GD v Hospital Managers of the Edgware Community Hospital & Anor

Section 11(4) of the Mental Health Act 1983 imposes two distinct safeguards before an approved social worker makes an application for admission for treatment. The nearest relative’s objection prevents the application, while consultation is required unless it appears to the social worker that consultation is impracticable or would cause unreasonable delay.

The statutory consultation must be genuine and must allow the nearest relative’s views to be considered and an objection to be made. A court reviews the social worker’s subjective assessment on ordinary public law grounds, including bad faith, misuse of power, legal error and a plainly wrong conclusion. A token attempt to consult, even with benevolent motives, may invalidate the detention.

The claimant challenged his detention for treatment under section 3 of the Mental Health Act 1983. He argued that the approved social worker had failed to consult his father, who was his nearest relative, and that his father had objected to the proposed admission.

The evidence showed that the professionals deliberately left contact with the father until the assessment was under way. The social worker then completed the statutory paperwork before speaking to him. The central issues were whether the father had objected, whether the consultation requirement had been satisfied, and whether the application was otherwise valid.

1. The application for a writ of habeas corpus was allowed. The detention was unlawful because the approved social worker had failed to comply with the mandatory consultation requirement in section 11(4) of the Mental Health Act 1983.

2. Section 11(4) contains two distinct requirements. If the nearest relative objects, the approved social worker must not make the application. Independently, the social worker must consult the person appearing to be the nearest relative unless it appears that consultation is not reasonably practicable or would involve unreasonable delay. A failure to comply with these requirements renders the subsequent detention unlawful: In re S-C (Mental Patient: Habeas Corpus) [1996] 1 QB 599.

3. The statutory language directs attention to the social worker’s subjective state of mind. However, the court may review the decision on ordinary public law grounds. It may consider whether the correct legal test was applied, whether there was bad faith or misuse of power, and whether the conclusion was plainly wrong or unavailable on the information before the decision-maker. The review must remain sensitive to the urgent and difficult circumstances in which such decisions are made. The approach in Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848 and R (WC) v South London & Maudsley NHS Trust [2001] EWHC Admin 1025 was explained accordingly.

4. Consultation must be a real exercise involving dialogue and consideration of the nearest relative’s views. It cannot be reduced to a token attempt made at the last possible moment. The objection need not be reasonable or objectively sensible. It nevertheless prevents the proposed application, subject to other statutory mechanisms for urgent treatment or for overriding an objection.

5. The court found that the professionals had intentionally postponed meaningful contact with the father because they feared that his involvement would obstruct the proposed admission. Their motives were directed to the claimant’s welfare, but the deliberate sidelining of the statutory safeguard amounted to a misuse of power and infected the application process. The court also rejected the submission that completion of the forms meant that the application had already been made; the application was made when submitted to the hospital managers.