E, R (on the application of) v Bristol City Council

Whether it is practicable to inform or consult a patient’s nearest relative under section 11 of the Mental Health Act 1983 may require consideration of the consequences of doing so. The concepts of possibility and practicability are distinct.

In a case engaging Article 8 rights, practicability may take account of the patient’s wishes, competence, health and well-being, together with the statutory importance of the nearest relative’s functions. The assessment requires a fact-sensitive balancing exercise. Where consultation would be harmful, futile or contrary to a competent patient’s strongly expressed wishes, it may be impracticable within section 11(3) and (4).

The claimant had longstanding mental health problems and wished to prevent her sister, her statutory nearest relative, from being informed or consulted about possible applications for assessment, treatment or guardianship. The claimant’s evidence, supported by the defendant, was that her sister’s involvement could cause significant or positive harm and was not in her interests.

The defendant considered that section 11(3) and (4) required notification and consultation unless those steps were not reasonably practicable or would cause unreasonable delay. The claimant sought declarations and prohibitory relief. The central issue was whether, in the particular circumstances, the statutory exceptions permitted the defendant and its approved social workers to refrain from informing or consulting the nearest relative.

1. Declaration granted. In the particular circumstances, it was not practicable for the defendant to inform or consult the claimant’s nearest relative under section 11(3) and (4) of the Mental Health Act 1983.
2. The nearest relative has important statutory powers and responsibilities, including involvement in admission decisions, access to sensitive information and powers relating to discharge and tribunal proceedings. The statutory role could not therefore be displaced lightly.
3. Section 3(1) of the Human Rights Act 1998 required section 11 to be interpreted, so far as possible, compatibly with Article 8. Even without that interpretative obligation, “practicable” and “reasonably practicable” could properly take account of consequences, including the patient’s wishes and health.
4. The court adopted the approach in Owen and another v Crown House Engineering Limited [1973] 3 All ER 618, Dedman v British Building & Engineering Appliances Ltd [1974] 1 WLR 171 and Re P (Adoption) (Natural Father’s Rights) [1994] 1 FLR 771, that practicability is context-dependent and may require attention to the end result rather than physical possibility alone.
5. The assessment required a balancing exercise. The court had to weigh Parliament’s intention that the nearest relative should protect and represent the patient against the claimant’s competence, strongly expressed wishes, best interests and the real risk of Article 8 harm. The Code of Practice’s narrower view that practicability concerned only the nearest relative’s availability was not accepted.
6. The declaration was confined to the particular circumstances. If those circumstances changed, the claimant could return to court seeking prohibitory relief. The claimant was awarded her costs, with detailed assessment of her publicly funded costs.