From Mental Health Law Online
The nearest relative's statement to the AMHP that he disagreed with detention under s3 was sufficient to amount to the notification of an objection under s11; it was unaffected, in the absence of any clear evidence of a change of mind, by the failure to state an objection in a subsequent conversation immediately prior to the making of the application.
The Claimant ("C") was a 25 year old East European man detained at Homerton Hospital, London under s3 of the Mental Health Act 1983 ("the Act"). His nearest relative under s26 of the Act was his elder brother, ("NR").
C applied for a writ of habeas corpus ad subjiciendum against the hospital managers claiming that his detention from 30/1/09 was unlawful because his nearest relative, NR, had objected to the making of the application for treatment.
Proceedings were commenced on 4/2/09, a Consent Order for Directions agreed on 5/2/09, and the matter came on for a final hearing on 10/2/09.
The application for C’s detention under s3 of the Act was made against the background of his discharge by C the previous week which the Responsible Clinician, in error, had failed to bar under s25(1) of the Act. On the same day, however, clinicians had agreed that C was “not sectionable” and this was also confirmed the following day by the hospital’s clinical director. C was happy to remain informally at the hospital, because he was living rough, and a “discharge CPA” was then called for 29/1/09.
On the morning of 30/1/09, C was reassessed under the Act. As part of that process, the approved mental health professional (AMHP) contacted NR. The judge found, and it was accepted by Counsel for the Interested Party (London Borough of Hackney), that during a phone conversation between them at about 10.30 am C’s remark that he “disagreed” with the detention of his brother under section 3 of the Act amounted to the notification of an objection under s11(4)(a) of the Act; the AMHP must have “reasonably believed” (in the objective sense) that to be the case. The judge rejected the suggestion by the AMHP that the failure of C to notify any objection during a subsequent conversation between them at 2pm, shortly before the making of the application at 3.15 pm, meant that an objection had not been notified for the purposes of s11(4)(a). The Act does not specify precisely when an objection must be notified and the earlier objection, and the lack of any clear evidence of a change of mind in the later conversation, was sufficient. Re Whitbread (No 1) (Habeas Corpus: Compulsory Admission) (1997) EWCA Civ 1944 considered.
After a two-day hearing, in granting a writ of habeas corpus on 11/2/09 the judge was not invited to stay the writ and gave an order that it be issued immediately, but declined an invitation to deal with the damages claim. Burton J also agreed to sit as a County Court judge in the s29 Nearest Relative displacement proceedings that the Interested Party indicated it would commence, listed for hearing two days later, but these were subsequently withdrawn.
M v (1) East London NHS Foundation Trust (2) London Borough of Hackney (Interested Party) CO/1065/2009.
Before: Burton J
10-11 February 2009
Counsel for the Claimant: Laura Davidson, instructed by Steel & Shamash.
Counsel for the Defendant: Sydney Chawatama, instructed by Capsticks.
Counsel for the Interested Party: Alex Ruck Keene, instructed by the London Borough of Hackney.
Solicitor for the Nearest Relative in the Displacement Proceedings: Rheian Davies of D H Law Solicitors.
TTM v LB Hackney (2011) EWCA Civ 4 - Court of Appeal
- TTM v LB Hackney (2010) EWHC 1349 (Admin) - judicial review
- M v East London NHS Foundation Trust CO/1065/2009 - habeas corpus
No Bailii link.