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 Appeal Court
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 [2013] 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 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.”
At this point it looked as if the decision of the ASW had been
upheld. However, the recent Court of Appeal Judgment ([2014] EWCA Civ 362;
[2014] 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”.
Enfield settled for £27000 out of court: http://www.mentalhealthlaw.co.uk/TW_v_Enfield_Borough_Council_(2014)_EWCA_Civ_362,_(2014)_MHLO_26
ReplyDeleteOverturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] 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 [AMHP] 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."