E, R (on the application of) v Bristol City Council [2005] EWHC 74 (Admin)

Case No CO/4464/2004[2005] EWHC 74 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 13th January 2005
Strand
London WC2
B E F O R E:
MR JUSTICE BENNETT
Between
THE QUEEN ON THE APPLICATION OF EClaimant-v-
Between
BRISTOL CITY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS K MARKUS (instructed by South West Law, Bristol BS2 0BH) appeared for CLAIMANT for The Defendant did not appear and was not represented.
J U D G M E N T
[1]MR JUSTICE BENNETT: The Claimant in this case has suffered for many years from chronic mental health problems. From 1982 to 1986 she was detained in Broadmoor Hospital. From 1986 to 1988 she was detained in a low secure unit. Since then there have been other detentions and her last detention was in, or about, September 2002.[2]Her nearest relative is her sister, Mrs S. They do not get on. That is apparent from the matters deposed to in paragraphs 1 to 3 inclusive of the claimant's statement of 14th September 2004, details of which it is unnecessary for me to relate in open court. She has not seen Mrs S since February 2003.[3]The claimant does not want her sister involved with her or her mental health problems, and/or her care at all. I accept that there is credible evidence that if Mrs S is involved in decisions relating to the claimant's admission for an assessment or treatment, and/or if Mrs S were to take any action under the Mental Health Act 1983 in respect of the claimant, that that would cause the claimant significant distress. Furthermore, although neither the claimant nor her legal advisers have seen any report of the claimant's consultant psychiatrist, Dr Robinson, it is understood that he considers that it is not helpful to the claimant's health to have Mrs S as her nearest relative. On 13th September 2004, Dr Robinson wrote to the claimant's solicitors as follows:
"Further to a Care Planning Meeting on 8 July 2004 and your recent letter about [the claimant], I am writing to confirm that it is my clinical opinion that it is not in the interests of (the claimant's) mental health to continue to have [Mrs S] as her nearest relative. It is my view that if [Mrs S] was to be consulted without [the claimant's] permission about formal admissions to hospital, this would further damage [the claimant's] mental health because of the very strained relationship between the two of them."
In the defendant's acknowledgment of service it is said as follows:
"The Council does not dispute the factual evidence as to the potential impact on the proposed Claimant of the future involvement of the nearest relative (NR). It accepts that the involvement of the NR in this case is not helpful to the proposed Claimant and could be positively harmful."
[4]On 17th October 2003, the claimant's solicitors wrote a letter to the South Gloucestershire County Council outlining the claimant's real concerns about (and if I may put it loosely) the involvement of Mrs S. On 2Oth October the South Gloucestershire Council responded to the effect that any approved social worker must operate within the letter as well as the spirit of the law. It goes on to say this:
"They will take account of whether it is practical for them to consult with her nearest relative. That judgment will be based upon variable guidance and the Act in the Code of Practice and will be a matter for the individual concerned. Clearly there is advice that such consultation could in some circumstances have an adverse effect upon the patient's emotional health or safety. Whilst making your client's wishes I am unable at that point to give you a categorical assurance that no attempt will be made to contact her nearest relative and invite her to apply for a declaration and if necessary a court order in this respect."
Some while later, in March 2004, a letter was sent to the defendant in similar terms to that sent to the South Gloucester County Council in the previous October.[5]On 8th April the defendant wrote a long letter, the effect of which, as I understand it, is that whilst the defendant wished to respect the claimant's wishes, the provisions of section 11(3) and (4) of the Mental Health Act 1983 meant that the defendant could not exclude Mrs S completely. The defendant suggested that one way to resolve the potential dispute was for Mrs S to agree to transfer her responsibilities under the Mental Health Act to the defendant. Following further correspondence the defendant wrote, with the claimant's approval, to Mrs S.[6]On 9th July 2004, the defendant wrote to the claimant's solicitors in the following terms, and I will refer to the claimant as "the claimant" and Mrs S as "Mrs S" when I am reading out the terms of the letter:
"I write further to previous correspondence and confirm I have now had the opportunity of discussing [Mrs S's] reply with my client. Mrs [S's] letter stated as follows:- 'I understand that you are asking if I am prepared to transfer my functions as [the claimant's] nearest relative to someone else. After taking legal advice, I would consider delegating my nearest relative functions to the guardianship of Social Services with Power of Attorney. I feel that this would be the best way to resolve this matter.' I agree that this letter can be interpreted as an agreement by Mrs [S] that she is prepared to delegate her powers as nearest relative to Social Services. She may agree to delegate her powers as nearest relative to another professional if one is found who is willing to take on this task. However, having discussed this matter with my client, we do not agree that this means that Social Services are relieved of their legal obligation to inform the nearest relative of their intention to make an application for assessment or admission for treatment or guardianship. The only grounds for failing to comply with this obligation are that consultation is not reasonably practicable or would involve unreasonable delay. The fact that Mrs [S] appears to be willing to delegate her functions to Social Services does not mean it is not reasonably practical to consult with her."
[7]That did not satisfy the claimant and her legal advisers and accordingly, on 15th September 2004, proceedings for judicial review were issued. The relief sought was, first, a declaration that it is unlawful for the defendant, or any approved social worker employed by them, to notify or consult the claimant's nearest relative under section 11 of the Mental Health Act 1983 without the consent of the claimant and, secondly, for an order prohibiting the defendants, or any approved social worker, from notifying or consulting with the claimant's nearest relative under the section of the Mental Health Act without the consent of the claimant.[8]The defendant put in an acknowledgment of service, part of which I have already referred to, and stated that whilst it sympathised with the position of the proposed claimant it did not consider it had the power to give the assurances sought for the reasons therein set out. The defendant has through counsel, Mr David Forsdick, put in a skeleton argument, dated 10th January 2005, which, on the face of it, is limited to the issue of costs if the court decides to grant the declarations sought. However, there are matters therein which go to the main issue in this case. The defendant is not represented here today by counsel, or at all, in order to avoid unnecessary expenditure.[9]It would seem clear to me that this Mrs S is not an appropriate person to carry out the many powers and responsibilities given to her as the claimant's nearest relative under the Mental Health Act 1983. I say that because(i) the claimant does not want her as her nearest relative,(ii) it might be positively harmful to the claimant's mental and emotional well-being for Mrs S so to act, and(iii) Mrs S, it seems, does not wish so to act. Indeed, if it is necessary I would go so far as to find that it is not in the best interests of the claimant for Mrs S to be involved in any way with the claimant and, in particular, with the assessment and/or treatment of the claimant's mental health problems.[10]Section 29 of the Mental Health Act provides a limited mechanism whereby a County Court can order that the functions of the nearest relative of the patient be carried out by a person , in its opinion, is a proper person to act as the nearest relative of the patient and is willing so to do. However, the grounds upon which the County Court can make such an order are limited to those set out in subsection (3) of section 29 and, so far as the instant case is concerned, none of those matters apply. As Maurice Kay J, as he then was, said in the Queen on the application of M v Secretary of State for Health [2003] EWHC 1094 at paragraph 6:
"It is a striking feature of these provisions that the patient cannot apply to remove or change the nearest relative."
[11]The facts of that case were these, M's nearest relative was her adoptive father, Mr B. She wished that he was not but there were no legal means available to compel his replacement, nor could anyone else make an application on her behalf to have him replaced on the grounds that he was unsuitable. M, in her witness statement, referred to being extremely distressed by her knowledge that Mr B, as her nearest relative, had access, or potential access, to confidential information about her. She referred to several occasions where Mr B had information which she had not told him and which she strongly objected to him knowing. There were other occasions, which she referred to, where Mr B and his wife had made intrusive remarks to her indicating that they knew of details contained in her medical records. She stated that there was no relationship of trust between her and her nearest relative and did not want ever to see or to communicate with him or his wife again.[12]Maurice Kay J found that sections 26 and 29 of the Mental Health Act were incompatible with Article 8 of the European Convention on Human Rights and Fundamental Freedoms, as indeed had been admitted by the Secretary of State. Accordingly an appropriate declaration was made.[13]What then are the functions of a patient's nearest relative under the Mental Health Act? I gratefully adopt the summary of those functions given by Maurice Kay J at paragraphs 4, 5 and part of 6 of his judgment in M:
"The nearest relative plays an important part in the scheme of the Act. He may make an application for admission for assessment (section 2), an emergency application for admission for assessment (section 4) and an application for admission for treatment (section 3). No application for admission or treatment under section 3 may be made by an approved social worker without first consulting with the nearest relative unless the social worker considers that such consultation is not reasonably practicable or would involve unreasonable delay (section 11(4)). The manager of a psychiatric institution in which a patient is detained has to inform the nearest relative in writing about, amongst other things, the right to apply to a Mental Health Review Tribunal, the right to be discharged, the right to receive and send correspondence and the right to consent to or refuse treatment (section 123(4)). A nearest relative may order the discharge of a patient who is detained under section 3 (section 23). Prior to exercising this important power the nearest relative can appoint a medical practitioner to examine the patient and the appointed practitioner can require the production of records relating to the detention or treatment of the patient (section 24). The right to order discharge under section 23 is limited when the responsible medical officer certifies that the patient would, if released, be likely to be a danger to himself or others (section 25). Where a patient is to be discharged other than by the order of the nearest relative, the detaining authority is required to notify the nearest relative of the forthcoming discharge unless the patient requests that no such information is supplied (section 133 (2)). In addition to the power to order a discharge under section 23 the nearest relative may apply to a Mental Health Review Tribunal for the discharge of the patient pursuant to section 66. Moreover if someone else makes an application to the Mental Health Review Tribunal, the nearest relative must receive notice of the proceedings pursuant to rule 7(d) of the Mental Health Review Tribunal Rules. The nearest relative then becomes a party to the proceedings in the Tribunal 'unless the context otherwise requires' (rule 2(1)). Once a party to the proceedings, the nearest relative is entitled to be informed as to their progress and may be represented in the proceedings, may appear at the hearing and take such part in the proceedings as the Tribunal thinks proper (rule 22(4)). As a party, he will also receive the decision of the Tribunal and the reasons for it (rules 24 and 23). Where the nearest relative is the applicant to the Tribunal he may appoint a registered medical practitioner to visit and examine the patient and that practitioner may require production of and inspect any records relating to the detention and treatment of the patient (section 76(1)). As the applicant, the nearest relative may attend a Tribunal hearing, be heard by the tribunal, call witnesses and cross examine witnesses (rule 22(4)). Moreover, as an applicant, he also receives a copy of every document received by the Tribunal (rule 12(1)). Some of these provisions may be modified by the Tribunal in the interests of the patient. That is not intended to be a comprehensive statement of the powers and position of a nearest relative but it serves to illustrate the importance of the concept in the scheme of the Act."
[14]Thus it can be seen that the nearest relative is entitled to take actions affecting the fundamental rights of the patient and to have access to sensitive information concerning the patient.[15]I refer now to Application No. 26494/95 by J T v the United Kingdom, a decision of the European Commission of Human Rights (First Chamber). In that case the applicant suffered from mental health problems. The applicant wished to remove her mother as the nearest relative due to the difficult relationship between her and between the applicant and her stepfather. She wished to nominate somebody else. Her inability to do so constituted an interference with her private life in violation of Article 8 of the Convention. The Commission in their concluding remarks said as follows:
"The applicant considers that the automatic appointment of the nearest relative, the lack of means available to her to change the identity of that relative combined with the powers of access to personal information of the nearest relative amount, in the light of her reasonable fears surrounding her relationship with her nearest relative, to an interference in her private life which is not justifiable under the second paragraph of Article 8 (Art 8) of the Convention. Insofar as the applicant's complaint relates to her period of detention which ended in January 1996, the Commission considers, in light of the parties' submissions, that this part of the application raises complex and serious issues under Article 8 (Art 8) of the Convention which require determination on the merits. It follows that this complaint of the applicant cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para 2 (Art 27-2) of the Convention. No other ground for declaring it inadmissible has been established."
Accordingly, in respect of that alone, the Commission declared the complaint admissible. I am told that the United Kingdom Government subsequently agreed to amend the Mental Health Act to allow the patient to remove the nearest relative. Indeed, on 8th October 2004 Munby J, having granted permission, ordered, inter alia, the claimant to notify the Secretary of State for Health of these proceedings and to invite him to indicate what legislative steps were being taken to meet the decision in M. On 18th October letters were sent to the Secretary of State and to the Treasury Solicitor. On 17th December the Secretary of State for Health replied that he did not wish to intervene in the proceedings, that he was actively considering the remedial legislation but that he was not in a position to say when any proposals would be put forward. In fact the Mental Health Bill, in draft, but not yet introduced into Parliament contains provisions in clauses 232 to 246 inclusive dealing with the appointment of a patient's "nominated person".[16]I should now refer to a decision of the European Court in Z v Finland [1997] 25 EHRR 371. Miss Markus, counsel for the claimant, has given me an extract, from the website of the European Court of Human Rights, of this particular case. The facts do not need to be referred to. She drew my attention to paragraph 95 of the court's decision as follows:
"In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention (art 8). Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community... The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention ..."
[17]It seems to me, in the circumstances of this instant case, that the claimant's rights under Article 8 either have been interfered with or are in real danger of being interfered with. Section 11(1) of the Mental Health Act permits the nearest relative to make an application for admission for assessment, an admission for treatment or guardianship. Section 11(1) also permits an approved social worker to make such applications, but there are important restrictions imposed by virtue of subsections (3) and (4) of section 11. Under subsection (3) before or within a reasonable time after an application for assessment is made by an approved social worker, the approved social worker:
"shall take such steps as are practicable to inform ... 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."
Subsection (4) of section 11 prevents an approved social worker from applying in relation to a patient for admission for treatment, and/or for guardianship, if the nearest relative notifies the approved social worker, or the relevant local authority that he objects to the application being made and "no such application shall be made by such [an approved] social worker except after consultation with ... 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."[18]So in the claimant's case, prima facie, the approved social worker is obliged to inform the nearest relative under subsection (3) and consult with her under subsection (4). If such were to happen it would be against the claimant's express wishes and it could harm her health. Furthermore, in my judgment such contact with Mrs S would either be futile, as Mrs S would take no interest in the matter, or it might give Mrs S the opportunity to interfere even benevolently, as she might see it, in the life of the claimant.[19]However, within both subsections (3) and (4) are the words "as are practicable" and "not reasonably practicable" respectively. Can these words be so legitimately interpreted so as to retrieve the approved social worker, in the instant case, of having to inform, under subsection (3), and/or consult, under subsection (4), with Mrs S. In my judgment they can, for the reasons which I will now give.[20]Section 3(1) of the Human Rights Act 1998 requires the court, in construing section 11 of the Mental Health Act, so far as possible, to interpret it in a way which is compatible with the claimant's rights under the European Convention. In my judgment that is perfectly possible. Indeed, even without that statutory imperative, "practicable" and "reasonably practicable" can be interpreted to include taking account of the Claimant's wishes and/or her health and well-being.[21]I have had my attention drawn to a number of authorities. Some of the authorities, I accept, are dealing with the word "practicable" in a legal and factual context which is very different from the instant case. With that in mind, I come first to Owen and another v Crown House Engineering Limited [1973] 3 All ER 618, a decision of a National Industrial Relations Court about "practicable". In rule 2(1) of the Schedule to the Industrial Tribunals (Industrial Relations) Regulations 1972, the court held that in construing the word "practicable" it is permissible to look at the end result. At page 621 Griffiths J, as he then was, giving the judgment of the court, said as follows:
"The first question then is this: if an employer, during the course of negotiations, asks an employee not to make an application for compensation for unfair dismissal while he the employer considers making an increased offer of severance pay, is it practicable in all the circumstance for the employee to ignore that request and put in his application? It is important not to equate 'practicable' with 'possible'. When considering whether a course of action is possible, it is not permissible to consider the results of that course of action; if it can be done, it must be done. But when considering whether a course of action is practicable it may be permissible to look at the end result. Like so many other words in the English language 'practicable' will take considerable colour from the context in which it is used. In the context of factory legislation, when considering whether a particular precaution is 'practicable', one is no doubt approaching very close to the concept of physical possibility and this approach is reflected in such decisions as Adsett v K & L Steelfounders & EngineersLtd and Lee v Nursery Furnishings Ltd. Within the context of industrial relations, where emphasis is rightly placed on the vital importance of attempting to settle all differences by amicable negotiation, it is unrealistic to exclude the likely consequence of a course of action in considering whether or not it is practicable. At the end of the meeting on 16 August Mr Mott was left with the impression that a better offer would be forth-coming. Mr Muir said as much in evidence. What would have been the practical effect if Mr Mott had ignored Mr Muir's request to hold his hand but had pressed on with the application for unfair dismissal? The answer must be that it would almost certainly have killed any hope of a fruitful outcome to the negotiations."
A little later on Griffiths J said:
"In the view of this court, the tribunal placed too much weight on the physical possibility of presenting the application and paid insufficient attention to the almost certain ruin of the negotiations attendant on such action. The particular circumstance so important in this case is that the presentation of the application was delayed at the specific request of the employer. This is a circumstance which the court is entitled to and should take into account in considering whether or not it was practicable to make the application. In the face of such a request we have no doubt that it was not 'practicable' to make the application within the meaning of the proviso. This is not to say that in all cases where parties are negotiating an applicant is relieved of observing the time limit. This is a special case and founded on the action of the respondents which caused the appellants to hold their hand."
[22]A similar point arose for decision in Dedman v British Building & Engineering Appliances Ltd [1974] 1 WLR 171. Lord Denning, MR, said, in the course of his judgment, that the word "practicable" should be given a liberal interpretation because a strict construction would lead to injustice (see page 176). He further referred to the case of Owen, which, as I read his judgment, he approved. Scarman LJ, as he then was, agreed with Lord Denning (see page 179). He said:
"Upon the point of construction of 'the escape clause' I agree with Lord Denning MR. The word 'practicable' is an ordinary English word of great flexibility: it takes its meaning from its context. But, whenever used, it is a call for the exercise of common sense, a warning that sound judgment will be impossible without compromise. Sometimes the context contemplates a situation rarely to be achieved, though much to be desired: the word then indicates one must be satisfied with less than perfection: see, for example,its use in section 5 of the Matrimonial Property Act 1970. Sometimes, as is submitted in the present case, what the context requires may have been possible, but may not for some reason have been 'practicable'. Whatever its context, the quality of the word is that there are circumstances in which we must be content with less than 100 per cent: and it calls for judgment to determine how much less."
[23]An authority which I have found particularly helpful is Re P (Adoption) (Natural Father's Rights) [1994] 1 FLR 771, a decision of Ewbank J. The relationship between P's parents, who had never married, had broken down. The father was not involved with the mother's pregnancy or subsequent birth of P. The mother decided that she wished to have P adopted and handed her over to the local authority shortly after giving birth. P was subsequently placed with applicants in their temporary foster care. Under rule 4(4) of the Adoption Rules 1984, the local authority was required to set out the wishes and feelings of each natural parent in relation to the adoption in their Sch 2 report. The question arose whether it was practicable to discover what the wishes and feelings of the father were towards the adoption of a child of whose existence he was unaware. Ewbank J held that when considering whether a course of action was practicable, it would be permissible to look at the end result.[24]At page 772 Ewbank J said:
"The local authority have the duty of preparing the Sch 2 report and the guardian ad litem has the duty of preparing a report too. In the Sch 2 report, under r 4(4), para 2(j), the local authority have to set out the wishes and feelings in relation to adoption and the application of each natural parent; that would include the father ... These details have to be given, so far as is practicable, by the local authority; and the question arises whether it can be said that in a case where a father has not seen, or even heard of, the baby, that it is not too practicable to find out his wishes and feelings. Everything else under the rules can be discovered without interviewing the father, but it is difficult to see how his wishes or feelings could be discovered without letting him know what had happened in relation to this child. So it has been necessary to consider the word 'practicable'. On the face of it, it would appear to be perfectly practicable to ask somebody what their wishes and feelings were, but it is said on behalf of the mother, who is violently opposed to the father knowing anything about the child, that the word 'practicable' imports a consideration of the consequences of the action and I have been referred to Owen v Crown House Engineering Ltd [1973] 3 All ER 618 where the word 'practicable' was considered."
Ewbank J cited the in the judgment of the passage of Griffiths J, to which I have already referred. Ewbank J continued at letter H:
"I find that a valuable exposition of the meaning of 'practicable' and it seems to me to fit in with the rule that I have referred to; and so if the consequences of ascertaining the wishes and feelings of the father would be detrimental for the child, then I would be prepared to say that it was not practicable to obtain them. I say that largely because of s 6 of the Adoption Act 1976 ... [which he then sets out]... and that duty governs, in my judgment, the practicability of complying with these rules."
[25]Ewbank J then undertook a balancing exercise. He said that there was strong arguments both ways. However he concluded, at page 773G, that considering P's long-term welfare it was better for the matter to be faced up to rather than left to be dealt with if, and when, the father found out.[26]Finally I was referred by Miss Markus to the Queen on the Application of C v the London Maudsley NHS Trust and the Mental Health Review Tribunal [2003] EWHC 3467, where Mr Nicholas Blake QC said in his judgment at paragraph 11 in relation to "practicable" in section 4(3) of the Mental Health Act:
"It is the best practice directed by the section but there is the exception of practicability. Practicability itself is not a black and white concept and lends itself to questions of judgment, fact and degree."
[27]To the contrary is the Code of Practice published by the Secretary of State for Health where at paragraph 2.16 it is said, in relation to section 11(4):
"Practicability refers to the availability of the nearest relative and not to the appropriateness of informing or consulting the person concerned."
[28]However, in my judgment, the Code of Practice is issued for guidance. It does not have the force of a statute. In any event, in my judgment, the passage I have quoted from above is wrong. The author, with respect, has fallen into the trap of confusing the different concepts of "possibility" and "practicability". The words in paragraph 2.16 are contrary to the authorities I have referred to and, with respect, to common sense. Is the approved social worker really bound to inform/consult the nearest relative of a patient who may intensely dislike a patient and/or who would, or might, not act in the patient's best interest? The answer in, my judgment, is, of course not and particularly so where the patient, as here, is competent and has strongly expressed her wish that her nearest relative, Mrs S, is not informed or consulted.[29]Is, therefore, the defendant, or the approved social worker, relieved of the duty to inform (section 11(3)) and consult (section 11(4)) with Mrs S in the particular circumstances of this case? That, in my judgment, requires a balancing act to be performed, as Ewbank J did in Re P. On the one hand, Parliament clearly intended for the nearest relative of a patient to have the opportunity of playing a significant role in the protection of the patient or otherwise acting in his or her interests. The summary given by Maurice Kay J in M, which I have set out, demonstrates that. It is not lightly to be removed by invoking impracticability. On the other hand, to confine practicability, as does the Code of Practice, is far too restrictive and could lead and, in my judgment, would lead to positive injustice in the breach of the claimant's rights under Article 8. There is no reason to believe that an approved social worker will act otherwise than in the claimant's best interests. The claimant, who is competent, does not wish for Mrs S to carry out the functions of the relative under the Mental Health Act. In all the circumstances of the case, I would hold that it is not practicable for the defendant to carry out its duty to inform under section 11(3)and to consult under section 11(4).[30]During the course of her helpful submissions I raised with Miss Markus the terms of the declaration the court ought to make. It seemed to me, bearing in mind the written submissions of Mr Forsdick that the declaration sought in paragraph 1 of section 6 of the claim form is either too wide or would be unhelpful in the particular circumstances of this case. I would like to say how impressed I have been about the responsible way that the defendant has conducted itself generally and in these proceedings. I have no doubt at all that if I were to make a declaration that it is not practicable for the defendant to carry out its duties to inform the nearest relative under section 11(3) and/or to consult under section 11(4) that the approved social worker and/or the defendant would not do so. If the position were to change then the claimant would, in my judgment, be able to return to this court and ask the court to make an order prohibiting the defendants, or any approved social worker, from informing or consulting with Mrs S.[31]I put those points to Miss Marcus and she, being entirely realistic, accepted the force of them and, as I understand it, is content that I should make the declaration in the terms that I have indicated.[32]MISS MARKUS: Thank you very much for that. Could I correct one very minor point which is simply, for the record, the date of a letter very early on in the judgment. When you were rehearsing the history you said that South Gloucestershire Council responded to my solicitors on 21st October 2003, it was actually 20th October 2003. The only other point that you may want to insert, simply for completeness, and in relation to facts, is that you set out the Secretary of State's reply to my solicitor's letter pursuant to the invitation of Munby J. I did also set out, in my skeleton argument, that the draft Mental Health Bill contains proposals to replace the nearest relative of the nominated --

MR JUSTICE BENNETT: Have you got a copy of that?

[34]MISS MARKUS: I have not got a copy. I can send it to your Lordship.[35]MR JUSTICE BENNETT: Would you send it to me. I will incorporate it. Yes?[36]MISS MARKUS: Taking, of course, note of the comments that you have made, with regard to the responsible conduct of the defendant in this case, with which comments I do not respectfully descend, nonetheless I do pursue an application for costs. I pursue the application for these reasons: first, the usual rule is that costs would follow the event, subject to the court's discretion. The plain fact is --

MR JUSTICE BENNETT: Your client presumably was publicly funded with a nil contribution?

[38]MISS MARKUS: As your Lordship is aware, the rates of payment are significantly different if costs are assessed on an inter partes basis or on a publicly funded basis. More significantly than that, the Legal Services Commission.[39]MR JUSTICE BENNETT: Just educate me: if I make no order as to costs you and your solicitors will get paid "X", but if I make an order that the City Council pay costs it will be "X plus"?[40]MISS MARKUS: Yes, the legal aid assessment rates are lower than the usual inter partes rates applied by the court upon assessment. That is the first point. It makes a real difference from that point of view. Also particularly significant, as your Lordship is aware, the Legal Services Commission is operating under increasingly tightened judgments. There is considerable authority that the court should not usually fail to make a costs order against the publicly funded defendant where the claimant is legally aided, because the Legal Services Commission's own judgment is under such considerable pressure. Those considerations when one takes--[41]MR JUSTICE BENNETT: You can say this, although, strictly speaking, the defendants did not bring it on themselves as Mr Forsdick says "by any unjustified act", the fact is that their attitude has made, which is a perfectly responsible attitude to take, you take it to court for a decision which you have got.[42]MISS MARKUS: That is right. We have advanced arguments which by and large have been accepted by your Lordship which have been taken not only with existing case law, but with common sense. The only way in which my client could achieve the remedy she required was to come to court. It is true that the costs overrule and, in particular, the local authority's costs will have been reduced by the local authority not attending. Whether it has had a significant impact on my client's costs will be a debatable point.[43]MR JUSTICE BENNETT: You need persuade me no more. You shall have your costs.[44]MISS MARKUS: Could I ask also that we have a detailed assessment of the claimant's publicly funded costs, which is necessary as well.[45]MR JUSTICE BENNETT: Yes. Thank you very much for your help. I am most indebted to you for all the research you did.

Cited in 5 later judgments