Seal v UK 50330/07: European Court of Human Rights (7 December 2010): The claimant had brought a claim against the police as a result of the police exercising powers under section 136 Mental Health Act 1983 as amended (“the MHA 1983”) which inter alia included claims for assault and trespass to the person. The claimant issued his claim on the eve of the limitation period without seeking leave under section 139(2) MHA 1983 and by a majority decision of 3:2 the House of Lords had found that his claim was a nullity. The European Court of Human Rights held that the claim was admissible in respect of the challenge to section 139(2) MHA 1983. Nevertheless the Court held the following. There was no breach of Article 6 of the Convention because (i) the six-year limitation period in the Limitation Act 1980 pursued a legitimate aim which was consistent with previous decisions of the European Court; (ii) section 139 MHA 1983 was to restrict access to the court only where the claim was manifestly unmeritorious, the restriction was not limited to persons suffering from a mental disorder and its general aim of protecting those who exercise powers of detention under the MHA 1983, including the police, pursued a legitimate aim. This was consistent with Ashingdane v UK (28 May 1985). (iii) the decision to strike out did not impair the claimant’s right of access to court and was not disproportionate. The claimant had not explained his delay or failure to seek permission to bring the claim, and should bear those consequences, and in any event could continue his non-MHA 1983 claims. The European Court found there had been no breach of Article 6 taken with Article 14 (click here for judgment).
RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273: (Sedley, Moses and Sullivan LJJ). The Court of Appeal held the SC case stated that one of the key questions that the Tribunal will wish to ask itself when considering how to exercise its powers under section 75(3) of the Mental Health Act 1983 is whether it is (as in section 73(1)(b)) 'satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment'. Placing the burden of proof on the patient is not in breach of the ECHR as Article 5 does not apply but the conditions imposed may engage Article 8, but it is justified to require a patient made subject to a restriction order following a criminal trial/conviction to satisfy the First Tier Tribunal (FTT) that the order should cease to have effect. The FTT's reasons were adequate. Further the FTT had not said that RH's restriction order 'should remain in place essentially for life' so this ground of appeal failed. Moreover the FTT's comparison between conditional discharge and a life licence was merely to explain why the gravity of the index offences was a relevant consideration. Also the FTT was entitled to order that its decision be placed before any future FTT because earlier decisions are material considerations. Further except possibly in relation to the burden-of-proof ground as an important point of principle the Upper Tribunal should not have granted permission to appeal. The Court of Appeal also held that particular care should be exercised before granting permission to appeal on a ground that was not raised below and had the Secretary of State for Justice been notified of the new grounds it is likely that the response would have led to permission not being granted. (click here for judgment)
R (SP) v Secretary of State for Justice [2010] All ER (D) 308 (Nov): The Secretary of State for Justice was entitled to rely on a medical recommendation under section 47 MHA 1983 which did not explicitly address the new 'appropriate treatment' test as his case workers are not concerned to pursue medical reasoning, but only to see whether the expert had given some reasons which they considered adequate and did not conflict with the facts known or the statutory requirements. The Secretary of State was entitled to give the reports a sensible meaning, and to satisfy himself that the 'appropriate treatment' test was met by reference to matters which had been in the report by necessary implication. (no transcript available)
