Facts: H had been detained under section 2 of the MHA 1983 and an application was made to displace her mother, who objected to H being received into guardianship, as H’s nearest relative. The displacement proceedings dragged on and as a result H was detained under section 2 well beyond the usual 28 days. The Court of Appeal held that sections 2 and 29(4) of the MHA 1983 were incompatible with Article 5(4) ECHR insofar as they made no provision for a patient’s detention to be reviewed in circumstances where the patient was incapable of exercising the right of review and their detention was extended because of nearest relative displacement proceedings.

Judgment: the House of Lords (Lords Bingham Hope, Rodger, Lady Hale and Lord Brown) allowed the Secretary of State’s appeal, on the basis that the scheme could be operated consistently with Article 5(4), in particular by the Secretary of State exercising his power to refer cases to the MHRT.

Comment: H’s complaint to the European Court of Human Rights was upheld, in MH v United Kingdom (below at para 19.48).