a campaign to free Margherita Caminita

Admission for treatment - Compulsory detention - Patient's application to mental health review tribunal for review of detention-Hearing date eight weeks after date of application in accordance with usual practice - Whether lawfulness of detention speedily determined by court - Whether practice contravening right to liberty - Mental Health Act 1983, s 3 - Human Rights Act 1998, Sch 1, Pt 1, art 5(4)

Regina (C) v Mental Health Review Tribunal London South and South West Region

CA: Lord Phillips of Worth Matravers MR, Jonathan Parker LJ and Lord Mustill: 3 July 2001

A practice of routinely listing applications by patients compulsorily detained under s 3 of the Mental Health Act 1983 for hearing by a mental health review tribunal eight weeks after the application date did not comply with art 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which required the lawfulness of the patient's detention to be decided speedily by a court. Each application should be heard as soon as reasonably practicable.

The Court of Appeal so held, allowing an appeal by C, a patient compulsorily detained at the time of his application, against the refusal of Scott Baker J on 21 December 2000 to grant judicial review of the decision of the Mental Health Review Tribunal London South and South West Region to list his case for hearing eight weeks after the application date, and granting a declaration that the practice of listing all hearings in respect of patients detained under s 3 of the 1983 Act a uniform specified period after the date of request was unlawful.

LORD PHILLIPS OF WORTH MATRAVERS MR said that a practice had developed under which s 3 applications were routinely fixed for hearing eight weeks after the date on which they were made. In E v Norway (1990) 17 EHRR 30 a compulsorily detained applicant successfully submitted that the eight weeks between application and hearing was too long to satisfy art 5(4). The Strasbourg Court did not to attempt to decide in principle whether a particular period of delay was compatible with art 5(4). It looked at the particular facts to see whether there was a failure to proceed with reasonable despatch having regard to all the material circumstances. That approach was not compatible with a practice of automatically listing an application for hearing eight weeks after the application date unless that was the only practicable way of ensuring that individual cases were determined as speedily as their individual circumstances permitted. On an application by a s 3 patient the tribunal had to consider, among other things, the factors identified in s 72(1)(b)(i) and (ii) in relation to a patient's discharge. The tribunal's decision would be determinative of the patient's fate for the next six months. However urgent the patient's demand for a hearing, such time could properly be allowed as was reasonably necessary to ensure that the tribunal was in a position adequately and fairly to adjudicate on the issues before it. The current practice was bred of administrative convenience, not administrative necessity. There was nothing inconsistent with art 5(4) in having a target date of eight weeks maximum. In cases requiring eight weeks preparation that period would not conflict with the requirement that a decision on the application had to be obtained speedily. His Lordship did not consider lawful a practice which made no effort to see that the individual application was heard as soon as reasonably practicable having regard to the relevant circumstances of the case. Such a practice would inevitably result in some applications not leading to the speedy decision required by art 5(4). The present case was an instance of that result.


Appearances: Oliver Thorold and Stephen Simblet (Jacqueline Everett & Co, Streatham) for the applicant; Nathalie Lieven (Treasury Solicitor) for the tribunal.

Reported by: Susan Denny, barrister