D v Barnet Healthcare Trust & Anor

For the purpose of Mental Health Act 1983, an approved social worker consulting the person appearing to be the patient’s nearest relative need not conduct a reasonable inquiry into the legally correct identity of that relative. The relevant questions are whether the asserted view was honestly held and whether the conclusion was plainly wrong.

The expression “cared for” bears its ordinary meaning. It requires more than minimal assistance, but does not require the substantial, regular and sustained care described in another statute or long-term residential care. Where the evidence shows substantial and sustained practical support, the social worker may properly treat the caring relative as the nearest relative.

The appellant was detained under section 3 of the Mental Health Act 1983 and sought a writ of habeas corpus. An approved social worker had consulted his younger daughter, L., as the nearest relative before applying for his admission for treatment. The appellant argued that he was the nearest relative because he was the elder child, and that L.’s assistance did not amount to caring for him under section 26(4).

Owen J dismissed the application on 29 October. The appeal concerned the meaning of “cared for” and the scope of the phrase “appearing to be the nearest relative” in section 11(4).

1. Extension of time. Although the solicitors’ delay was deplorable, the court exercised its discretion to extend time because the appeal concerned the appellant’s liberty and he was suffering from mental disorder.
2. Meaning of “cared for”. The ordinary words in section 26(4) did not require the additional statutory threshold in section 1(1)(b) of the Carers (Recognition and Services) Act 1995. Care had to be more than minimal, but it could fall short of long-term or full-time care. The relevant circumstances included the practical services provided and their substantial and sustained character. The court accepted the approach in R v Liverpool City Council, ex parte F, which referred to the duration, continuity and quality of care, while noting that the cited passage concerned a change in the identity of the carer.
3. Section 11(4). The validity of the application depended on whether L. appeared to the approved social worker to be the nearest relative, not whether she was ultimately the legally correct nearest relative. Section 11(4) imposed no duty of reasonable inquiry. The court should examine the honesty of the social worker’s assertion and whether the conclusion that L. was the nearest relative was plainly wrong. His good faith was not impugned, and the conclusion was not plainly wrong.
4. Application and disposition. L. had provided substantial practical assistance, including managing finances, paying bills, ensuring food was available, and dealing with incontinence. Her services were more than minimal and were substantial and sustained. The application for habeas corpus was misconceived. The appeal was dismissed. The order was nisi against the legal aid fund with nil contribution, subject to detailed legal aid assessment.

• High Court of Justice, Queen’s Bench Division: Owen J dismissed the application for a writ of habeas corpus on 29 October.
• Court of Appeal (Civil Division): The appeal was dismissed and the application for the writ was held to be misconceived.