CO/5733/2008 
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
ADMINISTRATIVE COURT
IN THE MATTER OF AN APPLICATION FOR A WRIT
OF HABEUS CORPUS AD SUBJICIENDUM 
Royal Courts of Justice 
Strand
London WC2 

Friday, 27th June 2008
 
B E F O R E:

MR JUSTICE BURNETT 

‑ ‑ ‑ ‑ ‑ ‑ ‑
 
G D
Claimant

‑v‑ 

(1) THE HOSPITAL MANAGERS OF THE EDGWARE COMMUNITY HOSPITAL
(2) LONDON BOROUGH OF BARNET 
Defendants 
 
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Mr Stephen Simblet (Mr York appeared for the purposes of judgment only) (instructed by Messrs RH Campbell Taylor Solicitors, London N16 8JN) appeared on behalf of the Claimant 
 
Ms Amy Street (instructed by Messrs Bevan Brittan LLP, London EC4M 7RF) appeared on behalf of the Defendants 
 
J U D G M E N T 
(As approved by the Court) 
 
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MR JUSTICE BURNETT:  Two days ago I heard argument in this application for a writ of habeas corpus.  At the end of the argument I gave my decision, namely that the application was allowed.  Unfortunately, a shortage of court time did not allow me to give my reasons then and I indicated that I would do so this morning.
By these proceedings the claimant challenged his detention for treatment on 14th June 2008 under section 3 of the Mental Health Act 1983 at the Dennis Scott Unit at Edgware Community Hospital.  Mr Simblet, who appeared on behalf of the claimant, submitted that the detention was unlawful for two reasons: first, that the social worker who made the application for treatment failed to consult GD's father, who was his nearest relative for the purposes of the Mental Health Act 1983; secondly, that in a conversation before that application was completed, GD's father had objected to his admission to hospital.  The obligation to consult and the power of the nearest relative to object are both found in section 11 of the Act.  I should notice that as the first submission developed by reference to the evidence, it became a submission to the effect that the social worker had in fact set out not to engage in proper consultation at all.
The relevant provisions of the Act are as follows.  Section 3:

"3(1)  A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as 'an application for admission for treatment') made in accordance with this section.

(2) An application for admission for treatment may be made in respect of a patient on the grounds that—

(a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and

(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.

(3)  An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—

(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (b) of that subsection; and

(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate."
 
Section 6 is concerned with the effect of an application for admission, and its material provisions are as follows:

"6.(1)   An application for the admission of a patient to a hospital under this Part of this Act, duly completed in accordance with the provisions of this Part of this Act, shall be sufficient authority for the applicant, or any person authorised by the applicant, to take the patient and convey him to the hospital at any time within the following period, that is to say—

(a) in the case of an application other than an emergency application, the period of 14 days beginning with the date on which the patient was last examined by a registered medical practitioner before giving a medical recommendation for the purposes of the application;

(b) in the case of an emergency application, the period of 24 hours beginning at the time when the patient was examined by the practitioner giving the medical recommendation which is referred to in section 4(3) above, or at the time when the application is made, whichever is the earlier.

(2)  Where a patient is admitted within the said period to the hospital specified in such an application as is mentioned in subsection (1) above, or, being within that hospital, is treated by virtue of section 5 above as if he had been so admitted, the application shall be sufficient authority for the managers to detain the patient in the hospital in accordance with the provisions of this Act.

(3)  Any application for the admission of a patient under this Part of this Act which appears to be duly made and to be founded on the necessary medical recommendations may be acted upon without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given or of any matter of fact or opinion stated in it.

(4)  Where a patient is admitted to a hospital in pursuance of an application for admission for treatment, any previous application under this part of this Act by virtue of which he was liable to be detained in a hospital or subject to guardianship shall cease to have effect."

The final statutory provision to which I refer and which is central to this application is section 11:

"11.(1)  Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment and a guardianship application may be made either by the nearest relative of the patient or by an approved social worker; and every such application shall specify the qualification of the applicant to make the application.

(2)  Every application for admission shall be addressed to the managers of the hospital to which admission is sought and every guardianship application shall be forwarded to the local social services authority named in the application as guardian, or, as the case may be, to the local social services authority for the area in which the person so named resides.

(3) Before or within a reasonable time after an application for the admission of a patient for assessment is made by an approved social worker, that social worker shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the application is to be or has been made and of the power of the nearest relative under section 23(2)(a) below.

(4) Neither an application for admission for treatment nor a guardianship application shall be made by an approved social worker if the nearest relative of the patient has notified that social worker, or the local social services authority by whom that social worker is appointed, that he objects to the application being made and, without prejudice to the foregoing provision, no such application shall be made by such a social worker except after consultation with the person (if any) appearing to be the nearest relative of the patient unless it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay.

(5)  None of the applications mentioned in subsection (1) above shall be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending with the date of the application.

(6)  An application for admission for treatment or a guardianship application, and any recommendation given for the purposes of such an application, may describe the patient as suffering from more than one of the following forms of mental disorder, namely mental illness, severe mental impairment, psychopathic disorder or mental impairment; but the application shall be of no effect unless the patient is described in each of the recommendations as suffering from the same form of mental disorder, whether or not he is also described in either of those recommendations as suffering from another form.

(7)  Each of the applications mentioned in subsection (1) above shall be sufficient if the recommendations on which it is founded are given either as separate recommendations, each signed by a registered medical practitioner, or as a joint recommendation signed by two such practitioners."

The approved social worker concerned was Mr Kevin Scheuring.  Whilst acknowledging that he did have a telephone conversation with GD's father on 14th June 2008, his recollection was that no objection was forthcoming.  Additionally, he suggested that if there was an objection it came too late because he had completed the relevant forms.  So far as consultation is concerned, his evidence was that it was not reasonably practicable or would have involved unreasonable delay to consult GD's father before making the application for treatment, or at least so it appeared to him.

Background 
GD is a 29‑year‑old man who suffers from schizophrenia.  His psychiatric symptoms first presented when he was 15.  He has since had a long history of repeated hospitalisation, together with serious relapses.  The opinion of those who have treated him and have been responsible for his care in the community is that he lacks insight into his illness.  He is a highly intelligent man, something evidenced by his ability to pursue high‑powered academic courses when he is well.  However, he appears only to be well when taking relevant psychiatric medication, but does not remain well for long when he stops.
GD has been detained under the Mental Health Act on a number of occasions.  There is some history of violence towards police officers during Mental Health Act assessments.  There have also been incidents of attacks on public service workers and he has absconded, or so at least says the paperwork that has been produced by the defendants.
GD's father is his nearest relative for the purposes of section 26 of the Mental Health Act 1983.  He takes the view, and does so very strongly, that his son should be treated with natural remedies.  It is clear from the evidence that I have heard and also that I have in writing that there have been very serious disagreements between the mental health professionals responsible for the care of GD and his father.  Those disagreements have on occasion been extremely highly charged and emotional.
The last occasion on which GD was in the Dennis Scott Unit was in February 2008.  Following discharge, he eventually returned to live at his parents' house in north London.  Following his discharge in February 2008, GD was initially under supervision.  There were difficulties in persuading him to take his medication.  His mental condition appeared to deteriorate.  GD's mother became increasingly concerned about his condition.  She reported that she had heard GD screaming at neighbours in the middle of the night.  GD himself thought that neighbours were making a noise, but that was not in fact so.
The Community Psychiatric Nurse with regular contact with GD was Anne Tidswell.  She too was becoming extremely concerned about the deterioration in his condition.  On her final visit, before the events with which we are concerned, which had occurred at about 10.00am on the morning of 13th June, she was apparently unable to gain access and could speak to GD only through the letter box.
During the course of the week leading up to that event, Anne Tidswell had been speaking to GD's mother.  She also was concerned about his mental health and was asking for intervention.  The issue was discussed at a team meeting on Thursday, 12th June, and the course which culminated in the events of 14th June was set in motion.
On the morning of 13th June (which was the Friday), Mr Scheuring had discussions with the police in an attempt to arrange their assistance in achieving an assessment under the 1983 Act.  The police insisted that Mr Scheuring should obtain a warrant pursuant to section 135(1) of the 1983 Act, which provides as follows:

"135.(1)  If it appears to a justice of the peace, on information on oath laid by an approved social worker, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder—

(a) has been, or is being, ill‑treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or

(b) being unable to care for himself, is living alone in any such place,

the justice may issue a warrant authorising any constable ... to enter, if need be by force, any premises specified in the warrant in which that person is believed to be, and, if thought fit, to remove him to a place of safety with a view to the making of an application in respect of him under Part II of this Act, or of other arrangements for his treatment or care."

But Mr Scheuring had already obtained a warrant under section 135(1).  The warrant had been granted at 09.45 that morning, that is to say before Anne Tidswell's visit to the family home.  The reason why an earlier decision had clearly been taken to obtain that warrant was that the condition of GD in the days leading up to Friday, 13th June, was such as to cause real concern.  As I have said, he had been the subject of discussion at a meeting attended by both Anne Tidswell and Mr Scheuring the previous day.  It was thus quite clear that a decision to undertake an assessment under the 1983 Act as a preliminary step towards making an application under section 3 was taken at the latest on Thursday, 12th June.
No steps were taken to involve GD's father in the course of that week or on the Thursday.  He was in fact in Wales, undertaking the renovation of a holiday cottage.  It was the view of the professionals assisting GD that the father's involvement would be unhelpful.  Mr Scheuring said this in paragraph 4 of his second statement made for the purposes of these proceedings, dated 25th June 2008:

"4.  I was also mindful of GD's mental health history, particularly that consulting with GD's father too soon prior to the assessment has in the past resulted in GD being taken away by [GD's father] to Wales and on one occasion Ireland.  Dr Annear's report dated 10 December 2007 which has already been filed in these proceedings, refers.  Although GD's father has historically intended to provide care for GD as an alternative to GD being in hospital, he has been, on almost every case ... unable to do so.  Often, the end results have been that GD has been alone and very vulnerable, often far away from his home or any mental health professionals who know him."

One sees in that paragraph the clearest of indications that the question of consultation with GD's father was not actively pursued from the outset because of a fear of the consequences.  In the course of the hearing, I was told that steps are being taken under the Act to displace GD's father as nearest relative.  However, the fact remains that at the time of the events with which we are concerned, he was the nearest relative, invested by the Act with various rights and functions.

Further events on 13th June 
Mr Scheuring's discussions with the police initially resulted in a provisional date of Wednesday, 18th June 2008, at 0700 hours, for the execution of the warrant that had been obtained earlier that morning.  Those responsible for the care of GD thought that intervention on that day was too late.  I observe, nonetheless, that Mr Scheuring in his evidence appeared to be content to assume that he had two more working days, that is to say the Monday and Tuesday of the following week, to make contact with GD's father.
In the result, the police eventually agreed to assist the following morning at 0700 hours, that is to say Saturday, 14th June.  Following that indication, Mr Scheuring arranged for two psychiatrists to attend at GD's home.  It should be noted that the intention all along was to conduct the assessment at GD's home, rather than to convey GD to hospital for the assessment to be carried out, as was in fact contemplated by the warrant issued by the Magistrates' Court.
It was Anne Tidswell who had been in contact with GD's mother earlier in the course of the week.  Mr Scheuring knew that GD's father was the nearest relative for the purposes of the Act.  He knew he had to consult him.  Mr Scheuring made enquiries of Anne Tidswell during the course of the Friday afternoon as to the whereabouts of GD's father.  Anne Tidswell believed him to be on holiday, information which must have come from GD's mother some time earlier.  GD's mother was at work during the course of the Friday and so could not be contacted until 16.30 or later.  She had apparently indicated to Anne Tidswell that she was nervous about any call being made to her home, in case it alerted GD to what was going on and thus created a risk of his absconding.  Nonetheless, Anne Tidswell did speak to GD's mother at home after she returned from work, but the conversation was apparently short and there was no opportunity to obtain the contact details for GD's father.  Mr Scheuring only had the home landline number.  He explains that he searched GD's records for the other contact information, but without success.
It is in all these circumstances that Mr Scheuring decided to obtain the contact details of GD's father during the course of the assessment itself, which was planned for the following morning, Saturday, 14th June.
On that morning at some time after 07.00, two doctors, an ambulance, four police officers and Mr Scheuring all arrived at the family home.  GD's mother let them into the house.  The presence of the police officers was in fact unnecessary because, although the circumstances were obviously difficult, GD was relatively co‑operative, largely at his mother's bidding.  So the officers remained in a different room whilst the doctors and Mr Scheuring and his mother dealt with GD.  She tried to convince GD that it was in his best interests to go to hospital, albeit that it did not appear to those present that he was able to take that in.
Some time after their arrival and after the assessment process had begun, Mr Scheuring asked GD's mother whether he could contact the father.  GD's mother rang his father's mobile phone and handed the telephone to Mr Scheuring.  The time of that call was 07.48.  He left a message on GD's father's mobile phone, which has been transcribed.  In it he said:

"Hi Alan ... It's ...  My name is Alan [Scheuring].  I am an Approved Social Worker with the ... the ... Community Mental Health Team in Barnet and I'm just calling to consult you that ... um ... we're with [GD] right now and doing a mental health act assessment for section three of the mental health act ... um ... he'll be on Avon ward but I'll ring you to let you know um I'm not sure exactly.  Ok?  Alright?  Thank you, bye."

GD's father, as I have said, was in Wales.  He was in a relatively remote spot, where mobile phone coverage is poor.  In his statement dated 17th June 2008 he explained that he got up that morning at about 07.15 and tried to phone his family, but he was unable to get a signal.  A little later he drove some distance from his cottage and picked up a signal at about 8 o'clock.  He listened to the message that had been left at 07.48.  In his statement he explained that he phoned back at about 8 o'clock.  We have call records provided by the mobile phone operator which show that GD's father phoned his home telephone shortly before 08.07 and was connected for a total of 1 minute and 35 seconds.
By this stage, as the evidence unequivocally suggests, all the paperwork in connection with the application for admission to hospital under section 3 had been completed.  Both Mr Scheuring and GD's father have given evidence in writing and orally about what transpired in the course of that conversation.  One thing is clear: the conversation was short because they were cut off as a result of GD's father's mobile running out of credit.  In his written statement the father said that he told Mr Scheuring in no uncertain terms that he did not agree with the plan to admit him to hospital, and went so far as to say words to the effect that the plan was "violent and evil and generally dreadful".  His evidence in his written statement was that Mr Scheuring acknowledged this.
In his oral evidence, the father was very uncertain as to what he said.  He explained to me that he was upset and also very rude.  That was something he regretted and he took the opportunity whilst in the witness box to apologise to Mr Scheuring for that rudeness.  He agreed that the reception at his end was poor.  That is of significance because it was Mr Scheuring's evidence that the line was bad, and that as a result he had some difficulty hearing what was being said by GD's father.  That difficulty, he explained, was compounded by the fact that he was carrying out the conversation in the kitchen at the family home, where there was a good deal of noise and disturbance going on.  Be that as it may, the father was adamant that he had conveyed clearly to Mr Scheuring his objection to his son's admission under section 3.
Mr Scheuring confirmed both in his written statement and orally that GD's father was upset.  He said that words to the effect of "how dare you ..." were used, although he was unable to recall any of the exact words used by the father.  He described listening to what was in effect a monologue, but he says that the father did not object to the proposed course and that he would have remembered had he done so.  He did not recall GD's father using the language of "violent and evil", and he explained that although he had not spoken to GD's father before, others had told him that he might be intemperate and rude on the telephone, but nonetheless not object to the course being proposed.
Mr Scheuring accepted that the question of objection was something that might be gleaned from the totality of what was said, including the way in which it was said, but he was clear in his recollection that the totality did not give him that impression.  He maintained that GD's father was angry and upset, but did not object.
On the morning of 14th June, after GD had been admitted to hospital, Mr Scheuring produced a written summary of the assessment and relevant events.  One part of that summary is headed "Consultation with Nearest Relative and process of identifying Nearest Relative".  In that section he explained that he had left a voicemail and additionally phoned a cottage nearby, the number of which had been given to him by GD's mother, to try to ask them to contact GD's father.  This is then what he said about the short telephone conversation, it should be remembered within only a handful of hours of the events:

"Following the assessment, [GD's father] rang his house where the assessment had taken place.  I was able to speak to him and attempted to inform him of the assessment team's decision.  However [GD's father] was very angry and yelling through the phone.  I then made further attempts to contact [GD's father] from Avon Ward.  Approximately one hour later [GD's father] rang back voicing his anger about [GD] being on a psychiatric ward and stating that he would be coming back home before the 'doctors there made him ill'.  [GD's father] at no time stated that he objected to [GD] being assessed under the [Mental Health Act] 1983."

The extract from which I have quoted goes on to refer to subsequent telephone discussions that are immaterial for the purposes of my decision.  It is also to be observed that GD's father did take advantage of his right to seek GD's discharge, but he was overruled by the responsible medical officer.
It is unsurprising that precise words spoken in the course of the short telephone conversation just after 8 o'clock in the morning of 14th June cannot be recollected by either party to the conversation.  However, I am satisfied that GD's father did not object to the proposal that GD should be admitted for treatment under section 3 of the Act.  The message left at 07.48, albeit short, explained that an assessment was under way and also that he would be admitted under section 3.  The best evidence in my judgment of the effect of the short conversation that followed is that found in the summary of assessment completed by Mr Scheuring within a few hours, from which I have quoted.  I am satisfied that when he wrote that summary Mr Scheuring was giving an accurate and truthful description of the essence of the conversation.
GD was conveyed to the unit.  The relevant paperwork had been completed at his home.  Form 10 contained the joint medical recommendation for admission for treatment, Form 14 contained the record of receipt of medical recommendations for formal admission to the hospital, and Form 9 was the application by an approved social worker for admission for treatment addressed to the managers of the relevant unit.  That was signed and dated by Mr Scheuring on 14th June, and in the course of that form he identified GD's father as the nearest relative within the meaning of the Act and then said:

"... in my opinion it is not reasonably practicable or would involve unreasonable delay to consult that person before making this application."

I should at this stage note a submission made by Ms Street, on behalf of the defendants, which was founded on the proposition that even had GD's father objected, the forms had been filled in and so it was too late.
The application that Mr Scheuring was making, and before he made it contemplating making, was to the managers of the unit at the hospital.  That application is not made until it is given to the hospital staff.  That is clear, in my judgment, from the ordinary use of language and from the language found in the statute, particularly section 6, and the statutory forms to which I have referred.  Although this question does not strictly speaking arise given the factual finding that I have made, I would not have accepted that submission.

Discussion 
This case is concerned with an application for admission for treatment made by an approved social worker, namely Mr Scheuring.  The complaint, as I have said, is that he failed to comply with the mandatory requirements of section 11(4) of the Act.  It is plain, on the authority of In re S‑C (Mental Patient: Habeas Corpus) [1996] 1 QB 599, that a failure to comply with these provisions renders the subsequent detention for treatment unlawful.  Section 11(4) contains two distinct parts.  The first is that if the nearest relative objects to the application for admission for treatment, that application shall not be made.  That is why the question of whether GD's father objected on this occasion is of importance and was explored at length in evidence.
It should be noted, however, that there are other provisions within the Act which enable objections to be overridden in certain circumstances, and also for those responsible for the treatment of somebody considered to be in urgent need of attention to use other mechanisms.
The second requirement is that no such application shall be made, except after consultation with the person appearing to be the nearest relative, unless:

"... it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay."

There is no issue in this case but that GD's father was the nearest relative.  That was known to Mr Scheuring.  I am not therefore concerned with the statutory definition of "nearest relative", nor with a dispute about whether the social worker had identified the correct nearest relative and the basis upon which he did so.  It is to be noted, however, that section 11(4) requires consultation with the person "appearing to be the nearest relative" and it also relieves the social worker of that obligation if "it appears" that consultation is not reasonably practicable and so forth.
It is plain that the language of the subsection is directed towards the subjective knowledge of the social worker concerned.  Indeed, for Parliament to have imposed an objective test in those circumstances would have been unduly oppressive and probably counterproductive.
In what circumstances can the view of the social worker on these matters be challenged?  In Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848, the Court of Appeal was concerned with the issue which arose because the social worker consulted someone who turned out not to be the nearest relative, but who appeared to the social worker to be so.  In paragraphs 15 and 16 of his judgment, Otton LJ dealt with the matter:

"(15)  The question which this court has to consider is not, in deciding whether the application for determination for treatment was validly made, whether Mr JM, the approved social worker, consulted with the person who was legally correct as the 'nearest relative', but whether L appeared to him to be that relative.  That, to my mind, is a correct analysis of s 11(4).  This section and subsection has to be construed strictly.  It involves the liberty or loss of liberty of a person, particularly a person under a mental disorder.  It imposes no duty of reasonable inquiry on Mr JM in relation to deciding who is the nearest relative.  I accept Mr Foster's argument on behalf of the respondent that such an imposition would, in the circumstances in which most decisions have to be made, be an intolerable one.  It is not surprising that Parliament did not impose it.  In support of that contention, he referred to the decision of  Whitbread v Kingston and District NHS Trust (1998) 39 BMLR 94, and in particular a passage at 101‑102.  Accordingly, as I assess the situation, the court cannot and should not inquire into the reasonableness of Mr JM's decision, only into the honesty of his assertion that it appeared that L was the nearest relative.  His honesty has not been impugned.

(16) We have to ask the following question: Was his decision, in concluding that L was the nearest relative, plainly wrong?"

He went on to conclude on the evidence that there was much which made it appear in that case that the person consulted by the social worker was the nearest relative.  The complaint was thus not upheld.
In R (WC) v South London & Maudsley NHS Trust [2001] EWHC Admin 1025, [2001] 1 MHLR 187, Scott Baker J (as he then was) came to a similar conclusion, confirming that the test was a subjective one with which the court would not interfere unless, for example, the social worker had failed to apply the legal test in section 26, which explains who is to be regarded as the nearest relative, or acted in bad faith or in some way reached a conclusion which was plainly wrong.
What both these judgments demonstrate is no more than a well‑recognised proposition that when a statute imposes a subjective test of the sort one sees in section 11(4) of the Act, this court will not interfere with the decision made save on well‑recognised public law grounds.
Furthermore, in that review exercise, given the circumstances engaged in cases of this sort, the court will inevitably be sensitive to the difficulties faced be those who have to make difficult decisions, sometimes in fast‑moving and tense circumstances.  The question might be, for example, whether it was open to the decision‑maker on the information available to him to reach the conclusion he did.  In both Re D and the case of WC the court used the words "plainly wrong" as shorthand for that concept.
Ms Street, who appeared, as I say, on behalf of the defendants, submitted that unless the assertion contained in Form 9, from which I have read, was dishonest, this court should not interfere.  She focused on the word "dishonest" because it had been found in paragraph 15 of the judgment of Otton LJ in Re D.
In my judgment, that is too austere an approach.  The court should look at the question on a wider basis because it is concerned with the legality of the process.  In doing so, the court will recognise that the decisions can only be questioned on a public law basis and, as I have already indicated, in an environment where some sensitivity to the difficulties faced by those making the decisions is required.
Scott Baker J alluded to bad faith.  Misuse of power, which is an aspect of the same thing, would be another label that might be attached.  Both are classic grounds of review which, if made out, would result in the process under consideration being adjudged unlawful.  His reference to misconstruing section 26 was also an example of his recognising that a decision might be flawed because a wrong legal approach had been taken.
The duty to consult is one which exists to enable there to be a dialogue about the action proposed in respect of a mentally ill individual.  The person consulted is entitled to have his views taken into account and, importantly, the consultation possess should enable the nearest relative to object to the proposed course if he wishes.  The consultation must be a real exercise and not a token one.  If an objection is made, it does not have to be a reasonable one.  It does not have to be one which judged objectively is sensible.  But it has the effect of stopping the proposed course of action, whilst of course not shutting out alternatives available under the Act.
Ms Street submits that as events unfolded, it was not reasonably practicable to make contact with GD's father until the morning of the assessment.  That being the case, it was not possible to engage in consultation before the application was made.  To have delayed the application to enable consultation to take place would have resulted in unreasonable delay.  So she submits that those matters were apparent to Mr Scheuring and his conclusion cannot be challenged.
Mr Simblet submitted that the evidence leads inexorably to the conclusion that there was no proper attempt to engage in consultation in this case at all.  Mr Scheuring's conclusion was thus flawed for that reason, because the statutory procedure was in effect sidelined.  He emphasised that the role of the nearest relation is an important one under the legislation and that it cannot matter that the social worker concerned, as a result of information provided to him by colleagues, has formed the view that GD's father was unlikely to be helpful.  He submits that Mr Scheuring has candidly admitted that he delayed attempts to make contact with GD's father and essentially boxed himself into the corner in which he found himself on the morning of Saturday, 14th June.  Whilst he would accept that ordinarily there is no need to search uphill and down dale for the nearest relation, in this instance there was a calculated decision not to do so whilst the whole process was in its early stages and being set up.  Thus, he submits, it could not have appeared to Mr Scheuring for the purposes of section 11(4) that it was not reasonably practicable to consult.
Furthermore, Mr Simblet submits that the events on the morning of Saturday, 14th June, provide further support for the submission that I have just summarised and possibly an additional point.  There was, submitted Mr Simblet, absolutely no reason why the assessment had to take place immediately at the family home.  Mr Scheuring was in possession of a warrant which entitled him to convey GD to a place of safety for the purposes of an assessment to be carried out there.  So, he asks rhetorically, why not attempt to make contact with GD's father, then convey GD to the unit, and only thereafter undertake the assessment and follow it by the application, if necessary. 
It is quite clear, as was recognised by Mr Simblet on behalf of the applicant, that at all times Mr Scheuring and the other professionals were motivated only by what they perceived to be in the best interests of GD.  His mother also shared that motivation and was desperately trying to confront a serious deterioration in her son's health.  But, submits Mr Simblet, that motivation cannot be used as a justification for what in effect was a circumventing of the statutory mechanisms found in section 11(4).  Conflicts within families and between members of a patient's family and the professionals are not uncommon, but there are other mechanisms available under the legislation to ensure that the patient is appropriately protected and treated.

Conclusion 
I accept that Mr Scheuring and those who were engaged with him in the days leading up to the assessment and admission to hospital were motivated only by the best interests of the patient, GD.  However, I have come to the conclusion, on both the written and oral evidence, that in seeking to protect the best interests of GD they calculated that they should do no more than nod in the direction of consultation as contemplated by section 11(4).  They set in motion a course of events which was designed to leave consultation with GD's father to the very last moment, and thus seriously inhibit the chances of his having any effective input into the process and the chances of his having an opportunity to make an objection.  In those circumstances, what in my judgment they contemplated could not properly be considered consultation at all.  In my judgment, this amounted to a misuse of power, albeit for the best of motives, that infected the application process from beginning to end.
For these reasons, I allowed the application and I made an order in terms agreed between the parties.
Thank you.
MS STREET:  Thank you, my Lord.  Just one matter which I should raise with you.  I think, you will correct me if I am wrong, I am sure, that at the outset you may have referred to Mr Scheuring as Keith Scheuring rather than Kevin Scheuring.
MR JUSTICE BURNETT:  I am sorry, that is my handwriting.  Yes, Kevin Scheuring.  I am glad that is the only point that I have got wrong.  As you appreciate, this has had to be done at some speed.
Now I borrowed Mr Simblet's Mental Health Act Manual, which I solemnly undertook to give back.  I think it would be of use if it might be made available to the shorthand writer for the three statutory provisions.
MS STREET:  My Lord, in fact it belonged to Miss Davis I think.
MR JUSTICE BURNETT:  Did it.  We do not need it, so let me hand it back.
MR YORK:  Can I apologise for my attendance at court.  I only came into court judge half past.  I had no notification that the hearing had been changed.
MR JUSTICE BURNETT:  I do not have your name.
MR YORK:  It is Mr York.
MR JUSTICE BURNETT:  Mr York.  I had assumed that there must have been a mix‑up over the time because, as I said before we started, on the list at one point yesterday we were listed for 10.30, despite my having said it was 10 o'clock, and that was then corrected.  So I am sure that is simply an oversight.
MR YORK:  My Lord, thank you.
MR JUSTICE BURNETT:  Thank you very much.  Is there anything else for this morning; Ms Street?
MS STREET:  I was just checking one of the dates in the reasons you have given with my instructing solicitor.
MR JUSTICE BURNETT:  Yes.
MS STREET:  That was the date of discussions with the police.
MR JUSTICE BURNETT:  The evidence, if you remember, was that Mr Scheuring had discussions at 11 o'clock on the 13th and at which they said they wanted a warrant, but he had already got the warrant.  So I think the discussion ‑‑
MS STREET:  That is correct.  I think one of our notes we had taken down the 14th, but it was of course the 13th.
MR JUSTICE BURNETT:  If I said the 14th, the discussion with the police was on the 13th.  The discussion with the Community Psychiatric Nurse and the team was on the 12th.
MS STREET:  And subsequently.
MR JUSTICE BURNETT:  And subsequently, but on 12th when the process was set in train. 
MS STREET:  There is one further point, I do not think it is important at all but there may be two different ways of reading part of Mr Scheuring's witness statement on the question of discussion with the police, because what he says is that ‑‑ 
MR JUSTICE BURNETT:  Which one are you looking at?
MS STREET:  This is paragraph 4 of his first witness statement. 
MR JUSTICE BURNETT:  Let me just get it out.
MS STREET:  I hesitate to raise this, because it does is not form part of your reasoning.
MR JUSTICE BURNETT:  Wait a moment.  (Pause)
Paragraph 4, are you looking at, of his first witness statement? 
MS STREET:  Yes.  Paragraph 4 of his first statement.  He says:

"At approximately 11am I spoke to the police who had insisted that in order for police to assist ..."

I had interpreted that as meaning that he spoke to the police at 11.00am and the police had at an earlier date insisted. 
MR JUSTICE BURNETT:  Yes, I think that is likely.  So although it is not clear from the papers that there was necessarily a discussion with police the previous day, as a matter of inference it seems to me overwhelmingly likely there was, because otherwise he would not have made the application for a warrant at 9.45 that morning.  As you will appreciate, Ms Street, one of the points that I hope I made clearly was that the decision to set all this in train was at the latest made the previous day.
MS STREET:  Yes.
MR JUSTICE BURNETT:  On the Thursday.
MS STREET:  Yes.
MR JUSTICE BURNETT:  Okay.  I hope that is clear.
MR YORK:  My Lord, there was just one other matter.  I understand, I was not in court at the time, but I understand from those instructing me behind that you referred to GD's father, in reliance upon a piece of evidence which was submitted by the defendants, as having a mental illness of some kind.
MR JUSTICE BURNETT:  I think I said some difficulties.  That is not accepted, is it?
MS STREET:  That is not accepted, no.
MR JUSTICE BURNETT:  Did I not add words to the effect "or so it appears from the evidence filed from the defendants".  I will check that when I get a transcript.
MR YORK:  My Lord, I am grateful.  The situation is that he has no diagnosis for a mental illness, he was only examined 55 years ago.
MR JUSTICE BURNETT:  Yes, thank you all very much.
MR YORK:  I am grateful.
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