19.103Kolanis v United Kingdom Application no 517/02, (2006) 9 CCLR 297
It was lawful to continue to detain a patient who suffered from a mental disorder warranting treatment in hospital and detention even though the patient could be discharged if services were available in the community if such services were not available; however, there would be a breach of Article 5(4) ECHR unless there continued to be regular court review
Facts: K, a restricted patient, was directed to be discharged conditionally, inter alia, on psychiatric supervision in the community, but the tribunal deferred the discharge. K’s RMO was unable to find a doctor in the community prepared to supervise her and K’s judicial review of that failure was dismissed. K remained in detention though meanwhile her case was referred back to the MHRT.
Judgment: the European Court of Human Rights held that K’s detention continued to be lawful under Article 5(1) ECHR (as the MHRT had adjudged her discharge to be appropriate only if appropriate provision could be made in the community), but that the delay of over a year in referring her case back to the MHRT had been incompatible with Article 5(4)(in that new issues relating to the lawfulness of K’s detention had arisen on account of the failure to make community provision for her) and K was entitled to compensation, assessed at £6,000.00, for the loss of her opportunity to be released and frustration.