CX v A Local Authority & Anor

Consultation with a nearest relative before an application under section 3 of the Mental Health Act 1983 must be sufficiently informed and effective. It requires more than notification of the proposed detention. The nearest relative must be given accurate information about the relevant role, rights and practical alternatives, including the consequences of maintaining an objection. A withdrawal of objection may be ineffective where it results from misleading information about those matters. Whether consultation is sufficient remains fact-sensitive. An application made without sufficient consultation, or without an effective withdrawal of objection, is unlawful.

The claimant was detained for treatment under section 3 of the Mental Health Act 1983. His mother, the nearest relative, initially objected but withdrew her objection after discussions with the approved mental health professional. The claimant sought habeas corpus, contending that the application was unlawful because his mother had not been properly consulted and had been misled about the need for legal representation and the consequences of maintaining her objection. The central issue was whether the defendant had proved that the section 3 application had been lawfully made.

1. The defendant bore the burden of proving, on the balance of probabilities, that the application for detention was lawful. If the application was unlawful, the detention was unlawful, consistently with TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4.
2. Consultation under section 11(4) of the Mental Health Act 1983 requires more than informing the nearest relative of the proposed application. It requires a genuine and effective opportunity to express views, with accurate information about the nearest relative’s role and rights. The guidance in paragraph 4.64 of the Code of Practice was relevant, although it did not impose an independent legal duty to comply with every detail.
3. Where the nearest relative objects, the section 3 application cannot proceed unless the objection is withdrawn or the nearest relative is displaced under section 29. The nearest relative should be told that maintaining the objection would halt the application initially, that a displacement application could be defended personally, and of any relevant practical delay and interim consequences.
4. A withdrawal of objection can be vitiated by misleading advice. On the facts, the mother had been led to believe that she required a solicitor to maintain her objection. She had not been properly informed of the effect of a displacement application, including the continuation of the section 2 detention during the Christmas court closure.
5. The consultation was therefore insufficient and the withdrawal was not full or effective. The application for habeas corpus was granted and a writ for the claimant’s immediate release from section 3 detention was ordered. The judgment was confined to its unusual facts and did not prescribe a universal form of consultation.

First-instance application for a writ of habeas corpus. No prior appellate decision in the same proceedings was stated.