Abstract
R (on the application of KB and others) v (1) Mental Health Review Tribunal (2) Secretary of<br />State for Health [2002] EWHC 639 (Admin)<br />Administrative Court (23rd April 2002) Stanley Burnton J.
Highlights
Numerous legal commentators have noted the tension between current mental health legislation and the Human Rights Act 1998, contending that a modest review across the provisions of the Mental Health Act 1983 (‘the Act’) suggests the potential for numerous challenges[1]
In the light of recent decisions, which have exposed the susceptibility of mental health legislation, it is hard to disagree
This Administrative Court decision exemplifies the positive approach that domestic courts have adopted in this area of law, and closely follows the jurisprudence of the European Court of Human Rights (‘European Court’) in its assertion that the vulnerability of patients compulsorily detained calls for “increased vigilance in reviewing whether the Convention has been complied with”
Summary
Numerous legal commentators have noted the tension between current mental health legislation and the Human Rights Act 1998, contending that a modest review across the provisions of the Mental Health Act 1983 (‘the Act’) suggests the potential for numerous challenges[1]. In R (On the Application of KB and Others) v Mental Health Review Tribunal[3] Stanley Burnton J ruled that the State has breached the fundamental rights of such patients in failing to take effective steps to provide speedy reviews as to the lawfulness of their detention. This case note will examine the content of the judgment and the future implications of this decision, having regard to the fact that such delays are commonplace and of concern, are increasing through an established shortage of medical tribunal members[4]. The most effective option is to challenge the legality of their detention by reference to Article 5(4) ECHR, which gives the detained patient the right to have the lawfulness of his or her detention decided speedily by a court[22]
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