Whilst 18 barristers fought it out over the Cheshire case in the Supreme Court this week, the European Court of Human Rights (ECtHR) handed down a judgment which could have equally dramatic consequences for the Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS): MH v UK. MH v UK confirmed what I have suspected for a long time, that the DoLS fall short of the requirements of Article 5(4) ECHR – the right 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’. The key issue is that without the assistance of a third party a person detained under the DoLS is unable (in practice) to be able to exercise their right of appeal, but there is no failsafe means by which the DoLS guarantee the requisite support. In essence, there may be duties upon various entities to assist a person in exercising their right of appeal under the DoLS, arising via the Human Rights Act 1998 (HRA). But it is not entirely clear who, and few people – at present – are interpreting them in that way. The million dollar question is – how do we respond to this?
MH is a woman with Down Syndrome, who had been living with her mother. She was detained under s2 Mental Health Act 1983 (MHA), and her mother became her Nearest Relative (NR). As NR, her mother sought to exercise her right to order that MH be discharged from detention (s23 MHA), but the responsible medical officer issued a ‘barring order’ (s25(1) MHA) which certified that MH, if discharged, would be dangerous to herself or others. This had the effect of invalidating MH’s mother’s discharge order and prevented her from issuing another one for six months. Meanwhile, the local authority began proceedings in the County Court to displace the mother as the NR, which had the effect of extending the detention (s29 MHA), and investigated making a guardianship order for MH.
Now, for the first fourteen days of her detention, MH would have been entitled to seek her own release by applying to a Tribunal (s66 MHA). MH did not do this ‘because she lacked legal capacity* to instruct solicitors’ . After that fourteen day period it would have been possible to request a referral to a Tribunal from the Secretary of State (s67 MHA). Again, this was not something MH would have been able to do herself, but solicitors acting on the instructions of her mother requested that the Secretary of State refer MH’s case to a Tribunal. This he duly did, a Tribunal was convened (almost two months after the initial detention), and it decided not to discharge MH. She was eventually discharged, after approximately six months of detention, when the local authority found suitable residential accommodation.
The case continued, however, in the form of a challenge to the lawfulness of MH’s treatment under the Human Rights Act 1998 (HRA). Now acting through the Official Solicitor, MH contended that s66 MHA was incompatible with Article 5(4) ECHR (the right of persons deprived of their liberty 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’) as it placed the onus on detainees to make the application. The second issue raised was that once a barring order had been issued, neither the detainee nor their NR could apply to the Tribunal, and the third that where proceedings to displace a NR were initiated a person’s detention under s2 MHA could be continued indefinitely. The High Court declined to make such declarations, but the Court of Appeal made two, Lord Buxton expressing concern about:
‘…the imbalance between the competent patient, who can apply to the [Mental Health Review Tribunal] under section 66 within 14 days of his detention, and the incompetent patient who, because he is not mentally able to make or promote such an application, has no recourse to an outside body: except through the agency of the nearest relative, who can be, and in this case was, barred’ 
Lord Buxton further observed that it could not have been the intention of the drafters of Article 5 ECHR to exclude from the scheme of protection of Article 5(4) persons finding themselves in MH’s position ‘simply because of their mental inability’ . Mr Justice Lindsay added that the ECHR never said that only people with capacity were entitled to bring proceedings under Article 5(4) .
The House of Lords allowed an appeal, and declined to find the scheme of protection for persons in MH’s position incompatible with Article 5(4) ECHR. This was because, in the words of Lady Hale, the scheme was ‘capable of being operated compatibly’ . On the question of whether the right to take proceedings under Article 5(4) is ‘theoretical and illusory’ rather than ‘practical and effective’ if the patient is unable to do so, Lady Hale commented:
‘… it does not lead to the conclusion that section 2 is in itself incompatible with the Convention or that the solution is to require a reference in every case. Rather, it leads to the conclusion that every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so.’ 
The impact of MH’s case on the development of the deprivation of liberty safeguards
Before picking up on what happened to MH’s case at the ECtHR, let us diverge to the parallel tale of the development of the DoLS. As readers will know, the DoLS were developed in response to the ECtHR’s ruling in HL v UK, which found a violation of Mr HL’s Article 5 rights on the basis that there was no clear procedure prescribed by law for detention under the common law doctrine of necessity (a violation of Article 5(1)) and that there was no Article 5(4) compliant means for Mr HL to take proceedings before a court to determine the lawfulness of his detention. When the government opened its Bournewood Consultation in 2005, to decide how to respond to the ruling in HL v UK, MH’s case had just been heard before the Court of Appeal. The government noted:
Following the coming into force of the Human Rights Act 1998, the Government initially took the view that rights under Article 5(4) were sufficiently protected by existing mechanisms such as judicial review and habeas corpus. But that view has now been called into question by the recent decision of the Court of Appeal in MH (whereby section 2 of the 1983 Act was found incompatible with Article 5(4) of the ECHR because there is no provision for automatic review by the tribunal of the detention (under that section) of patients who lack capacity). The Government has lodged an appeal with the House of Lords which is due to be heard at the end of July. If the Court of Appeal’s decision were upheld, an automatic referral mechanism to a court or tribunal might need to be made available to persons of unsound mind who lack capacity and are deprived of their liberty. [5.11]
The House of Lords handed down its decision in October 2005, and did not require an automatic review procedure, but did require that ‘every sensible effort should be made to enable the patient to exercise [their Article 5(4) right] if there is reason to think that she would wish to do so’. There was no explicit discussion of the House of Lords’ ruling in MH in the 2006 consultation response document, but the Government did say this:
‘Each person who comes within the scope of the Bournewood provisions will be entitled to have a suitable person appointed to act as his or her representative, who will have the right to bring proceedings before the Court of Protection. If a person suitable to undertake this role cannot be identified from relatives, friends and carers, an “independent person” (who may be an Independent Mental Capacity Advocate) will be appointed by the relevant local authority in respect of a care home resident or the relevant Primary Care Trust (PCT) or, in Wales, the National Assembly in respect of a hospital resident (taking account of the individual’s best interests). The appointed person will have an unfettered right to bring proceedings before the Court of Protection. In the case of a person who is unbefriended, a nominated person will be appointed to represent his or her interests.’ 
Presumably, therefore, the government regarded the role of the Relevant Person’s Representative (RPR) and the provision of Independent Mental Capacity Advocates (IMCAs) to be sufficient to comply with the requirement to make every sensible effort to help a person to appeal. I will discuss below whether these provisions do – in theory, or in practice – comply with the requirements of Article 5(4), as developed in MH v UK and other relevant ECtHR case law.
MH v UK
The ECtHR took a different view of MH’s case to the House of Lords, finding one (of a possible three) periods of MH’s detention did constitute a violation of her Article 5(4) rights.
The Court noted that during the first 14 days of her detention, a remedy which would have been available to a ‘competent’ patient (an application to a Tribunal) , but this remedy was not in practice available to MH ‘because she lacked legal capacity’ . Although the Court declined to dictate exactly what form the ‘special procedural safeguards’ for person’s in MH’s situation should take, it did state that they must ‘make the right guaranteed by Article 5 § 4 as nearly as possible as practical and effective for this particular category of detainees as it is for other detainees’ . An automatic review might be one such means, but it was not the only possible means.
The Court also observed that whilst there were other possible remedies available to MH after that initial fourteen day period (judicial review; habeas corpus or – as she did – asking the Secretary of State for a referral to the Tribunal), these too were limited by her lack of legal capacity . Her mother could have initiated habeas corpus proceedings, but the Court held that it was ‘wholly unreasonable’ to expect her to do so , or requested a referral to the Tribunal  as the Convention ‘does not oblige applicants, after unsuccessfully attempting the obvious remedy at their disposal, to attempt all other conceivable remedies provided for under national law’ . Accordingly, the ECtHR found that MH’s Article 5(4) rights had been violated during the first 27 days of her detention under s2 MHA, because she had not been able to exercise her the right herself and the expectation that her mother should do so on her behalf was unreasonable.
MH’s detention was, as discussed, extended because of the proceedings to displace her mother as NR. During this period of time, MH’s mother had managed to get solicitors to (successfully) seek a referral to a Tribunal from the Secretary of State. The Court concluded that in this next period of time, her Article 5(4) rights were not violated, however it is worth taking a closer look at what it said along the way – as this may well have a bearing on both the MHA and the DoLS.
MH’s case ended up before a Tribunal because her mother had acted upon her own initiative to find solicitors to seek a referral from the Secretary of State, who in turn had agreed to make the referral. There were, thus, two stages in a contingent chain of events which enabled MH to exercise her Article 5(4) rights of appeal. Had either her mother, or the Secretary of State declined to help MH get to a Tribunal, she would have been unable to exercise her Article 5(4) rights.
In previous cases concerning Article 5(4), the ECtHR has, in its own words, ‘not looked favourably upon procedures which depend upon the exercise of discretion by a third party’ (see also Stanev v Bulgaria and Shtukaturov v Russia). The critical question was – were either of these parties acting upon the exercise of discretion to help MH exercise her Article 5(4) rights, or were they acting upon a duty which obliged them to assist her? Section 67 MHA certainly looks a like a discretionary duty:
(1) 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 or subject to guardianship under Part II of this Act or of any community patient.
However, in the House of Lords Lady Hale had argued that the Secretary of State was exercising functions of a public nature in the meaning of s6 HRA, and so he was effectively under a duty to ensure compliance with MH’s Article 5(4) rights. The ECtHR agreed:
…the Secretary of State was required under the Human Rights Act to exercise any power compatibly with the rights enjoyed by individuals under the Convention. This means that once a request is made for a referral, rather than enjoying a discretionary power to refer the case to the Tribunal, he is under a duty to do so if not to do so would involve an infringement of the patient’s rights under Article 5 § 4 of the Convention to obtain speedy judicial review of the detention. In such circumstances, the referral to a judicial body cannot be said to be dependent on the goodwill or initiative of the Secretary of State, but rather is a legal consequence flowing from his statutory obligation to act compatibly with the patient’s rights under Article 5 § 4 of the Convention. 
This was enough to distinguish MH’s case from Stanev and similar cases where third parties (in Mr Stanev’s case: the mayor, his guardian and the public prosecutor) had a discretionary power to help the person to apply to a court, but (in those cases) chose not to exercise it – in contravention of Article 5(4). This does rather beg the question, I feel, of what the point of going all around the houses to the Secretary of State to request a reference to the Tribunal is, if he is obliged to make that referral anyway, but then one does not look to mental health legislation for logic.
Now, the other point in the chain – as I have noted – was that the referral from the Secretary of State was as a result of MH’s mother requesting it. It cannot be said that MH’s mother was under such a duty; nothing in the MHA obliges a NR to make such a request, and MH’s mother is not a public authority in the meaning of s6 HRA, so would not be under the same duty as the Secretary of State to act in accordance with MH’s Article 5(4) rights. The Court said:
The question might be asked whether such a hearing could have taken place had the applicant not had a relative willing and able , through solicitors, to bring her situation to the attention of the Secretary of State. 
However, the Court could not address such a hypothetical situation as in this case MH’s mother had made such a request, and so MH had been able to exercise her Article 5(4) rights. Whatever the shortcomings in the system for others, who were not so fortunate to have a relative who would help them request a referral to a Tribunal, MH herself was not deprived of her right to a review of her detention and so she could not claim victim status under the Convention . Accordingly, no violation was found for this period of time in this particular case, but the Court certainly seemed to be dropping a strong hint that in other cases it might be willing to do so.
The Court also ruled that the for the period following MH’s Tribunal hearing, where the Tribunal had declined to discharge her from her detention, there was no violation of her Article 5(4) rights as it did not guarantee ‘a right to take proceedings against an order of detention issued by a judicial body applying an appropriate judicial procedure’ .
What does this mean for the deprivation of liberty safeguards?
There will probably be plenty of analysis (from the government, if no other) of what the ruling in MH v UK means for the MHA, but I want to turn to consider what it means for the DoLS – which were built upon the assumption that the ruling of the House of Lords in MH’s case was correct.
Just to recap, the key points raised by this case were that:
- Special procedural safeguards are required to ensure that the right guaranteed by Article 5(4) is ‘as nearly as possible as practical and effective’ for detainees who lack the ability to exercise this right independently ‘as it is for other detainees’;
- This could involve an automatic periodic review, but it need not necessarily;
- It is acceptable for third parties to play a role in facilitating this review, but they cannot be exercising a discretionary power to help – a detainee cannot be reliant upon their ‘goodwill or initiative’, there must be a duty to help.
Turning to the MCA, a detainee has a right to bring their detention before the Court of Protection to determine it’s lawfulness (under s21A MCA). Given that the very basis for their detention is ‘incapacity’ I think that it is a fair assumption that in the majority of cases, they would fall into the same category as MH: as somebody unable to initiate such an application without the assistance of a third party. There are five possible sources of such assistance:
- The relevant person’s representative (RPR) has the same rights as the detainee to bring proceedings under s21A MCA, including rights to legal aid and no need to seek permission to do so;
- A third party – for example, a family member who was not made RPR – can also bring proceedings under s21A MCA, but they will not have the same ‘gold plated’ rights to legal aid and they will need to seek permission to do so;
- An IMCA – appointed under s39A, s39C or s39D MCA – might also bring proceedings under s21A MCA, or they might assist either the detainee or the RPR in doing so;
- A supervisory body or a managing authority (5) might also refer a case to the Court of Protection – they would most likely do so under s16 MCA, as the forms for s21A MCA are not really set up to enable them to do this. Unfortunately, this kind of referral would have the effect of meaning that the detainee and the RPR were not entitled to ‘gold plated’ legal aid (not only are DoLS detainees one of the only groups of detainees who might have to fund their own detention, they might also have to fund the court proceedings to authorise it!)
Whilst all these sources of assistance have powers to refer a case to the Court of Protection on behalf of a DoLS detainee, non – possibly barring s39D IMCAs, whom I’ll come onto shortly – are under any explicit statutory duty to do so. Supervisory bodies – being local authorities – will certainly be public authorities under the HRA, and so arguably they are under the same duty to refer a case to the Court of Protection as the Secretary of State in MH’s case. Some managing authorities will be local authority run care homes, or NHS hospitals, and so they will also be core public authorities under the HRA, and might have a similar duty. Most managing authorities will be private sector care homes, and even allowing for the residual ‘loophole’ in the application of the HRA to the care sector, they would almost certainly be hybrid public authorities even under the ruling in YL v Birmingham City Council because they are exercising powers of detention (see paragraph 70 of YL).
Of RPRs and IMCAs the situation is slightly less clear. I am inclined towards the view that paid RPRs and IMCAs should be hybrid public authorities, but I cannot find any sensible way to say that they are exercising functions of a public nature whereas unpaid RPRs (who will be family and friends) are not – given that their functions are nigh-on identical (except for s39D). Questions will also arise about which public authority carries the duty, if there are potentially several involved in the detention.
Section 39D IMCAs were, I suspect, invented to try to deal with Lady Hale’s injuncture in MH that ‘every sensible effort’ should be made to help a person to appeal under the DoLS. They are the only person under the DoLS who has a clear statutory duty to assist a detainee in making their application to the Court of Protection:
(8) The advocate is, in particular, to take such steps as are practicable to help P or R–
(a) to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right… (s39D(8))
If you read s39D(5) it looks very much as if any person (regardless of whether they are actually objecting or not) who would need assistance to bring an appeal under s21A MCA should qualify for support from a S39D IMCA, even if they have not requested it, as a referral must be made in the following circumstances:
(a) that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;
(b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;
(c) that P and R are each unlikely to exercise a relevant right when it would be reasonable
Now, it could be argued that supervisory bodies are under no duty to refer to an IMCA under s39D if a person’s RPR is able to exercise the right of appeal and P is not, even if the RPR chooses not to do so. This is because the statute says that the referral should be made when ‘P and R’ are unable to exercise the right, not ‘P or R’. This would be a problematic construction, however, in light of the ECtHR rulings I have discussed – including MH v UK – as it could result in there being no person who is willing and able to assist P in exercising his right of appeal. It is difficult to conflate the RPR’s unwillingness with an inability to exercise a right of appeal, but one could get around this by saying that it would be ‘reasonable’ for the RPR to exercise a right of appeal if P is objecting or other relevant circumstances applied, and so since neither P nor R have appealed a referral to an IMCA under s39D should be made. This would be compatible with the supervisory body’s duty to assist P in exercising his Article 5(4) rights.
If a challenge were brought that the DoLS did not comply with the ruling in MH v UK, the government could – I think – try to argue that if the s39D IMCAs were operating properly then people would be given the assistance they need to appeal. The problem is, the system manifestly is not. It breaks down at two points: referrals, and IMCA’s willingness to help a person to appeal. Data I looked at from 2011-12 found that the number of s39D referrals was around 11% of the number of authorisations, and some of those referrals were for the RPR – meaning the IMCA might not be able to help the detainee to appeal, if the detainee wanted to and the RPR did not. One third of local authorities had never made a s39D referral, including some with over 100 DoLS authorisations. Can we seriously believe that in all those cases, those people would have been able to exercise their right of appeal without the help of an advocate? I suspect (indeed know – they have told me) that some supervisory bodies are simply relying on people requesting support, but this is not enough to comply with s39D.
… it is undoubtedly lawful for actions to be taken by families and local authorities, acting together on the basis of a careful assessment of the best interests of incapacitated persons. The vast majority of arrangements are made in this way and involve no breach of the rights of the persons concerned. Where there is a deprivation of liberty (referred to as a “DOL”) a specific statutory code exists to provide safeguards. 
… there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court. 
The problem is, these two statements are subtly different. The first could be read as saying that so long as families and local authorities are in agreement – regardless of P’s objections – there is no need to go to court. This, clearly, is at odds with the message in MH v UK, as well as many other ECtHR cases where the family of a person who ‘lacks capacity’ has raised no objection to their detention but a violation of Article 5(4) has been found (e.g. Stanev, etc). The second comment is more in tune with MH v UK, that a person should be ‘enabled’ (in MH v UK it was ‘empowered’, and it seems to me quite in tune with Lady Hale’s comments in the House of Lords that ‘every sensible effort’ should be made to assist a person) to exercise their right of appeal. This comment, I suspect, is being routinely overlooked by supervisory bodies, or again interpreted along dubious lines of whether there is a big stink being kicked up by the detainee’s family, whether it’s in their ‘best interests’ to go to Court, their prospects of success, etc.
What now for the deprivation of liberty safeguards?
As I said, I think that a government forced to defend the DoLS against the ruling in MH v UK could point to a number of possible entities who have a duty to assist P in exercising his or her rights to appeal under Article 5(4). The question is: who and when? On this, the DoLS code of practice is utterly useless, and seems to be geared towards discouraging any case from going to Court unless ‘necessary’ (with no discussion of what constitutes ‘necessary’ and giving a strong hint that this depends on IMCAs and RPRs exercising their discretion in this respect… which would be improper, of course, under MH v UK). There are, in a sense, too many possible duty bearers (IMCA or RPR? IMCA or supervisory body? Supervisory body or managing authority?). And even those who have a relatively clear statutory duty (ie. s39D IMCAs) seem not to have understood the gravity of that duty as the safeguard the DoLS are supposed to deliver. I think, at the very least, new guidance will need to be issued.
What the content of that guidance should be is, however, problematic. The ECtHR did not lay down any clear requirements as to what the ‘special procedural safeguards’ should consist in, except to say that an ‘incompetent person’ (by which they meant a person who would rely on third parties to exercise their rights of appeal) should be put – as far as possible – on an equal footing with somebody who required no such assistance. But what does this mean? Does this mean they should be helped to go to court if they are clearly objecting? What if they are less-than-clearly objecting (objecting one day, acquiescing the next)? What if they – like HL in the Bournewood case – can not articulate a clear objection? The problem with pinning this duty on objections is that it seems to open up a whole host of questions – and scope for discretionary judgments and ambiguity – around what constitutes enough of an objection to require a referral to the Court of Protection. If supervisory bodies’ and IMCAs’ approach at present is anything to go by, most will use any possible shade of doubt to avoid doing so.
So if not objections, then what? It is hard to think of anything else the duty could hang off other than a time limit, but even this is problematic. If you leave it too long, a person’s prospects for discharge may have rapidly dwindled, because their condition has deteriorated, or perhaps their home has now been sold to fund the care home placement they are now detained in. The question of how long is ‘too long’ will itself be highly fact specific.
The biggest problem of all, of course, is that there is very little pressure to bring about change. The most obvious source of pressure would be a test case – but once a case has managed to get to court the person has (like MH herself) pretty much ceased to be a victim under Article 5(4). So this almost-impossible-to-access remedy serves as a safety valve, a comfortable illusion of Convention compliance, relieving pressure on anybody in a position of power to sort out this mess.
[afterthought (24/10/2013): Given that there is so little clarity over precisely who, and how, should assist a person detained under the DoLS to exercise their right of appeal, I wonder if – rather than waiting for government guidance on this or adversarial litigation because a person’s rights have been violated – it might be possible for a public spirited supervisory body to apply to the Court of Protection for a declaration (under s15(1)(c) MCA) regarding the lawfulness of themselves, IMCAs, and RPRs assisting (or not assisting) a person to exercise their rights of appeal. As Jackson J noted in Neary, ‘Proceedings in the Court of Protection need not be adversarial’, and if a supervisory body has doubts over when, and who, should assist a person in relation to their rights under the DoLS, the Court of Protection seems best equipped to answer this. It would have to involve a particular person, and the supervisory body would have to be extremely cautious regarding the impact the litigation could have on them and their resources. The most useful test case would be a situation where the RPR does not want to help P to appeal because they support the detention, as these are the cases where P is least likely to obtain the assistance he needs to appeal. But, this might be one way of obtaining greater clarity on this issue, as it may be a long time before the code of practice is revised. It might also be possible for an RPR to bring such a case seeking clarification over their legal responsibilities and the responsibilities of others. It was pointed out to me that an ideal candidate might be an RPR who is concerned about what will happen to their relative if they would not be able to fulfill that role in the future. Another suggestion was that P himself could bring a test case (via the Official Solicitor, or another litigation friend such as an IMCA, for a violation of Article 5(4) if there had been no review for a period of a year. It’s important to remember, when thinking about these test cases, is that the issue isn’t about whether the criteria for detention were in fact met, it is about whether or not there were sufficient guarantees against arbitrariness, which is what Article 5 – and in particular Article 5(4) – is designed to offer.]