This case has been meandering through the courts since 2007. It looked as if it had finally been settled in May 2013, but leave to appeal was allowed, and the
finally gave its judgment in March 2014. It’s an important case for AMHP’s as
it gives an interpretation of the term “reasonably practicable” when consulting
with nearest relatives in connection with applications under Sec.3.
To recap: Judge Bean heard this case in 2013 (TW v London Borough of Enfield and Another  EWHC 1180 (QB)).
The bare bones of the case were as follows.
On 29th 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 14th 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
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.” Enfield
He concluded that: “The evidence of
'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.” Enfield
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.”
At this point it looked as if the decision of the ASW had been upheld. However, the recent Court of Appeal Judgment ( EWCA Civ 362;  WLR (D) 145) has taken a different view.
Lord Justice Aikens considered the implications of the Human rights Act when applied to the MHA. He stated: “The obligation to consult the "nearest relative" may result in a conflict between two of the patient's Convention rights, because section 11(4) in general and the words "not reasonably practicable" have to be construed in a way that is compatible not only with the patient's Article 5 rights but also in a way that is compatible with the patient's Article 8 right of respect for her private life and her "correspondence". A mental patient's right to maintain the confidentiality of her medical history and file and all the circumstances of her medical case must be a part of her Article 8 right to a private life.”
The Judge concluded: “when an ASW is considering whether it is "reasonably practicable" to consult the "nearest relative" before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the ASW an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life.”
The Judge continued: “a patient's assertion, even if founded on fact and even if reasonable, that consultation would lead to an infringement of her Article 8(1) rights cannot, as a matter of law, lead automatically to the conclusion that it is "not reasonably practicable" to consult the "nearest relative". Nor is an ASW's conclusion that such consultation would lead to an infringement of the patient's Article 8(1) rights enough, in law, to lead to the decision that there should be no such consultation under section 114). Equally, as a matter of construction of section 11(4), it must be wrong in law for the ASW to conclude that because consultation with TW's "nearest relative" would require disclosure of details of TW's case and that would therefore constitute an interference with TW's Article 8(1) rights, that must necessarily lead to the conclusion that it was "not reasonably practicable" to consult the "nearest relative".”
The Judge’s final conclusion was: “In my view, on what is known of the reason for the ASW's decision not to consult, there is obviously an arguable case that the decision was not made on the right basis. Whether the decision not to consult was, in all the circumstances, correct, must ultimately depend upon a careful analysis of the facts. In my view that is not something that can be determined summarily in this case.”
So what does this mean?
It seems to me that the Judge, while allowing the appeal, and stating that there were errors in law in the previous judgment, in failing to properly consider the implications of the Human Rights Act, does not actually reach a definitive conclusion as to whether or not the ASW was wrong to conclude that consultation with the NR was “not reasonably practicable” in this particular case.
It appears that this matter will still need to be considered in a future application by TW to bring a claim for unlawful detention and psychiatric injury under Sec.139 MHA.
As a reminder, Sec.139 MHA provides protection for professionals taking actions in pursuance of the MHA. Sec.139(2) states that civil proceedings cannot be taken without leave of the High Court. This hearing gave such leave. However, Sec.139(1) prevents action being taken unless it can be shown that, in this case, the ASW acted “in bad faith or without reasonable care.” A future court will still have to decide this.
I’m not sure whether this ruling clarifies circumstances in which it is “impracticable to consult” or simply makes the AMHP’s job even more complex and onerous. After all, AMHP’s are not in the position of a lawyer, who is able to spend days or weeks reading the relevant case law before making a decision. AMHP’s are frequently having to make such decisions under situations of extreme stress and where delay may lead to endangering the safety or lives of not just the patient, but of other professionals, relatives and members of the public.
What this case does reinforce is the need for an AMHP to think long and carefully, and to weigh up not just the legal requirements of the MHA, but also the potential conflicts of consultation with the Human Right Act. And it’s very important for any AMHP to record in detail their decisions where they conclude that it has been “impracticable to consult”.