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R (on the application of MH) v Secretary of State for the Department of Health [2004] EWCA Civ 1690

Human rights - Declarations of incompatibility - Detention - Lawfulness of detention - Mental health review tribunals - Mental patients rights - Right to liberty and security - Compatibility of s 2 and s 29(4) Mental Health Act 1983 with Art 5 European Convention on Human Rights 1950 - Mental Health Act 1983 - European Convention on Human Rights 1950, Art 5 - Mental Health Act 1983, s 23 - Mental Health Act 1983, s 25 - Mental Health Act 1983, s 29 - Mental Health Act 1983, s 2 - European Convention on Human Rights 1950, Protocol 13 Art 5

10 December 2004

The appellant (M) appealed against a decision that her detention under the Mental Health Act 1983 was not incompatible with the European Convention on Human Rights 1950, Art 5. M had been detained under s 2 of the 1983 Act. M's nearest relative had sought a discharge under s 23 but had been barred under s 25 of the Act. Just before M's s 2 order was due to expire, a s 29 application had been made to displace M's nearest relative and M had therefore remained subject to detention under the s 2 order well beyond the normal period of 28 days. M complained that her disability was sufficiently serious for her to have been unable either to make an application to a mental health review tribunal herself against the s 2 order or to authorise others to make an application on her behalf. ISSUE (1) Whether Art 5.4 required there to be an automatic review of the lawfulness of a patient's detention under the 1983 Act where the patient lacked the capacity to make her own application for a review....

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