TW v Enfield Borough Council  EWCA Civ 362,  MHLO 26
The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning 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."
This claim was subsequently settled for £27,000. Thanks to Helen Curtis of Garden Court Chambers and Michael Paget of Cornerstone Chambers for providing this information (emails 9/6/16 and 10/6/16).
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
MENTAL DISORDER — Admission for treatment — Compulsory detention — Application for compulsory admission without consulting with nearest relative — Claimant admitted and detained in hospital — Claimant applying for permission to being proceedings for unlawful detention — Judge refusing leave on basis not reasonably practicable to consult nearest relative — Ambit of “reasonably practicable” — Whether statutory obligation when considering whether “reasonably practicable” also to balance patient’s Convention rights — Mental Health Act 1983, s 11(4) — Human Rights Act 1998, Sch 1, Pt I, arts 5, 8
TW v Enfield London Borough Council
B;  WLR (D) 145
CA: Arden, Aikens, Christopher Clarke LJJ: 27 March 2014
When an approved social worker was considering whether it was “reasonably practicable” to consult the “nearest relative” before making an application to admit a patient, pursuant to sections 3(1) and 13(1) of the Mental Health Act 1983, section 11(4) of the Act imposed on that social worker an obligation to strike a balance between the patient’s right under article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms not to be detained unless it was done by a procedure that was in accordance with the law and the patient’s right to a private life under article 8.
The Court of Appeal so stated when allowing an appeal by the claimant, TW, against a decision of Bean J of 8 May 2013  EWHC 1190 (QB)Not on Bailii!;  CN 703 refusing TW’s application for the court’s leave, pursuant to section 139(2) of the Mental Health Act 1983, to bring a claim for damages for unlawful detention and psychiatric injury against the defendant council.
In 2007 an employee of the council applied under section 13(1) of the 1983 Act for TW’s compulsory admission to hospital. Under the version of the 1983 Act then in force the employee was obliged, pursuant to sections 13(5) and 11(4) to consult TW’s father, being her “nearest relative”, before making the application. TW’s father was not consulted as the employee had decided that, under section 11(4) of the 1983 Act, such consultation was “not reasonably practicable” because of, inter alia, various allegations made by TW against her father and as previously she had demanded complete patient confidentiality. As a result of the application TW was forcibly removed from her property and detained in hospital for 77 days. TW sought the leave of the court, under section 139(2) of the 1983 Act, to bring a claim for damages against the council on the basis that she had been admitted and detained without regard to the proper procedures under sections 11(4) and 13(1) of the 1983 Act as the application for admission was made without her nearest relative being consulted and had he been so consulted he would have refused to permit the admission. The judge dismissed the application, holding that it had not been “reasonably practicable” within section 11(4) for the council to consult TW’s father before the section 13(1) application was made because to do so would have constituted an action by a public body that would have infringed the claimant’s right to private life pursuant to article 8.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and therefore the employee had been entitled to make the application to have TW involuntarily admitted to hospital without consulting her nearest relative and any claim against the council for unlawful detention was bound to fail.
AIKENS LJ said that the word “practicable” in section 11(4) of the 1983 Act meant more than whether it was physically possible to consult the nearest relative and that in considering what was reasonably practicable for the purposes of the section it was legitimate to look at what might be the result of the proposed action in order to determine whether that action was reasonably practicable. There was also the Human Rights Act 1998 aspect of the construction of section 11(4), section 3(1) of which required that the obligation imposed by section 11(4) of the 1983 Act to consult the nearest relative before making a section 13(1) application and the exception created by the wording “unless it appears to that social worker that in the circumstances such consultation was not reasonably practicable or would involve unreasonable delay” should be construed in a way which was compatible with the Convention rights of the person affected. Where an approved social worker’s statutory obligation to consult the nearest relative under section 11(4) of the 1983 Act would constitute an interference with a patient’s article 8.1 rights to a private life, the decision of the social worker on whether it was reasonably practicable to consult the nearest relative would depend on whether that was justified and proportionate to do so in the particular circumstances of the case. For the purposes of section 11(4), 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 could not lead automatically to the conclusion that it was not reasonably practicable to consult the nearest relative. Nor would the social worker’s conclusion that such consultation would lead to an infringement of the patient’s article 8.1 rights be enough to lead to the decision that there should be no consultation under section 11(4) of the 1983 Act. Equally it would be wrong for the social worker to conclude that because consultation with the nearest relative would require disclosure of details of the patient’s case which would constitute an interference with her article 8.1 rights that should necessarily lead to the conclusion that it was not reasonably practicable to consult the nearest relative. The analysis of the judge in R (E) v Bristol City CouncilM on the construction of section 11(4) by reference to the patient’s article 8 rights was incomplete and should not be followed. Further, paragraphs 4.60 and 4.61 of the Mental Health Act 1983 Code of Practice were incomplete as both failed to refer either to the patient’s article 5 right or to the qualification to the patient’s article 8.1 right.
ARDEN and CHRISTOPHER CLARKE LJJ agreed.
Appearances: Michael Paget and Helen Curtis (instructed by DH Law Ltd) for the claimant; Amanda Weston (instructed by Solicitor, Enfield London Borough Council) for the council.
Reported by: Nicola Berridge, Solicitor.
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