R (M) v Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maurice Kay |
| Judgment Date | 16 April 2003 |
| Neutral Citation | [2003] EWHC 1094 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No:CO/4744/2002 |
| Date | 16 April 2003 |
[2003] EWHC 1094 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Maurice Kay
Case No:CO/4744/2002
Paul Bowen (instructed by Scott-Moncrieff & Sinclair) for the Claimant
Steven Kovats (instructed by Department of Health) for the Defendant
M is a thirty four year old woman. She suffers from a mental disorder currently diagnosed as a borderline personality disorder although she has previously been diagnosed as suffering from a paranoid psychosis. She has a history of self harm since the age of eleven. When she was fourteen she ran away from home and was later made the subject of a care order. While she was in the care of a local authority she made allegations of sexual abuse against her adoptive father. I shall refer to him as Mr. B. In her witness statement in the present proceedings M states:
"Mr. B started sexually assaulting and abusing me when I was four years old and carried on until I was eleven years old. I believe that his wife…knew of his crimes and did nothing to stop him or protect me. I am extremely frightened and distressed by Mr. B and I deeply mistrust his wife."
The allegations have always been denied by Mr. B. However they are accepted as true by M's clinical team. Her current responsible medical officer, Doctor Hindson, states:
"I understand that her adoptive father abused M when she was a child. Consequent on her early abusive experiences, she has pervasive developmental mental disorder. This has been characterised in the past by drug dependency, serious self harm and emotional dysphoria. She continues to need psychotherapeutic support and care. Responsible psychiatrists, social workers, and nursing staff have always accepted the accuracy of M's account of sexual assault and abuse in childhood. Her symptoms, such as flash backs, are consistent with her description of the crimes committed against her."
M came into contact with the psychiatric services in 1988. At the time she was aged 19 and serving a custodial sentence. In the course of that sentence she was transferred to Broadmoor Hospital under the provisions of section 47 of the Mental Health Act 1983. Following her release from Broadmoor she spent several years living in supported accommodation in the community. On 20 October 1998 she was detained pursuant to section 3 of the Mental Health Act at Chadwick Lodge, a medium secure psychiatric hospital in Milton Keynes. On 5 August 2002 she was released on leave pursuant to section 17 of the Mental Health Act. She presently lives in a hostel under the supervision of Doctor Hindson and remains liable to detention under the Act.
Detention pursuant or section 2 or section 3 of the Mental Health Act involves the restriction of personal liberty. One of the safeguards provided for by the Act is the role accorded to the "nearest relative" of the detained person. Section 26(1) provides:
"In this part of the Act 'relative' means any of the following persons:
(a) husband or wife;
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(e) grandparents;
(f) grandchild;
(g) uncle or aunt;
(h) nephew or niece."
The "nearest relative" means the person first described in sub-section 1 who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half blood and the elder or eldest of two or more relatives described in any paragraph of sub-section (1) being preferred to the other or others of those relatives, regardless of sex: section 26(3).
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 132 (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 the Tribunal hearing, be heard by the tribunal, call witnesses and cross examine the 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. The other important provision of the Act is section 29, the material parts of which state:
"(1) The County Court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by the applicant, or by any other person specified in the application, being a person who, in the opinion of the court, is a proper person to act as the patient's nearest relative and is willing to do so
(2) An order under this section may be made on the application of
(a) any relative of the patient;
(b) any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, with last residing before he was admitted); or
(c) an approved social worker;
but in relation to an application made by such a social worker, sub-section (1) above shall have effect as if for the words "the applicant" there were substituted the words "the local social services authority."
(3) An application for an order under this section may be made upon any of the following grounds, that is to say,
(a) that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is;
(b) that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;
(c) that the nearest relative of the patient unreasonably objects to the making of an application or admission for treatment or a guardianship application in respect of the patient; or
(d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or guardianship under this Part of the Act, or is likely to do so."
It is a striking feature of these provisions that the patient cannot apply to remove or change the nearest relative.
In the present case, M's nearest relative is Mr. B. She wishes that he were not but there are no legal means available to her to compel his replacement. Nor can anyone else make an application on her behalf to have him replaced on the grounds that he is unsuitable. In her witness statement, M refers to being extremely distressed by her knowledge that Mr. B, as nearest relative, has access or potential access to confidential information about her. She refers to...
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