V, R (on the application of) v London Borough Croydon & Anor

An approved mental health professional deciding whether consultation with the nearest relative would involve unreasonable delay must act on circumstances known to, or believed by, that professional at the time. The decision is subjective, but remains reviewable on ordinary public law grounds. The court should interfere where the decision is plainly wrong. The professional must not assume that consultation is unnecessary because the nearest relative will probably consent. Consultation is a statutory safeguard. Where unlawful detention is established on an application for habeas corpus, relief should ordinarily be granted.

The claimant was detained in hospital under Mental Health Act 1983 section 3 after earlier detention under sections 3 and 5(2) had become legally defective or had expired. An approved mental health professional made the section 3 application without first consulting the claimant’s nearest relative. She had attempted to make contact, but proceeded on the mistaken belief that the claimant remained lawfully detained until later that day.

The claimant sought habeas corpus, principally contending that the statutory exception permitting an application without consultation did not apply. The central issue was whether consultation would, in the circumstances known to or believed by the professional, involve unreasonable delay.

1. The claim succeeded. The court granted the writ of habeas corpus. The claimant’s detention under section 3 was unlawful because the approved mental health professional had proceeded without consulting the nearest relative.
2. Under section 11(4) of the Mental Health Act 1983, the professional had to form a judgment, by reference to the circumstances known to or believed by her, that consultation would involve unreasonable delay. Circumstances unknown to her could not justify the decision.
3. The applicable standard of review was drawn from GD v The Hospital Managers of the Edgware Community Hospital and Another [2008] EWHC 3572 (Admin). The decision was subjective, but reviewable on recognised public law grounds, including a plainly wrong conclusion, bad faith, misuse of power or a wrong legal approach.
4. The decision to dispense with consultation was plainly wrong. The professional believed that the claimant would remain lawfully detained until 7.30 pm, yet made the application at about 12.15 pm. The evidence did not show that a delay of several hours would have been unreasonable. Her errors in completing the form reinforced the conclusion that she was not properly exercising the statutory power.
5. It was immaterial that the claimant’s mother had consented on previous occasions or was likely to consent again. The professional was not entitled to assume the result of consultation because consultation was an important statutory safeguard.
6. The court did not decide the other grounds. It also did not grant permission for a proposed application under section 139, directing that any such application be made separately within seven days. The first defendant was ordered to pay 75 per cent of the claimant’s costs, assessed on the standard basis if not agreed.