To consult or not to consult?

Alexandra Johnstone analyses a Court of Appeal ruling on a claim against a council for unlawful detention and psychiatric injury.

In the recent case of TW v Enfield Borough Council [2014] EWCA Civ 362, the Court of Appeal considered whether leave should be granted to TW to bring damages for unlawful detention and psychiatric injury against Enfield Borough Council, the employer of an Approved Social Worker (ASW), who had made an application for admission to hospital of TW on 29 June 2007 (i.e. before the amendments to the Mental Health Act had been brought into force). TW sought to bring the claim on the basis that her father, her Nearest Relative, had not been consulted by the ASW before the application for detention had been made and if consulted he would have objected to the application.

TW had not wished to be admitted to hospital, nor did she wish her family to be consulted by the medical team about her admission or to be given details of her psychiatric condition. Furthermore, the application of the ASW suggested that TW had accused her father and her brother of sexually abusing her, although the Court emphasised that there was no evidence of this. The patient had indicated she did not want her father to be her Nearest Relative and a colleague of the ASW had noted that the patient’s reaction to the involvement of her parents had been distress, anger and anxiety, which had led the patient to state that she doubted whether she could trust her clinical team. In these circumstances, the ASW came to the view that it was not reasonably practicable to consult TW’s father under s.11(4)(b).

The Judge who heard the case in the High Court found that TW’s objections to involvement of her family were genuine and serious and had been treated as such by the ASW. He also noted the evidence that the witnesses on behalf of Enfield Borough Council had concluded that any involvement of TW’s father on 29 June 2007 would have been likely to have caused TW  “distress and emotional upset”. He stated it was “clear that it was not “reasonably practicable” within the meaning of s.11(4)..for Enfield to have consulted TW’s father before applying” for TW’s admission to hospital under the Mental Health Act (MHA). Accordingly, any claim against Enfield for unlawful detention was bound to fail. He therefore refused TW leave to bring a claim against Enfield.

On application to the Court of Appeal, TW argued that the Judge had wrongly concluded that the fact that TW demanded complete patient confidentiality was sufficient to permit the ASW to conclude (subjectively) that it was therefore “impracticable” to consult TW’s father as her Nearest Relative.

Reference was also made to the Judge’s reliance on the case of R (on the application of E) v. Bristol City Council [2005], in which E (the patient) did not wish her sister to be involved with her care and E’s psychiatrist considered that it would be unhelpful to E’s mental health for her sister to act as her Nearest Relative. On an application by E that it was unlawful for the Local Authority or its ASW to notify or consult E’s sister, as Nearest Relative, without first obtaining E’s consent, the Judge held that when considering whether a particular action was “practicable”, the Court was entitled to look at the likely consequences of the course of action proposed. It was not “practicable” for the Local Authority to inform or consult a Nearest Relative, who intensely disliked the patient concerned or who might not act in her best interests. TW claimed that the Judge who had considered her case had erred in following the E case and that that case had been wrongly decided. TW considered that the Judge in the E case had failed to consider the balance that had to be carried out between the patient’s rights of confidentiality under Article 8(1) of the Human Rights Act 1998 and the right to liberty under Article 5.

TW argued that Enfield was wrong to place such strong reliance on Article 8 with regard to the patient’s rights of confidentiality as it had failed to take into account the procedural requirements of the Mental Health Act and its safeguards for patients in respect of Article 5.

Enfield maintained that the ASW had properly concluded that it was not “reasonably practicable” to consult TW’s father. Firstly, there was the allegation (although not supported by evidence) of abuse; secondly, TW did not wish any information to be given to her family, including her father, and she would suffer mental distress if this were done; and thirdly, the ASW was of the view that the Nearest Relative could not be consulted effectively without being given confidential information about TW’s mental health. Enfield also submitted that the ASW had demonstrated, in evidence produced to the Court, that she had balanced her statutory obligations to consult the Nearest Relative with the impact on TW if she were to do so and thus met the requirements needed to satisfy the balance between Articles 5 and 8 of the Human Rights Act.

The Court identified the main issue to be whether it was “reasonably practicable” under s.11(4) of the Mental Health Act for the ASW to have consulted TW’s father, in his capacity as Nearest Relative, before making the application under s.13(1). In reaching its conclusion, the Court had to consider the correct construction of the words “reasonably practicable” and then whether the facts of the case indicated it was, in fact, “reasonably practicable” for the ASW to have consulted TW’s father.

The Court accepted that the wording “practicable” in s.11(4) meant more than whether it was physically “possible” to consult the Nearest Relative. The Court also acknowledged that in considering the question of whether it was “reasonably practicable” it was legitimate to look at what might be the result of the proposed action. The Court stated that it had to consider s.11(4) of the Mental Health Act in the light of the obligations imposed upon it by the Human Rights Act. Article 5(1) imposed a positive obligation on the state to protect the liberty of those within its jurisdiction. However, as a qualified right, it could be infringed if the detention was “in accordance with a procedure prescribed by law”, including “the lawful detention of persons of unsound mind”. Given the potential conflict between the right to liberty provided by Article 5 and the right to confidentiality provided by Article 8, a Court needed to construe whether it was “reasonably practicable” to consult the Nearest Relative in a manner that was compatible with both those rights. The Court also emphasised the qualified nature of Article 8 and the fact that a person’s rights under that Article could be interfered with in accordance with law and on the basis that it was necessary in the interests of (amongst other things) “the protection of health” and “the rights and freedoms of others”.

The Court considered there to be two relevant interests to be taken into account. The first was the need to protect the health and wellbeing of TW in a manner that was itself in accordance with law. The second was comprised in the rights and interests of others, in particular, the rights of the Nearest Relative to be consulted if “reasonably practicable”. Any interference with the person’s rights must be proportionate to the end that was sought to be achieved by way of the interference.

The Court interpreted s.11(4) MHA as requiring the ASW 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 law and the patient’s Article 8(1) right in respect of the maintenance of patient confidentiality. The Court considered that just because a patient asserted that consultation with the Nearest Relative would result in infringement of her Article 8(1) rights to confidentiality, could not automatically lead to the conclusion that it was not “reasonably practicable” to consult the Nearest Relative. Nor was it correct for the ASW to conclude that because the consultation with TW’s Nearest Relative would require disclosure of details about TW’s medical condition that this would amount to a breach of TW’s Article 8(1) rights such that there was an inevitable conclusion that it was “not reasonably practicable” to consult the Nearest Relative. The Court considerd that the Judge in the E case had not given sufficient regard to the implications of the patient’s rights when interpreting whether consultation with the Nearest Relative was “reasonably practicable”. The Court criticised paragraphs 4.60 and 4.61 of the Code of Practice to the MHA as being “incomplete”, insofar as these paragraphs failed to refer to the patient’s Article 5 right or the qualification to the patient’s Article 8(1) right. The Court also criticised the content of paragraph 4.62 of the Code.

The Court concluded that, having regard to the construction of s.11(4) MHA, taking into account the patient’s rights under Articles 5 and 8, there was “obviously an arguable case” that the decision of the ASW not to consult the patient’s father as Nearest Relative was not made on the right basis. The decision by the ASW not to consult the father ultimately had to depend upon a careful analysis of the facts and the Court granted leave to TW to bring the claim against Enfield.

Comment

This case emphasises the importance of following the procedures of the Mental Health Act with the safeguards that seek to protect patients from the serious implications of the Act. The Court has made it clear that before making an application to admit a patient under the Mental Health Act, the AMHP must consider the importance of the patient’s rights under Article 5 of the European Convention on Human Rights and balance that against the requirement to protect patient confidentiality imposed by Article 8. Ultimately, each case will have to be considered on its own merits. Those making such decisions will need to give careful consideration to the balancing of the potentially conflicting rights of the patient and are advised to keep a careful record of the factors that have been taken into account when reaching their decision.

Alexandra Johnstone is a partner at RadcliffesLeBrasseur. She can be contacted on 020 7227 7283 or This email address is being protected from spambots. You need JavaScript enabled to view it..