R (S) v City of Plymouth
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,Lord Justice Kennedy |
| Judgment Date | 26 March 2002 |
| Neutral Citation | [2002] EWCA Civ 388 |
| Docket Number | Case No: A1/2001/2068 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 March 2002 |
[2002] EWCA Civ 388
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE MAURICE KAY)
Lord Justice Kennedy
Lord Justice Clarke and
Ladyjustice Hale
Case No: A1/2001/2068
Murray Hunt Esq (instructed by Messrs Bindman & Partners) for the Appellant
Alan Maclean Esq (Instructed by Plymouth City Council) for the 1 st Respondent
Miss Aswini Weereratne (instructed by The Official Solicitor) for the Interested Party
Lady Justice Hale:
This is an appeal from an order made by Maurice Kay J on September 2001 in the Administrative Court. He dismissed the appellant mother's application for judicial review of the local social services authority's decision to refuse her access to certain information about her adult son, C. C is in the authority's guardianship under the Mental Health Act 1983 and lacks the capacity to make such decisions for himself. At issue is how C's interest in preserving the confidentiality of personal information about himself is to be reconciled with his mother's interest, as his nearest relative, in having access to enough information about him to exercise her statutory functions under the Mental Health Act. This in turn raises issues about her rights under Article 6 of the European Convention on Human Rights and about the rights of them both under Article 8 of the Convention. It has not been suggested that the local authority have any independent rights as C's guardian.
The facts
C was born in June 1974 and is now 27 years old. His father died when he was very young. Thereafter his mother brought him up alone. He had learning and behavioural difficulties and attended special schools. Psychiatrists have differed in their diagnoses of his condition. In January 1993, for example, after a crisis hospital admission when C was 18, his consultant, Dr Morris, considered that C probably had 'soft neurology and a degree of minimal brain damage, which has produced a patchy set of learning difficulties with a behavioural component'. He noted that there were aspects of C's behaviour which had 'an autistic like quality' although C did not demonstrate anything like full autistic syndrome. In June 1994, on the other hand, another consultant psychiatrist, Dr James, concluded that C did not have autism or a related syndrome; rather his problem was over-sensitivity to criticism and the feelings of others. The recorded diagnoses were avoidant personality disorder and learning disability.
His mother has always wanted to look after him at home with appropriate support from the health and social services, including periods of respite care and appropriate treatment for his learning and behavioural difficulties. His behaviour presented problems, both for her and for their neighbours, when he lived at home but these were less noticeable in other settings. As C got older, the professional view began to develop that it would be better if he were cared for in a stable residential environment away from home.
On 19 February 1998, a case conference was convened under the 'adults at risk' procedure, to decide whether C should be so classified and if so to decide upon a care plan. The mother and a great many professionals, including a vocal local police officer, attended. The conclusion was to pursue guardianship if this was recommended in a report expected from Dr Morris. Dr Morris reported that C would 'meet all the requirements for guardianship, namely the presence of a mental disorder and general mental impairment in particular, would be at risk of harm to himself through neglect and vulnerability to assaultative behaviour from members of the public who might take great offence [at] C's public behaviour. His direct risk to others through violence is less clear.' His view was that, because C did not behave in the same way in other places as he did at home, 'he would be better placed in a small caring environment separate from his mother's home. Due to the complex nature of the relationship between mother and son, this may present certain difficulties. Social contact between C and his mother will of course continue as part of a package of care.'
Soon after this, an approved social worker, Ms Liljestrom-Wood, discussed the possibility of guardianship with the mother. This was followed on 5 March 1998 by a letter from Ms Wood and Mrs Treble, a community nurse, outlining three options: first that C entered residential care voluntarily; second that social services applied for guardianship without the mother objecting; and third that if she and C disagreed, social services could apply to court for her to be displaced as nearest relative and then go ahead with the guardianship.
C's mother asked for time to consult with Mencap and the CAB before deciding whether to agree. Then in April C was admitted to hospital for assessment under section 2 of the Mental Health Act. Thereafter a short term residential placement was arranged while discussions about guardianship continued. The mother was still reluctant to agree until she knew exactly what would be done under it. An application was therefore made to the county court to replace her as nearest relative. The mother was granted legal aid. On 6 July 1998 she signed a form stating that she did not object to the guardianship. This was forwarded to the local authority by her solicitors on 10 July with a letter making it clear that it was on the understanding that the application to replace her would be withdrawn. Ms Wood saw C on 13 July 1998 and made the guardianship application that same day. It was accepted by the local social services authority the next day. The application to the court was dismissed with consent on 17 July.
The guardianship was first renewed on 14 January 1999 after a meeting on 11 January which the mother was unable to attend. It was renewed again in July 1999 and again in July 2000 (and has again been renewed in July 2001 during the currency of these proceedings). C's mother had written on 8 July 2000 objecting to the renewal and enclosing a letter, dated 27 November 1999 but not then sent, which begins 'I am writing to you to end the Guardianship which you have on my son'.
C's mother has attended care planning meetings and received minutes of those. However, she has been shown none of the documentation upon which the guardianship or its renewal was based. She had only very brief minutes of the meeting on 11 January 1999 which led to the first renewal. She was at that time pursuing a formal complaint against the social services department in which she had asked for access to C's files. This was refused on 23 March 1999. She later made a complaint to the local government ombudsman but in January 2000 he decided not to pursue an investigation. On 18 March 2000 she wrote to the local authority again asking to see C's files. This letter was countersigned by C himself. On 10 April 2000 the complaints officer replied that they did not regard C's consent as valid as he did not have the mental capacity to understand what was being asked of him or its implications; since C could not consent to disclosure 'I am afraid it is not legally possible for us to allow you to see them'.
The mother's present solicitors then wrote on her behalf on 7 July 2000. They asked for access, first, to the recommendations and reports leading to the guardianship and its renewal, and second, to C's social services files. Ms Lawrance-Owen of the authority's legal practice replied on 28 July 2000. She was sympathetic:
'I would like to be able to supply you with copies of the written recommendations etc to which you refer as I believe that these will confirm that everything which has been done is in C's best interests. However, I can find no authority for me to disclose this information to Mrs Stevens or to you as her solicitors. I find it illogical, if not ludicrous, that the nearest relative should not be entitled automatically to this information but without authority I do not see how it can be disclosed.'
As to the files, she agreed that if C did not have the capacity to consent, the common law rules on confidentiality would apply but she would have to seek further instructions as to whether disclosure was in C's best interests.
The mother's solicitors wrote again on 16 August 2000 renewing their request and asking what steps the authority had taken to establish whether or not C had capacity. They pointed out that much emphasis had been placed upon C's wishes about where he should live while denying his capacity to consent to disclosure. Eventually, Ms Lawrance-Owen replied on 6 October 2000. She had consulted C's doctor, who did not believe that he had capacity to give informed consent to disclosure of his files (the doctor later confirmed this opinion, in a letter dated 4 April 2001). Interestingly, this follows an account of a visit to a solicitor by C and his advocate after which 'C's decision was that he did not want legal representation at the current time'. However, she agreed that
'the duty of confidentiality is not absolute and that the public interest that confidences should be preserved may be outweighed by some other public interest favouring disclosure'; but 'my reading of the case law leads me to conclude that disclosure should not be made without very good reasons. I do not believe that such reasons exist in this case … This is not a case where the parent does not know what the issues are or why decisions...
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