When is it “not reasonably practicable” to consult the Nearest Relative? Some recent Case Law

Police discreetly executing a Sec.135 Warrant

A very recent (8th May 2013) High Court Case, TW v London Borough of Enfield and Another [2013] EWHC 1180 (QB) was asked to consider whether or not there was a case that Sec.139 was incompatible with the Human Rights Act.

 

As all AMHP’s will know, Sec.139 Mental Health Act 1983 exempts AMHP’s and others who are doing “any act purporting to be done in pursuance of this Act” from civil or criminal proceedings “unless the act was done in bad faith or without reasonable care”.

 

While at first glance this appears to be of interest primarily to lawyers, in fact the case hinges on the legality of a patient’s detention under Sec.3, and whether or not the ASW (the actual incident took place prior to the introduction of AMHP’s in 2008) acted unlawfully by not consulting with the patient’s Nearest Relative.

 

The bare bones of the case are as follows.

 

On 29^th June 2007 an ASW, 2 doctors and police executed a Sec.135 warrant and entered the property of TW. TW was then detained under Sec.3 MHA for treatment from her home and admitted to hospital. She remained subject to Sec.3 until she was discharged by a Tribunal on 14^th September 2007.

 

TW’s case was that, as her Nearest Relative was not consulted in accordance with the requirements of Sec.11(4), then the application was illegal and that the LA and the ASW had “acted in bad faith or at least with a lack of reasonable care.” She therefore wished to sue the MH Trust, the Local Authority and the ASW.

 

In fact, there is a considerable amount of information in the Judgment relating to the psychiatric history and the behaviour of TW. She had a formal diagnosis of OCD, and had had inpatient treatment in a psychiatric hospital in the past.

 

There were letters written by TW and other statements that she had made in regarding her relationship with her parents. Her father was the Nearest Relative. One of the letters to her psychiatrist stated: “"my Mum and Dad called the police and my Dad threatened to hit me and my Mum ran next door to a neighbour's house. I was outside when the police came. My Mum and Dad tried to section me through the police who tried to smash the car window and get me out but I was able to stay in the car and drive away fast. … There are to be no meetings with my family." She subsequently left a message stating that no information should be given to her parents.

 

In another letter she stated: “My Dad threatened to smash my face in once again on the phone on my birthday and my Mum was making it worse”. This letter went on to say that “I would like my Mum to be taken off as my next of kin and my Dad off as the nearest relative." She suggested that she would like another person to act as her NR.

 

The Sec.135 and subsequent Sec.3 were triggered by a number of incidents prior to 29th June 2007. It was reported that TW “had hit a neighbour on 17th June 2007. She had been taking the rubbish out of the neighbour's dustbins into her flat. She had been unwilling to engage with support services or to allow them access to her flat. The flat was filled with rubbish and posed a risk to her and others because of the fire hazard.”

 

The Judgment records both the patient’s account of her assessment and detention, and the ASW’s account. They differ markedly from each other.

 

TW stated: "29th June 2007 was the day I was sectioned. More than nine people, including three police officers, doctors [and] officers from Environmental Health to section me. I was upstairs about to wash my hair and therefore when they knocked on the door I did not come to the door straightaway. They smashed my door in and humiliated me in front of all my neighbours. I was extremely frightened and felt totally helpless. As I did not recognise anyone in particular I shouted out aloud to them to call my parents. They must have heard me but simply ignored my requests."

 

It was reported that, according to the ASW, TW “spoke to the assessing team through her window but continued to refuse to open the door. The police then had no alternative but to execute the warrant to enter the property. The Applicant came downstairs shouting that she did not want anyone to come into her property, but then allowed Dr Duignan and Ms Muschett [the ASW] in.”

 

In considering whether or not to consult the Nearest Relative, the ASW clearly considered the case law of R(E) v Bristol City Council (2005). In this particular case, “the patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to become involved.” In that case, the Judge concluded that “"practicable" and "reasonably practicable" can be interpreted to include taking account of the Applicant's wishes and/or her health and well-being."

 

This Judgment is frequently considered by AMHP’s when deciding whether or not to consult with the NR, and evidence that an AMHP has thought about this is often sought in AMHP’s MHA Assessment Reports.

 

It appears that TW wanted things both ways. She wanted mental health services to respect her wishes that they not give any information to her parents, and gave testimony that the relationship with her parents had irretrievably broken down. At the same time, however, she wanted to sue the same authorities for not consulting with them.

 

The Judge stated that TW “had repeatedly, in dictated letters, instructed Enfield's staff not to involve her family. She had gone so far as to refer to having obtained solicitors' advice about breaches of patient confidentiality. These were not deluded ravings, and Ms Muschett and her colleagues were right to treat them seriously.”

 

He concluded that: “The evidence of Enfield's witnesses is that they considered that involving TW's father on 29 June 2007 would be likely to cause her distress and emotional upset... The test on this issue is a subjective one, and a matter of professional judgment.”

 

The Judge went on to say “it is clear that it was "not reasonably practicable", within the meaning of Sec.11(4) of the Mental Health Act 1983, for Enfield to have consulted TW's father before applying for her admission for treatment on 29 June 2007; and that the claim against Enfield is therefore bound to fail.”

 

This is further reinforcement of the AMHP’s duty to consider very carefully the implications of consultation with the Nearest Relative when making an application under Sec.3, and not to be afraid to take into account the wishes of the patient in relation to consultation with the NR, and therefore to make a decision not to consult where the evidence indicates that harm or distress may be incurred by the patient.