TW v LB Enfield and Secretary of State for Health
| Jurisdiction | England & Wales |
| Judge | Bean J |
| Judgment Date | 08 May 2013 |
| Docket Number | HQ13X00316 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 May 2013 |
Neutral Citation: [2013] EWHC 1180 (QB)
High Court, QBD
Judge: Bean J
HQ13X00316
Appearances: H Curtis (instructed by DH Law Ltd) for TW; A Weston (instructed by Solicitor, LB Enfield) for LB Enfield; J Johnson QC (instructed by Litigation Division, Department of Health) for the Secretary of State as Intervenor.
Issues: Whether leave should be granted to allow an action for damages for wrongful detention and psychiatric injury to proceed against a local authority whose social worker made an application for detention under the Mental Health Act 1983; whether the requirement for leave breached Arts 6 and 14 ECHR.
Facts: TW was known to mental health services in light of her severe obsessive-compulsive disorder. She had frequently complained about breaches of her confidentiality when her condition was discussed with family members, including her father (who was her nearest relative). Concern about her condition led to a compulsory admission under the Mental Health Act 1983 in late June 2007 that lasted for 77 days. The application to detain was made by an Approved Social Worker employed by Enfield. In 2008, proceedings for wrongful detention and psychiatric injury were issued against various bodies, including the hospital and Enfield. The essential complaint was that TW's nearest relative was not contacted and given the chance to object, as should happen under s11(4) of the 1983 Act unless it was not reasonably practical; Enfield's witnesses indicated that they considered it not reasonably practical to consult TW's father in light of her strong views that her family should not be consulted. Leave to commence proceedings against local authorities in relation to their conduct pursuant to the 1983 Act is required by reason of s139 of the Act, which this also provides that a claim can only succeed if there is negligent or bad faith use of the relevant power. Once the need for leave was raised, an application was made to the High Court; also sought was a declaration that the leave requirement was incompatible with the ECHR in that it meant that there was discrimination in relation to access to a court, and so a breach of Art 14 combined with Art 6.
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 29 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 s139(2) of the Mental Health Act 1983, and a declaration that s139 is incompatible with the European Convention on Human Rights, in particular with Art 6 when read together with Art 14.
3. The Applicant was born on 3 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 25 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 7 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 24 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 29 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 5 January 2007 she again emphasised ‘no meetings to be held with parents’.
6. On 4 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 10 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 14 May 2007 (a date wrongly recorded in some documents as 14 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 3 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 5 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 22 June. On 7 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 10 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...
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TW v Enfield Borough Council
...that it meant that there was discrimination in relation to access to a court, and so a breach of Art 14 combined with Art 6. The judge ([2013] MHLR 214) dismissed the application, finding that there was no arguable case as TW's repeated insistence that her condition not be discussed with he......