TW v Enfield Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Christopher Clarke,Lady Justice Arden |
| Judgment Date | 27 March 2014 |
| Neutral Citation | [2014] EWCA Civ 362 |
| Docket Number | A2/2013/1400,Case No: A2/2013/1400 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 2014 |
[2014] EWCA Civ 362
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
MR JUSTICE BEAN
[2013] EWHC 1190 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Aikens
and
Lord Justice Clarke
Case No: A2/2013/1400
Michael Paget & Helen Curtis (instructed by DH Law Ltd) for the Appellant
Amanda Weston (instructed by London Borough of Enfield) for the Respondent
Hearing date : 22/01/2014
I. A Synopsis and the Issue on this appeal.
The appellant, whom I will call TW, suffers from Obsessive Compulsive Disorder ("OCD"). On 29 June 2007 an Approved Social Worker ("ASW") employed by Enfield Borough Council ("Enfield") made an application for TW's compulsory admission to hospital, pursuant to section 13(1) of the Mental Health Act 1983 ("the MHA 1983"). 1 Under the version of the MHA 1983 then in force the ASW was obliged, pursuant to sections 13(5) and 11(4), to consult the person appearing to be the "nearest relative" 2 of the patient before making this application. That person was TW's father. In fact, TW's father was not consulted before the application. This was because the ASW had decided that (in the wording of section 11(4)), "such consultation [was] not reasonably practicable or would involve unreasonable delay".
There is no challenge to the judgment of the medical professionals about the wisdom of having TW admitted to hospital on 29 June 2007, given her mental condition and her circumstances at the time. However, TW did not wish to be admitted, nor did she wish her family to be consulted by the medical team about this or even given details of her condition by them. There was evidence that if TW learned that her family had been given details that would cause her great distress and might damage her health.
Members of the medical team and some police officers arrived at TW's flat on 29 June 2007. TW would not let them in and she refused, to go to hospital. The police broke into her flat and she was forcibly removed to Chase Farm Hospital for treatment. TW was detained there for 77 days until released by order of the Mental Health Review Tribunal following an application by her father.
On 28 June 2008 TW issued proceedings against a number of parties, including Enfield in its capacity as employer of the ASW who had made the application that TW be admitted to hospital and who had also made the decision that it was not reasonably practicable to consult TW's father before making that application. The claim is for damages for unlawful detention and psychiatric injury. Enfield took two points in its defence document on the effect of section 139(1), (2) and (4) of the MHA 1983. First, Enfield said it could not be liable to TW for her detention unless it was demonstrated that the alleged act of wrongful detention complained of was done "in bad faith or without reasonable care". Secondly, Enfield pointed out that TW, as a mental patient, could only bring civil proceedings for such a claim against it with the leave of the High Court. Thus, insofar as the claim related to Enfield, it was a nullity because no leave had been given. 3
Eventually, after procedural complications and a considerable delay caused by matters that I do not need to go into, in January 2013 an application was issued in which TW sought the leave of the High Court, pursuant to section 139(2) of the MHA 1983, to bring the claim for damages for unlawful detention (or false imprisonment) and psychiatric injury against Enfield.
Bean J handed down a judgment on 8 May 2013 in which he concluded that leave should be refused. He held that it had indeed not been not "reasonably practicable" within the meaning of section 11(4) of the MHA 1983 for Enfield (through its ASW) to consult TW's father, being her "nearest relative", before the ASW applied for TW's admission for treatment on 29 June 2007. That was because to do so would have constituted an action by a public body that would have infringed TW's right to her private life pursuant to Article 8(1) of the European Convention on Human Rights. Therefore Bean J held that the ASW had been entitled to make the application to have TW involuntarily admitted to hospital without consulting TW's "nearest relative". Thus any claim against Enfield (as the ASW's employer) for unlawful detention of TW and any consequent psychiatric injury was bound to fail. Accordingly it would be pointless to grant TW leave to bring a claim against Enfield for unlawful detention or false imprisonment.
On this appeal the issue before the court is whether Bean J correctly determined the ambit of the words "…not reasonably practicable" in section 11(4) of the MHA 1983, bearing in mind that the court is under a statutory duty, by section 3(1) of the Human Rights Act 1998, to read and give effect to section 11(4) (so far as is possible) in such a way as to give effect to the rights contained in the European Convention of Human Rights ("ECHR") as set out in the Schedule to that Act. In this case the relevant Convention rights are those in Articles 5 and 8.
II. The statutory provisions of the MHA 1983.
I have set out the relevant provisions of the MHA 1983, as it was in force on 29 June 2007, in Appendix One to this judgment. I have also set out there sections 3 and 6 of the Human Rights Act 1998 (" HRA") and Articles 5 and 8 of the ECHR as scheduled to the HRA. Therefore I need only briefly describe here the effect of the relevant statutory provisions of the MHA 1983.
Pursuant to section 3, a patient may be admitted to a hospital and detained there in accordance with the Act's provisions. By section 3(2)(a) an application for admission for treatment may be made on the grounds that a patient is suffering from mental illness and that "[her] mental disorder is of such a nature or degree which makes it appropriate for [her] to receive medical treatment in a hospital…". By section 3(3) such an application has to be founded on the written recommendation of two registered practitioners.
Section 11(4) provides that such an application for admission for treatment must not be made by an ASW if the nearest relative of the patient has notified the ASW that he (the nearest relative) objects to the application being made. The remainder of the sub-section is at the heart of this appeal, so I will quote it here:
"…without prejudice to the foregoing provision, no such application shall be made by such [an ASW] except after consultation with the person (if any) appearing to be the nearest relative of the patient unless it appears to that [ASW] that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay".
Section 26 sets out how to determine which person will be the "nearest relative" of a particular patient. There is no dispute in this case that TW's father was her "nearest relative" for the purposes of the MHA 1983. Under section 29 the county court has the power (upon application) to direct that the functions of "the nearest relative" be exercisable by someone other than the person who would be such under the terms of section 26. At various times TW had stated that she did not want her father to be her "nearest relative" for the purposes of the Act but, under the provisions of section 29 in force at the time, the patient could not apply to make a change. In R(M) v Secretary of State for Health4 Maurice Kay J described this inability of the patient to apply to remove or change the nearest relative as being a "striking feature" of the Act. 5 It has been remedied by amendments to section 29 that were made by the 2007 Act.
Under section 13(1) of the MHA 1983 it is the duty of an ASW to make an application for the admission to hospital of a patient within the area of the local social services authority by which that ASW was appointed (in this case Enfield) in any case where the ASW is satisfied that such an application ought to be made "…and is of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by [the ASW]". Section 13(5) stipulates that any application made by an ASW under section 13 must not be in contravention of the provisions of section 11(4). Therefore, an ASW can only make an application under section 13(1) after consultation with the person appearing to be the nearest relative of the patient "…unless it appears [to the ASW] that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay".
Section 6(1) of the MHA 1983 provides that if an application for admission has been made in accordance with the terms of that Act then that is sufficient authority for the applicant or any person authorised by the applicant to take the patient to the hospital specified in the application. No further proof of the signature or qualification of the persons making the application or the necessary medical recommendations is needed: section 6(3). By section 6(2) the application is also sufficient authority for the managers of that hospital to detain the patient there "in accordance with the provisions of this Act". The effect of the provisions of section 6, which are not directly relevant to the present appeal, were considered by this court in R(M) v Hackney London Borough Council. 6
The heading to section 139 of the MHA 1983 is "Protection for acts done in pursuance of this Act". It is clear that the aim of ...
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...Disabilities. Mr Dawes felt constrained by the decision in TW v London Borough of Enfield [2013] EWHC 1180 (QB); upheld on appeal in [2014] EWCA Civ 362 from advancing any argument based on the constitutional guarantee against discrimination in the present ...
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Not reasonably practicable: are there now greater opportunities for abuse by a nearest relative?
...(Admin).Re: D (Mental Patient: Habeas Corpus) (2000), 2 FLR 848 (Admin).TW v. Enfield LBC (2013), EWHC 1190 (QB).TW v. Enfield LBC (2014), EWCA Civ 362.About the authorDavid Hewitt is a Visiting Fellow of the Northumbria University, UK and of BournemouthUniversity, UK. David Hewitt can be c......