Modaresi, R (on the application of) v Secretary of State for Health & Ors

Modaresi, R (on the application of) v Secretary of State for Health & Ors

The appellant's application to the Tribunal was in time because the 14-day period expired on a non-working day and, following Mucelli, the application was valid if received on the next working day. The Tribunal erred in rejecting the application as out of time. The Secretary of State's refusal to refer the case under section 67 was not unlawful or a breach of Article 5(4) ECHR, as the appellant retained the right to apply to the Tribunal under section 3 detention. The Trust was not at fault as the application was ultimately forwarded in time and any failure was an isolated incident.

Parties
Appellant: Elham Modaresi aka Elham Chogani; First Respondent: Secretary of State for Health; Second Respondent: Mental Health Review Tribunal (First-tier Tribunal); Third Respondent: West London Mental Health NHS Trust
Jurisdiction
England and Wales
Judgment Date
23 November 2011
Procedural Posture
Judicial Review / Appeal From High Court to Court of Appeal
Outcome
Appeal allowed in part, dismissed in part
Legal Topics
Time Limits for Tribunal Applications, Article 5(4) ECHR, Judicial Review of Administrative Decisions, Tribunal Procedure, Discretionary Powers of Secretary of State
Mental Health Law Administrative Law Human Rights Law Time Limits for Tribunal Applications Article 5(4) ECHR Judicial Review of Administrative Decisions Tribunal Procedure Discretionary Powers of Secretary of State

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Parties

Elham Modaresi aka Elham Chogani

Appellant

Secretary of State for Health

First Respondent

Mental Health Review Tribunal (First-tier Tribunal)

Second Respondent

West London Mental Health NHS Trust

Third Respondent

Procedural Posture

Judicial Review / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether the appellant's application to the Tribunal was in time under section 66 of the Mental Health Act 1983
  2. 2 Whether the Tribunal erred in rejecting the application as out of time
  3. 3 Whether the Secretary of State's refusal to refer the case under section 67 was unlawful or breached Article 5(4) ECHR

Ratio Decidendi

The appellant's application to the Tribunal was in time because the 14-day period expired on a non-working day and, following Mucelli, the application was valid if received on the next working day. The Tribunal erred in rejecting the application as out of time. The Secretary of State's refusal to refer the case under section 67 was not unlawful or a breach of Article 5(4) ECHR, as the appellant retained the right to apply to the Tribunal under section 3 detention. The Trust was not at fault as the application was ultimately forwarded in time and any failure was an isolated incident.

Court Disposition

Appeal allowed in part, dismissed in part

Orders

  • Appeal allowed against the Tribunal; the application was in time and should have been accepted.
  • Appeal dismissed against the Secretary of State; his decision was not unlawful and did not breach Article 5(4) ECHR.