Treatment Order.
A claim for Judicial Review was made against;
1. the Secretary of State for Health (for refusing to use his powers to refer the case to the Tribunal) and
2. the Tribunal (for deciding that the application was invalid),
3. the Trust (for their actions which resulted in the application arriving with the Tribunal too late).
All the claims were unsuccessful.
The claim against the Secretary of State for Health was rejected as the claimant still had the right to apply to the Tribunal (as they had subsequently been detained under s.3 of the Mental Health Act 1983), and the Secretary of State for Health had already indicated in writing that if such appeal was unsuccessful an application to refer the case for a further Tribunal would be considered at that stage.
The claim against the Tribunal was rejected as the 14 day time period was quite clear and did not have to be extended for applications sent outside office hours. Mr Justice Edwards-Stuart, who heard the case, pointed out that a “patient can send an application to the Tribunal by fax so that it is received almost instantaneously irrespective of whether the office is open or closed”.
He went on to say;
“Since the Tribunal's rules do not require the Tribunal to perform any administrative act upon receipt of an application in order to validate its delivery, there is no reason to construe the time period in section 66(2)(a) as extending to the next working day if the expiry of the time limit would otherwise fall on a weekend or bank holiday.”
This is a very important point to take on board. The Tribunal does not have to do anything in order to “validate” the application, and as long as you can prove that an application was faxed within the 14 day period (e.g. by a fax receipt) then that is an application properly made even if the Tribunal subsequently manages to “lose” the application (which unfortunately happens all too often.)
Finally, the claim against the Trust failed. It was conceded by Counsel for the Claimant that “an isolated failure by an employee” (as opposed to an unreasonable system) would not given rise to a remedy by way of judicial review. It appears that the Mental Health Administrator at the Trust in question had made a fundamental error that I have seen many times before; this is the belief that eligibility for a Tribunal is calculated by reference to the date the patient signed the application rather than that the date of receipt by the Tribunal.
Not very helpfully for those detained under s.2, Mr Justice Edwards-Stuart stated;
However, patients are not presumed to have no idea of what they are doing, otherwise there would not be a statutory duty on managers of a hospital to inform patients as soon as they are admitted of their rights to apply to a tribunal to review the lawfulness of their detention. They should be told of the period in which they must make an application and how to make it. Since, as I have found, the 14 day period applicable to a patient detained under section 2 of the Act can expire on a Saturday, Sunday or a public holiday, one would expect patients to be told that in those circumstances any application should be submitted on the last working day of the period. If this was done, I would be prepared to accept Mr Thomas's (Counsel for the Trust) submission that such arrangements would not be unreasonable. Indeed, I think that Mr Stockwell (Counsel for the Claimant) accepted this. In that situation I do not see how there could be a cause for complaint by a patient who decided to submit an application over a weekend on which the 14 day period was due to expire.”
You may have to read the above paragraph a couple of times to make sense of it before the absurdity of his argument becomes horribly apparent. On the one hand, earlier in this Judgement Mr Justice Edwards-Stuart helpfully points out that service is effective even if done out of hours or on weekends or public holidays, but then he goes on to say that those who wish to appeal against their detention should really do so during office hours on a week day (which, ironically, is exactly what the Claimant in this case did) as otherwise being deprived of a Tribunal hearing will be their own silly fault. No doubt if Mr Justice Edwards-Stuart finds himself detained under s.2 of the Mental Health Act 1983 he will have read up on the Mental Health Act 1983 before his admission and thought to programme his Blackberry to remind him of the impending time limits - of course he will also have to make sure that he is admitted to a ward where such devices are permitted. He will also no doubt have carefully built up his immunity to the sedating effects of psychotropic medication prior to his admission and will have brought along his own fax machine to send off his Tribunal application.
Mr Justice Edwards-Stuart went on to say that he felt that a system to deal with out-of-hours applications would have been unlikely to have made any difference in this case, the application having been given to the nurse during working hours. He did begrudgingly accept that the "Claimant feels justifiably aggrieved that she was deprived her entitlement to make an application for a review of her detention within the 14 day period. It should not have happened.”
Although the claim for Judicial Review failed, therefore, he pointed out that the Claimant could still have a “ private law claim against the third Defendant for breach of contract or other breach of a duty owed to her.” I do not know whether the Claimant’s solicitors are considering (and indeed have started) further legal action, but will try to find out.
So where does this leave someone detained under s.2 of the Mental Health Act 1983 and who only realises that they have a right of appeal on Friday evening, which just happens to be day 12 of their detention? I have just asked my local Trust what procedures they have in place for such an eventuality, and await a response. I would advise those who find themselves in such a positive to contact their solicitors - most of all have a mobile or out of hours telephone number, and we would liaise with the ward to make sure that the application is faxed to the Tribunal in time.
I would encourage all Trusts to take this opportunity to review their procedures regarding s.132 rights and applications made by patients detained under s.2 of the Mental Health Act 1983. Proper training should be provided to those who inform patient of their s.132 rights, and sometimes multiple attempts should be made to tell patients of their rights to ensure that they understand. In cases where no application for a Tribunal has been made, it would be good practice to have a procedure in place at perhaps day 12 of the detention, whereby these patient would be reminded of their rights and in particular that their time to apply is running out.
It is of fundamental importance that those who are already deprived of so many rights as a result of being detained under the Mental Health Act 1983 are not also further deprived of their right to a proper and speedy hearing before a Tribunal.