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 European Court of Human Rights held that H’s detention had been unlawful during its initial period in that, although had been entitled in principle to apply to the MHRT for discharge, she had lacked the capacity to do so and no special safeguards had been made available to ensure that this right was made practical and effective in such cases. However, after H’s detention had been automatically extended, the Secretary of State had secured a MHRT hearing within a month, which was not unreasonable: the exercise by the Secretary of State of the power of referring cases to the MHRT was capable of removing any potential incompatibility with the ECHR, in the legislation.

Comment: The government has responded by amending MHA 1983 to introduce independent mental health advocates (at sections 130A–130L) and making further provision in the Mental Health Act 1983: Code of Practice.