The Court of Appeal ruled that section 15(3) of the Mental Health Act 2001 was unconstitutional because it did not provide patients detained under longer renewal orders with an effective way to obtain an independent review of their mental health status within a reasonable time. The court suspended the declaration until 8 November 2018, when it would take effect without further order.
The judgment, delivered by Mr Justice Gerard Hogan on 3 May 2018, arose from an appeal and cross-appeal concerning A.B., identified in the judgment as Mr B. He had been detained at St Loman’s Hospital from May 2015 until his discharge in September 2017, when bespoke community accommodation was provided. The appeal concerned a 12-month renewal order made in September 2016, as well as broader challenges to the review safeguards in the 2001 Act.
The High Court had held that Mr B. lacked standing to bring the constitutional challenge, but declared Part 2 of the Act incompatible with Article 5(4) of the European Convention on Human Rights because patients under 12-month orders had no entitlement to initiate a review after using their appeal rights. The State respondents appealed that declaration; Mr B. cross-appealed the standing decision.
The Court of Appeal held that Mr B. did have standing. It then considered the constitutional issue itself, although the High Court had not decided its merits. The court concluded that section 28, which requires a responsible consultant psychiatrist to revoke an order if the patient is no longer suffering from a mental disorder, did not provide an independent review that the patient could require. It also held that an application under Article 40.4.2 of the Constitution could not determine the medical merits of detention under the 2001 Act.
The court said that, after a tribunal decision and any appeal to the Circuit Court, a patient under a six- or 12-month renewal order could recover before the order expired without having an effective means of securing an independent review. It found that this failed to protect the constitutional right to liberty under Article 40.4.1, read with Articles 40.3.1 and 40.3.2. The ruling concerned the lack of a timely review safeguard, rather than the duration of renewal orders by itself.
The court said immediate invalidation could affect the legal basis for detention of many patients and risk serious disruption. It therefore suspended the declaration for six months and said new legislation was needed to address the defect. Having decided the constitutional issue, it said it was unnecessary to determine the alternative European Convention arguments. The judgment concluded by proposing to hear counsel on the terms of the final order.