S v W

Whether a nearest relative unreasonably withholds agreement to compulsory admission is assessed objectively: the question is what a reasonable parent might do, not what the judge would have done. A recent Mental Health Review Tribunal decision must be respected unless there has been a significant change in circumstances which could justify a different decision on reconsideration. A change may arise where the Tribunal’s decision depended materially on an assurance that the patient would take medication, and subsequent evidence shows that the assurance cannot safely be relied upon. The patient’s continuing medication and stable condition while detained do not prevent a finding that detention is appropriate where treatment would probably cease, with consequent deterioration, outside hospital.

The applicant, the father and nearest relative of G.W., sought permission to appeal from an order made by Edmonton County Court on 9 September 1999. The order displaced him under section 29 of the Mental Health Act 1983 because he was said unreasonably to refuse agreement to G.W.’s admission for treatment under section 3.

G.W. had been detained under an ordinary hospital order. A Mental Health Review Tribunal had ordered his discharge, relying in part on his assurance that he would continue taking medication. Four professionals later received clear statements that he would not do so. The central issue was whether that evidence amounted to a significant change in circumstances and whether the father’s continued objection was unreasonable.

1. Application refused. Lady Justice Hale and Lord Justice Buxton each concluded that there was no realistic prospect of reversing the County Court’s order, and permission to appeal was refused.
2. The governing test, established in W v L [1974] 1 QB 711, is objective. The court asks what a reasonable parent might have done. It does not substitute the judge’s preferred decision. If the parent’s decision falls within the range of reasonable decisions, the court cannot interfere.
3. A Mental Health Review Tribunal’s decision is not an absolute bar to later action. As explained in R v Pathfinder NHS Trust, ex parte W, the decision must be respected unless there has been a significant change in circumstances which would enable the Tribunal to reach a different view if the matter were referred back.
4. The Tribunal’s formal conclusion had to be read with its reasons. Its acceptance of G.W.’s assurance that he would continue taking medication was a vital factor. The later evidence that he had repeatedly said he would not take medication constituted a significant change in circumstances.
5. It was not necessary for G.W.’s mental condition to deteriorate while he remained detained. A chronic illness may satisfy the statutory detention criterion where evidence shows that, without hospital detention, the patient would stop taking necessary medication and would soon deteriorate. The father could therefore reasonably be found to be withholding agreement unreasonably.
6. Lady Justice Hale regarded the hospital’s course as unsatisfactory, particularly its failure to seek prompt judicial review of the Tribunal’s decision. That criticism did not alter the legal conclusion.

• Court of Appeal (Civil Division): refused permission to appeal and dismissed the application.
• Edmonton County Court: on 9 September 1999, His Honour Judge Riddell ordered under section 29 of the Mental Health Act 1983 that the applicant be displaced as G.W.’s nearest relative.