TW v London Borough of Enfield & Anor

The threshold for leave under section 139(2) of the Mental Health Act 1983 is low: an arguable claim deserving investigation should proceed to trial. The court may nevertheless determine a clear legal issue without a trial where oral evidence cannot affect the result.

Under section 11(4), whether consultation with the nearest relative is “not reasonably practicable” is generally a subjective question of professional judgment. Where an adult patient has repeatedly and clearly expressed a wish that the relative should not be involved, and the approved professional reasonably considers that consultation would cause distress affecting the patient’s health, consultation may be treated as not reasonably practicable. Section 139’s leave requirement was compatible with Articles 6 and 14 of the Convention.

The applicant, who suffered from chronic obsessive compulsive disorder, sought leave under section 139(2) of the Mental Health Act 1983 to bring a damages claim against the London Borough of Enfield. She alleged that her compulsory admission for treatment in June 2007 was unlawful because the approved social worker had not consulted her father, who was her nearest relative.

She also sought a declaration that section 139(1) and (2) were incompatible with Article 6, read with Article 14, of the Convention. The Secretary of State for Health intervened on that issue. The central questions were whether the statutory consultation exception applied and whether leave should be granted.

1. Leave threshold. The threshold under section 139(2) of the Mental Health Act 1983 is whether the complaint appears to deserve the full investigation available at trial. An arguable case should ordinarily proceed. However, where a legal issue has been fully argued and does not depend on oral evidence, the court should decide it rather than defer it to trial.
2. Convention compatibility. The requirement to obtain leave restricts access to the courts but pursues the legitimate objective of protecting those responsible for the care of mental patients from harassment by litigation. The restriction did not impair the essence of the Article 6 right. Any differential impact on persons suffering from mental illness was objectively and reasonably justified, so the application for a declaration of incompatibility under Article 6 read with Article 14 was dismissed.
3. Section 11(4). Consultation with the nearest relative is ordinarily an important safeguard, and must be real rather than token. But the phrase “not reasonably practicable” concerns the decision-maker’s assessment in the circumstances. It permits account to be taken of the patient’s wishes, health and well-being.
4. Where an adult patient has clearly and repeatedly stated that a nearest relative should not be involved, and the approved professional considers that consultation may cause distress affecting the patient’s health, consultation may be regarded as not reasonably practicable. The court should review the decision on public law grounds, with sensitivity to the pressures of mental-health decision-making. A genuinely held but legally mistaken view cannot, however, justify an unlawful decision.
5. On the evidence, the applicant’s instructions were consistent, specific and not merely delusional. The professionals were entitled to conclude that consulting her father would cause serious distress. There was no real prospect that a trial would establish that their view was one they were not entitled to reach. It was therefore clear that consultation was not reasonably practicable.
6. Disposition. The claim against Enfield was bound to fail. Leave under section 139(2) was refused. The unpursued application concerning section 139(1) and the declaration of incompatibility were dismissed or withdrawn as stated in the judgment.

The judgment records that proceedings were initially issued in the Brentford County Court and were later transferred to the High Court because the issues required determination by a High Court judge. The proceedings were stayed pending the Strasbourg decision in Seal v United Kingdom, then restored and case-managed before the present determination.