Time for rethink on mental health

A ruling that questioned the delays in hearing challenges to the health review system may spark a deluge of claims for damages, says David Leckie

When the Human Rights Act 1998 came into full effect across the UK on 2 October 2000, speculation ran rife that the legislation would lead to a 'tidal wave' of challenges.

This flood has not materialised to the extent envisaged by the more alarmist forecasters.

However, the way the European Convention on Human Rights must be interpreted by courts and tribunals has meant that many cases, covering a wide range of fields of law, have human rights implications which require careful consideration.

The impact of the Act can be seen from recent cases concerning well-publicised issues such as the privacy of supermodel Naomi Campbell, the right of police officers to strike, and the conduct of coroners' inquests.

Delay in the legal system has been subjected to considerable analysis, both in convention jurisprudence and by courts and tribunals in the UK.

As Lord Bingham stated in Dyer v Watson [2002] SLT 229, 'contracting states cannot blame unacceptable delays on a general want of prosecutors or judges or courthouses or on chronic underfunding of the legal system'.

The Privy Council went on to hold that a delay by the Crown of 20 months from charge to trial in one criminal case did not infringe the right to a fair trial within a reasonable time, guaranteed by article 6, while a delay of 28 months in another case involving a juvenile defendant did infringe the article.

The positive obligation on the government to ensure that the legal system functions without unjustifiable delays was considered in the case of R ex parte KB and others v the Mental Health Review Tribunal and the Secretary of State for Health, where the High Court held on 23 April 2002 that the claimants' rights under article 5.4 of the convention had been breached (see [2002] Gazette, 25 April, 3).

Article 5.4 provides that persons who are detained can take proceedings to challenge the lawfulness of such detention and that such challenges must be dealt with 'speedily'.

The claimants were all patients who had been detained under the Mental Health Act 1983.All had applied for a review of their detention to the Mental Health Review Tribunal and in each case there was a significant delay in hearing the applications, ranging from nine weeks to 27 weeks from the date of the application.

The main reason for these delays was cancelled hearings caused by a shortage of medical tribunal members and administrative staff.

The evidence revealed a widespread problem of delay throughout the mental health review system, where applications had increased by 270% in 10 years.

Mr Justice Stanley Burnton observed that it should be practicable to bring such cases within eight weeks of application and ruled that article 5.4 had been infringed.

Although it is not yet clear whether there will be an appeal against this decision, the implications for the mental health review system are far-reaching.

As the average waiting times are significantly greater in many parts of the UK than the eight weeks which Mr Justice Stanley Burnton regards as 'practicable', the result of this decision is that government ministers can expect to face thousands of claims for damages from patients who are detained in similar circumstances.

And while the Lord Chancellor's Department has announced that it is taking urgent action to recruit Mental Health Review Tribunal members, this will take time - and may well be too little, too late.

David Leckie is a partner in the London office of Maclay Murray & Spens and co-author of The Human Rights Act 1998 Explained