TW v Enfield Borough Council [2014] EWCA Civ 362

TW suffered from Obsessive Compulsive Disorder and the approved social worker (“SW”) employed by Enfield Borough Council (“Enfield”) made an application for TW’s admission to hospital under section 13(1) of the Mental Health Act 1983 (“MHA”).  Under sections 13(5) and 11(4) (that were then in force), the SW was obliged to consult the “nearest relative” of TW before making the application.  That person was TW’s father.  TW’s father was not consulted before the application because the SW had decided that (in the wording of section 11(4)) “such consultation [was] not reasonably practicable or would involve unreasonable delay”.

TW did not wish to be admitted to hospital, nor did she wish her family to be consulted by the medical team about this or even given details of her condition by them.  There was evidence that if TW learned that her family had been given details this would cause her great distress and might damage her health.  TW was detained for 77 days until released by order of the Mental Health Review Tribunal following an application by her father.

TW issued proceedings against a number of parties, including Enfield in its capacity as employer of the SW who had made the application and who had also made the decision that it was not reasonably practicable to consult before making that application.  The claim was for damages for unlawful detention and psychiatric injury.

TW issued an application seeking the leave of the High Court, as is required for an action against any individual discharging functions under the MHA.  Bean J subsequently handed down a judgement concluding that leave should be refused.  He held that it had not been wrong to conclude that it was not “reasonably practicable” within the meaning of section 11(4) of the MHA for the SW to consult TW’s father.  That was because to do so would have constituted an action by a public body that would have infringed TW’s right to her private life pursuant to Article 8(1) of the European Convention on Human Rights.  Therefore, Bean J held that the SW had been entitled to make the application to have TW involuntarily admitted to hospital without consulting TW’s “nearest relative”.

The High Court had also considered the history of TW’s objection to her family being consulted about her treatment. In her previous dealings with the mental health team treating her, TW had made it clear that she did not want the mental health team to have meetings with “her family” or “her parents”.  The team manager had advised TW’s mother that Enfield could not share any information with her about TW’s care without TW’s consent.  After an incident which had resulted in the arrest of TW, she dictated a letter to the Chief Executive of Barnet, Enfield and Haringey Mental Health Trust.  In this letter she complained about mental health workers “breaking patient confidentiality” by “giving information to my Mum and Dad about what is going on between me and Chase Farm”.  TW stated that there should be no meetings with her family and that she would like her father “taken off” from being her “nearest relative”.  There was also evidence that a mental health worker had noted that TW’s reaction to the involvement of her parents had been distress, anger and anxiety, which had led to TW stating she doubted whether she could trust her clinical team.

The issue before the Court of Appeal was whether Bean J correctly determined the ambit of the words “…not reasonably practicable” in section 11(4) MHA, bearing in mind that the court is under a statutory duty by section 3(1) of the Human Rights Act 1998 to read and give effect to section 11(4) in such a way as to give effect to the relevant Convention rights in Articles 5 and 8 of the European Convention of Human Rights (this is called ‘reading down’ statutory provisions).

Counsel for Enfield emphasised that the SW had concluded that it was not “reasonably practicable” to consult TW’s father as the nearest relative because of three factors in particular.  These were, first, the allegation (although without any evidence) of abuse; second, the fact that TW did not wish any information to be given to her family and that she would be medically distressed if that were done; and thirdly, the SW’s view that the nearest relative could not be consulted effectively without being given confidential information about the mental health of TW.

The Court of Appeal held that there were two aspects to the construction of the word “practicable” in section 11(4) but that these are only two aspects of what is ultimately a “single, unitary exercise” of construction.  First, there is what might be called the “domestic law” aspect of construction.  The word “practicable” means more than whether it is physically “possible” to consult the “nearest relative”.  In considering what is “reasonably practicable” it is legitimate to look at what might be the result of the proposed action in order to determine whether that action is “reasonably practicable”.  In the context of its use in the MHA the word “practicable” must have sufficient elasticity to take account of the circumstances in which the powers of the mental health professionals have to be exercised.

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 with the patient’s Article 5 and Article 8 rights.  A mental health patient’s right to maintain the confidentiality of her medical history and file and all the circumstances of her medical case must be part of her Article 8 right to a private life.  However, this Article 8 right is a qualified right; interference with Article 8(1) rights can be justified.

As a matter of construction of section 11(4) when a SW is considering whether it is “reasonably practicable” to consult the “nearest relative” before making an application, section 3(1) and 13(1) of the MHA imposes on the SW on 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 a private life.

Where the obligation to consult the “nearest relative” would constitute an interference with the patient’s Article 8(1) right, the decision of the SW on whether it is or is not “reasonably practicable” to consult the “nearest relative” will depend on whether that is justified and proportionate to do so in the particular circumstances of the case.  As a matter of construction 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 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 a SW’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 11(4).  Equally, it would be wrong 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 had to lead to a conclusion that it was “not reasonably practicable” to consult the “nearest relative”.

The Court of Appeal held that the decision of Bennett J in the case of R (on the application of E) v Bristol City Council [2005] 1 MHLR 83 should not have been followed by the High Court, as Bennett J’s analysis on the construction of section 11(4) by reference to the patient’s Article 8 rights was incomplete.  The Code of Practice published by the Secretary of State for Health, was also held to be incomplete as it failed to refer either to the patient’s Article 5 right or the qualification to the patient’s Article 8(1) right.

By section 6(1) of the Human Rights Act 1998 it is unlawful for a public authority to act in a way that is incompatible with a Convention right.  The SW had to make the decision on whether or not to consult the “nearest relative” upon the proper construction of section 14(1), taking into account the patient’s two Convention rights.  Based on what was known about the SW’s decision not to consult, the Court held that there was an arguable case that the decision had not been made on the right basis.

Therefore, the appeal was allowed.

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