TW v London Borough of Enfield & Anor [2013] EWHC 1180 (QB)

Case No HQ13X00316[2013] EWHC 1180 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2013
Before
MR JUSTICE BEAN
Between
TWApplicantLONDON BOROUGH OF ENFIELDRespondentSECRETARY OF STATE FOR HEALTHIntervener
Helen Curtis (instructed by DH Law Limited) for ApplicantAmanda Weston (instructed by Solicitor, London Borough of Enfield) for RespondentJeremy Johnson QC (instructed by Litigation Division, Department of Health) for IntervenerHearing Hearing dates: 29 & 30 April 2013
Judgment
[1]The Applicant suffers from chronic Obsessive Compulsive Disorder (“OCD”). The severity of her illness has varied from time to time. However, throughout this litigation, which began as long ago as 2008, she has sued in her own right and without a litigation friend.[2]On 29th June 2007, on an application made by an employee of the Respondent Council (“Enfield”), the Applicant was admitted to Chase Farm Hospital for treatment and detained there for 77 days. By the application which is before me she seeks leave to bring a claim for damages against Enfield pursuant to section 139 (2) of the Mental Health Act 1983, and a declaration that s 139 is incompatible with the European Convention on Human Rights, in particular with Article 6 when read together with Article 14.

The facts

[3]The Applicant was born on 3rd June 1969. Her first documented contact with Enfield’s Mental Health Services was in 1998. She was admitted to Chase Farm Hospital for treatment of her OCD, and later transferred to Grovelands Priory Hospital. Following her discharge she was supported in the community.[4]In 2006 and 2007 she was living alone in a flat to which she would not allow mental health staff to have access. She would, however, speak to them on the telephone and on a number of occasions dictated letters to them. The first of these in the papers, dated 25th January 2006, is addressed to Dr Veale, a consultant psychiatrist at Grovelands Priory. It begins by recording that the letter was dictated by the Applicant and adds the words “please keep safe in my file”. It asks for assistance in collecting ornaments from her parents’ home. It includes an allegation that when she visited her parents on 7th January “my Mum and Dad called the police and my Dad threatened to hit me and my Mum ran next door to a neighbour’s house. I was outside when the police came. My Mum and Dad tried to section me through the police who tried to smash the car window and get me out but I was able to stay in the car and drive away fast. … There are to be no meetings with my family.”[5]Following the incident referred to in this letter the Applicant was again admitted to Chase Farm Hospital for one month in February 2006. According to a further letter dictated by her she went back to her parents’ home on 24th March 2006 but her mother did not let her in and called the police again. She did not suggest that relations between her and her parents were entirely hostile. In the same letter, dictated on 29th November 2006, she said that they still phoned her when they were in a good mood. She added:
“I do like my Mum speaking to me when she is in a good mood. I like the reassurance she gives me.”
However, in a further note dictating on 5th January 2007 she again emphasised “no meetings to be held with parents”.[6]On 4th May 2007 she dictated a message to Dr Imelda Duignan, the consultant heading the team responsible for her care. This included the following:
“Arguments in the family very bad – nearing crisis point. Not talking at the moment (Mum, Dad and [T]) when they do, parents are using threatening behaviour. … Please do not give any more info to my parents about [V] etc as my Mum says you do do this. This is breaking confidentiality. Copy to be placed in [T] file.”
[7]On 10th May 2007 the Respondent’s Team Manager Avi Nundoo telephoned the Applicant’s mother and advised her that Enfield could not share information with her about her daughter’s care without the Applicant’s consent.[8]On 14th May 2007 (a date wrongly recorded in some documents as 14th June) Anesu Chabata was the duty Approved Social Worker (ASW) in Enfield’s Early Intervention Services Team. He was asked to set arrangements in train for the Applicant to be assessed under the Mental Health Act for admission to hospital. According to his statement the first opportunity that the police and the mental health team would have had to attend would have been three days later. The treating team decided not to proceed with an assessment for admission and decided instead to attempt “to seek a non-coercive solution”. Mr Chabata states:
“I did call to speak to TW’s nearest relative but was informed Mr W was not around but that I could ring back at 1400 hours to speak to him as he would be available then. When I spoke to him later he stated that he believed the assessment had been triggered by a complaint from his wife and that he did not see the point of trying an assessment because TW would not allow anyone access to her flat. I noted his objection to the assessment and passed the information to the duty ASW for follow-up; however, as stated above a different course was taken and the assessment did not proceed. I confirm that at the point when I contacted Mr W I was unaware of the TW’s specific instructions. As it happened I was not the ASW who would be making the assessment and application for admission and I had no further involvement with the case after 14/05/2007.”
[9]On 5th June the Applicant was arrested by the police and taken to a police station for questioning about an alleged incident of racial abuse directed at a neighbour. She was released and asked to report to the police on 22nd June. On 7th June 2007 she dictated a letter to the Chief Executive of Barnet, Enfield and Haringey Mental Health NHS Trust (“the Trust”). It includes the following:
“Please could you personally reply to this letter yourself as I have complained about this breaking of patient confidentiality for many years and it is still going on. I have spoken to a solicitor for advice and they have told me Chase Farm is breaking the law. They are willing to take on my case, but I am waiting for your response first. Chase Farm are causing more arguments in the family which has already strained our relationships and … is making my OCD worse and migraines and gynaecological problems. … I would like to make a formal complaint about Christine Drew, Dr Duignan and Avi Nundoo about breaking patient confidentiality which is the law, by giving information to my Mum and Dad about what is going on between me and Chase Farm.”
[10]After referring to an incident on 10th May 2006 she continued:- “If I get a new psychiatrist or change of Social Worker/CPN in the near future, which I am hoping for, I do not under no circumstances want Mum, Dad or brother knowing their names. … No meetings with my family. My Dad threatened to smash my face in once again on the phone on my birthday and my Mum was making it worse. … [VC] would like to be my next of kin and nearest relative. [She] has been getting my shopping for me for the last 11 months and my tablets and my other friends and milkman the year before that. My Mum and Dad have only brought my shopping once in the last two years. I would like my Mum to be taken off as my next of kin and my Dad off as the nearest relative.”[11]On 29th June 2007 Sandra Muschett, an ASW employed by Enfield, made an application for the Applicant to be admitted to Chase Farm Hospital for treatment. The doctors making the medical recommendation were Dr Duignan, who was the Responsible Medical Officer (“RMO”) and Dr Chukwuma. The circumstances leading to the referral were stated to be that the Applicant’s OCD had deteriorated to a degree where she had hit a neighbour on 17th June 2007. She had been taking the rubbish out of the neighbour’s dustbins into her flat. She had been unwilling to engage with support services or to allow them access to her flat. The flat was filled with rubbish and posed a risk to her and others because of the fire hazard. The note goes on to suggest that the Applicant had accused her father and brother of sexually abusing her. (It is right to say at once that there is no evidence of this, although it will be seen from the Applicant’s dictated letters that she had accused her father of hitting her.) Ms Muschett wrote that the Applicant “does not want her father to be her nearest relative within the meaning of the Act”. The form has a section headed “view of nearest relative”, in which Ms Muschett wrote:- “Due to Ms [W’s] statement/letter regarding her mother and father sexually abusing her in the past it was felt it was not reasonably practicable to consult the N/R father.”[12]The conclusion of Ms Muschett was that since the Applicant was unwilling to be admitted informally, an application for compulsory admission was appropriate due to the high level of risk.[13]Ms Drew, a colleague of Ms Muschett, says in her witness statement:
“At the time of the assessment Miss [W’s] clearly stated wish was that neither myself or any other members of the team have contact with her parents. Miss [W] had a difficult relationship with her parents. She often complained that there were frequent arguments between them which caused her considerable stress and mental health problems. She also told me that her father had been verbally and physically aggressive towards her. Her reaction to the involvement of her parents had been distress, anger and anxiety which led her to express her problems in trusting her clinical team. As professionals we were acutely aware of the impact on Miss [W] of further distress and emotional upset as well as her rights to confidentiality and her private life.”
[14]On the afternoon of 29th June Ms Muschett, together with others, attended at the Applicant’s flat. She refused to let anyone in. The front door was forced open by police and the Applicant was removed to hospital. In her witness statement dated 28th January 2013 she states:- “29th June 2007 was the day I was sectioned. More than nine people, including three police officers, doctors [and] officers from Environmental Health to section me. I was upstairs about to wash my hair and therefore when they knocked on the door I did not come to the door straightaway. They smashed my door in and humiliated me in front of all my neighbours. I was extremely frightened and felt totally helpless. As I did not recognise anyone in particular I shouted out aloud to them to call my parents. They must have heard me but simply ignored my requests.”[15]The account given of the incident by Ms Muschett is rather different. She states that the Applicant spoke to the assessing team through her window but continued to refuse to open the door. The police then had no alternative but to execute the warrant to enter the property. The Applicant came downstairs shouting that she did not want anyone to come into her property, but then allowed Dr Duignan and Ms Muschett in. According to Ms Muschett, “at no stage during the assessment did TW say that she wanted to talk to her father or parents or ask if I had spoken to her parents”, although she did tell a member of the nursing staff on arrival at the hospital that she wished to speak to her father.[16]On 14th September 2007, on the application of her father, the Applicant was released from detention by order of the Mental Health Review Tribunal.[17]Subject to the issue of the consent of the nearest relative there is no real challenge to the professional judgment of Ms Muschett, Dr Duignan and Dr Chukwuma in their assessment of the Applicant’s condition on 29th June. The Applicant’s case is that her admission and detention was unlawful because the Applicant’s father was not contacted and given the opportunity to object; and that in failing to consult him Enfield, as represented by Ms Muschett, acted in bad faith or at least with a lack of reasonable care.

The Mental Health Act 1983

[18]At the time of the Applicant’s detention in June 2007 the statute in force was the Mental Health Act 1983. The Mental Health Act 2007 has since made a number of amendments to the 1983 Act, some of substance and others of terminology: in particular the term “approved social worker” (ASW) has been replaced by “approved mental health professional” (“AMHP”). But neither the substantive nor the terminological changes affect this case.[19]Section 3 permits a patient’s admission to and detention in a hospital for treatment pursuant to an application founded on the written recommendations of two registered medical practitioners. A duly completed application for admission is sufficient authority for the applicant, or any person authorised by the applicant, to convey the patient to hospital, and for the hospital managers to admit her, without further proof of any matter of fact or opinion stated in the application (s 6).[20]An application for admission for treatment may be made either by an ASW (now an AMHP) such as Ms Muschett or by the patient’s “nearest relative”, a term defined by s 26(1). In the present case the Applicant’s father, the elder of her two parents, was her nearest relative. Ms Muschett was under a duty imposed by s 13(1) to make the application if she was “of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances”, that it was “necessary or proper” for the application to be made.[21]Section 11(4), as worded in June 2007 (though the current text is not materially different), provided as follows:- “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.”[22]By s 139(1)-(2), which have not been amended since 2007:
“(1) No person shall be liable, whether on the grounds of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act…………unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court……………….”
By s 139(4) claims against the Secretary of State or a health authority such as the Trust are excluded from both these provisions.

The procedural history of the claim

[23]On 27th June 2008 proceedings were issued in the Brentford County Court against the Trust, Enfield and Ms Muschett claiming damages for wrongful detention and psychiatric injury. In the Particulars of Claim dated 11th August 2008 there is a reference to “the fourth defendant”, apparently an environmental health officer who was among those entering the Applicant’s flat on 29th June 2007. The claims against Ms Muschett personally and the unnamed fourth defendant have not been pursued and I say no more about them. I am told that the claim against the Trust is still live but the Trust took no part in the application before me: leave is not required for the Applicant to sue them and the incompatibility issue therefore does not affect them.[24]On 9th September 2008 Enfield served its Defence. Apart from contesting many of the factual allegations in the Particulars of Claim, it took the point that the Applicant had failed to obtain the leave of the High Court to bring the claim against Enfield as required by s 139 (2) and that therefore, insofar as it related to Enfield, the claim was a nullity in accordance with the decision of the House of Lords in Seal v Chief Constable of South Wales[2007] 1 WLR 1910. The Applicant’s solicitors then issued an application notice in the High Court seeking leave under s 139(2) and on 4th November 2008 amended the claim to seek a declaration of incompatibility. Enfield’s pleaded response to that amendment pointed out that under s 7 (5) of the Human Rights Act 1998 a claim for a declaration of incompatibility must be brought within a year of the act complained of. However, s 7 of the Human Rights Act permits the Court to extend the one year period to such longer period as the Court considers equitable having regard to all the circumstances. There has been no opposition by any party to my considering the incompatibility issue on its merits and accordingly, insofar as necessary, I extend time.[25]Neither the application for leave under s 139 (2) nor the incompatibility issue could be tried in the county court. The case was therefore transferred to the High Court where by an order made on 20th January 2009 the Senior Master directed that the case be listed under Category A for trial by a High Court Judge as involving a point of public importance, namely the compatibility of s 139 with the Convention.[26]In Seal the House of Lords, whose judgment was given on 4th July 2007, had considered and rejected a challenge to the compatibility of s 139 (2) of the 1983 Act with Article 6 of the ECHR. Mr Seal had issued a claim for wrongful detention just before the expiry of the six year limitation period. He had failed to obtain the leave of the High Court before doing so. The courts held that this failure to obtain leave rendered the claim a nullity; and by this time it was too late for him to issue a new claim. Section 139 (2) had therefore led to his claim being entirely defeated.[27]Mr Seal took his case to Strasbourg, complaining that the striking out of his case amounted to a violation of both Article 6 (1) and Article 14. At the beginning of 2010 the hearing before the European Court of Human Rights had not yet taken place.[28]By a further order of the Senior Master dated 18th February 2010 the Secretary of State for Health was joined to the present case as an intervener in respect of the application for a declaration of incompatibility. Following a hearing on 2nd March 2010 Burnett J ordered that the Applicant’s applications, both for leave under s 139 (2) and for a declaration of incompatibility, be stayed pending the decision of the European Court of Human Rights in Mr Seal’s case.[29]That decision was given on 7th December 2010: (2012), 54 EHRR 6. The Strasbourg court, like the House of Lords before them, rejected the complaint under Article 6; and on the Applicant’s behalf it is accepted that the argument about the incompatibility of s 139 (2) with Article 6 taken alone cannot be pursued further. As to Article 14, the Court said at paragraph 87:- “The Court notes at the outset that the Applicant pursued his complaints under Article 6 (1) of the Convention through four tiers of the domestic courts, which gave considered and detailed judgments. In contrast, the issues arising under Article 14 taken in conjunction with Article 6 (1) have never been raised before the domestic courts. The applicant has failed to explain in any detail why he considered that domestic proceedings were effective in respect of his Article 6 (1) complaint but would be ineffective in respect of his Article 14 complaint.”[30]The Court therefore concluded that Mr Seal had failed to exhaust his domestic remedies in respect of the complaint under Article 6 (1) taken together with Article 14 and ruled that complaint inadmissible.[31]By an application in the present case lodged on 15th October 2012 the Applicant applied to lift the stay imposed by Burnett J. It is not clear to me why this took nearly two years from the Strasbourg decision; but that delay does not affect either of the decisions I have to make. On 15th January 2013 a case management conference was held before Walker J. He directed that the stay imposed by Burnett J be lifted and granted the Applicant permission to issue and serve on Enfield and the Secretary of State a fresh application notice for a new originating application to be consolidated with the 2008 claim. The new claim was duly issued a week later. It thus falls to me, four and a half years after the point was first raised, to decide whether leave should be granted under s 139 (2) and whether s 139(1)-(2) are compatible with Article 6 read together with Article 14.

The test for leave under Section 139 (2)

[32]There was no dispute before me as to the nature of the threshold which must be surmounted by an applicant for leave under s 139 (2). In Winch v Jones [1986] QB 296 Sir John Donaldson MR said at p305 that s 139:- “.. is intended to strike a balance between the legitimate interests of the applicant to be allowed at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process and the equally legitimate interests of the Respondent to such an application not to be subjected to the undoubted exception risk of being harassed by baseless claims by those who have been treated under the Acts. In striking such a balance the issue is not whether the Applicant has established a prima facie case nor even whether there is a serious issue to be tried, although that comes close to it. The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant’s complaint appears to be such that it deserves the full investigation that will be possible if the intended applicant is allowed to proceed.“ In Seal Lord Bingham summarised this by saying that the threshold for obtaining leave “has been set at a very unexacting level. … An applicant with an arguable case will be granted leave.”[33]I interpret this test as follows. If the case justifies further investigation at a trial, it should proceed to trial. But where an issue of law not dependent on oral evidence has been argued in detail before me and I have reached a clear conclusion about it, I should decide it rather than putting it off to become someone else’s problem, at considerable public expense.

The compatibility of Section 139 (2)

[34]Article 14 of the ECHR, headed “Prohibition of discrimination”, states:
“the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, birth or other status.”
[35]It has been clear law since the decision in Abdulaziz and others v UK (1985) 7 EHRR that Article 14 is not free standing, that a Applicant must show that the act or provision complained of has an impact on her enjoyment of another Convention right (in this case the Article 6 right to a fair trial), and that “discrimination” in Article 14 means a difference in treatment which has no objective and reasonable justification in the sense of proportionately pursuing a legitimate aim.[36]The meaning of “other status” has been the subject of much debate. The Strasbourg court held that it means a personal characteristic in Kjeldsen and others v Denmark(1976) 1 EHRR 711, a decision which has been followed in the leading domestic cases such as R (S and Marper) v Chief Constable of South Yorkshire [2004] l WLR 2196. In R (RJM) v Secretary of State for Work and Pensions[2009] 1 AC 311 the House of Lords held that the phrase “other status” should be given a “generous meaning”, and that on this basis homelessness was a personal characteristic which fell within the ambit of Article 14.[37]Ms Helen Curtis, for the Applicant, submits that mental illness (even if fluctuating in its seriousness) must be within the category of “other status” if homelessness is; on the other hand Mr Jeremy Johnson QC, for the Secretary of State, submits that s 139 focusses on the proposed respondent, not the applicant, and thus cannot constitute discriminatory treatment falling within Article 14.[38]It is unnecessary to resolve this issue since I consider that even if s 139 does have any effect on the Applicant’s rights under Article 6 read together with Article 14, that effect is plainly justified. In Seal at paragraph 20 Lord Bingham of Cornhill said:- “It was submitted for Mr Seal in the House, although not below, that the effect of section 139(2) was to infringe his right of access to the court held by the European Court in Golder v United Kingdom (1975) 1 EHRR 524 to be implied in article 6 of the European Convention on Human Rights. This is not an argument I can accept. The European Court has accepted that the right of access to the court is not absolute, but may be subject to limitations: Ashingdane v United Kingdom(1985) 7 EHRR 528, para 57. The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective: ibid, para 58; M v United Kingdom (1987) 52 DR 269, 270. What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right.”[39]The statement that “the protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective” is in my judgment a conclusive answer to the Article 14 claim. It is true that Mr Seal’s legal team had only alleged that s 139(2) was a breach of his access to the courts, not a breach with discriminatory effect. But I am in no doubt that if Lord Bingham had been asked whether he adhered to his view on justification notwithstanding that the provision is more likely to impact adversely on those suffering from mental illness than on others, he would have answered (though of course with his invariable courtesy) with a firm “yes”. I therefore dismiss the application for a declaration of incompatibility.[40]The claim as originally pleaded sought a further declaration that s 139(1) is incompatible with the ECHR. Ms Curtis did not pursue this point in oral argument and, having taken instructions, withdrew it. Had she not done so I would have dismissed that application too: in the light of the Strasbourg decision in Ashingdane, supra, the point is not sustainable.

The requirements of an arguable case under s 139

[41]Section 139(1) prevents any claim being made against Enfield as employer of Ms Muschett “unless the act [of applying for the Applicant’s admission] was done in bad faith or without reasonable care”. It is clear from R (M) v Hackney LBC [2011] 1 WLR 2873 that in order to be Convention-compliant this provision is to be read as though it had added at the end the words “or is otherwise unlawful, for example because of a contravention of s 11(4)”.

The meaning of “not reasonably practicable" under s 11 (4)

[42]It is common ground that the requirement of consultation with the nearest relative is in most cases an important prerequisite for the use of the powers to admit a patient for treatment pursuant to s 3. In GD v Hospital Managers of Edgware Hospital [2008] EWHC 3572) Burnett J said:
“46. 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 [process] 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.”
[43]In the same case Burnett J said of s 11(4): "38. 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.”[44]After referring to Re D (Mental Patient: Habeas Corpus)[2000] 2 FLR 848 (Admin) and R (WC) v South London & Maudsley NHS Trust[2001] EWHC Admin 1025, [2001] 1 MHLR 187, he went on:
“41. 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. 42. Furthermore, in that review exercise, given the circumstances engaged in cases of this sort, the court will inevitably be sensitive to the difficulties faced by 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. 43. 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. 44. 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.”
[45]I agree with these observations in so far as they relate to questions of professional judgment, as Burnett J no doubt intended. But questions of law are different. It is not a defence to a claim for wrongful detention or false imprisonment for the decision-maker to say that he genuinely believed that what he was doing was right in law, if in fact it was wrong in law. This leads to what I regard as the critical issue in this case, the meaning of “not reasonably practicable” in s 11(4).[46]In R(E) v Bristol City Council [2005] EWHC 74 (Admin) the patient did not wish her nearest relative, namely her sister, to be involved with her case and there was evidence that she would be so distressed by the sister being consulted that it could harm her health. The sister likewise did not wish to become involved. Bennett J said at paragraphs 18-20:
“So in the Applicant'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 Applicant'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 Applicant. 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 [relieve] 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. 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 Applicant'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 Applicant's wishes and/or her health and well-being.”
[47]I respectfully agree with this decision of Bennett J. I regard its ratio as being that when an adult whose mental health is in issue has clearly expressed the wish that her nearest relative is not to be involved in decisions about her case, and it appears to the AMHP that to contradict that wish may cause the patient distress to the extent of affecting her health, the AMHP is entitled to regard consultation with the nearest relative as not reasonably practicable.[48]Ms Curtis points out that in R(E) v Bristol City Council the nearest relative had expressly refused to be involved, and contrasts this with the present case where the father had only a few weeks earlier indicated that he thought it inadvisable for his daughter to be admitted for treatment. But Bennett J’s decision does not, as I read it, depend on the sister’s attitude. Instead it concentrates on the patient’s wishes, her health, and her Article 8 right to a private life.[49]Of course there may be cases where the patient (using the term in its non-technical sense) who says something on the lines of “don’t tell my father about this” is not to be taken at her word. But R(E) v Bristol City Council was not such a case, and nor is TW’s. She had repeatedly, in dictated letters, instructed Enfield’s staff not to involve her family. She had gone so far as to refer to having obtained solicitors’ advice about breaches of patient confidentiality. These were not deluded ravings, and Ms Muschett and her colleagues were right to treat them seriously.[50]The evidence of Enfield’s witnesses is that they considered that involving TW’s father on 29 June 2007 would be likely to cause her distress and emotional upset. There is no suggestion that this evidence is fabricated. Whether other ASWs would have taken a different view is immaterial. The test on this issue is a subjective one, and a matter of professional judgment. There seems to me no real prospect of a trial with oral evidence leading to a finding that their view was one which they were not entitled to reach.

Conclusion

[51]I conclude that it is clear that it was “not reasonably practicable”, within the meaning of s 11(4) of the Mental Health Act 1983, for Enfield to have consulted TW’s father before applying for her admission for treatment on 29 June 2007; and that the claim against Enfield is therefore bound to fail. Accordingly I refuse to grant leave under s 139(2) of the Act for that claim to be brought. I am grateful to all three counsel in the case for their assistance and for the quality of their arguments.

Cited in 1 later judgment