TW v Enfield Borough Council

The duty under section 11(4) of the Mental Health Act 1983 to consult the nearest relative is not limited to cases where consultation is physically possible. Its likely consequences may be considered. Where consultation may interfere with a patient's private life, the decision-maker must balance the patient's Article 5 and Article 8 rights and assess proportionality objectively, allowing an appropriate margin of judgment. A patient's wish for confidentiality, or the approved social worker's conclusion that consultation would cause distress, does not automatically make consultation not reasonably practicable. If there is an arguable case that consultation was required, leave to bring a civil claim under section 139(2) should be granted.

TW, who suffered from obsessive compulsive disorder, was compulsorily admitted to hospital under the Mental Health Act 1983 after an approved social worker applied for admission without consulting TW's father as her statutory nearest relative. TW was detained for 77 days and sought damages for unlawful detention and psychiatric injury.

Because leave under section 139(2) had not initially been obtained, TW applied to the High Court for permission to sue Enfield Borough Council. Bean J refused leave, relying on the reasoning in R(E) v Bristol City Council and concluding that consultation was not reasonably practicable because it would cause distress and affect TW's health. The appeal concerned the proper construction of that expression and whether TW had an arguable case that consultation should have occurred.

Appeal allowed. Leave was ordered under section 139(2) of the Mental Health Act 1983 for TW to bring her claim against Enfield.

1. Construction of section 11(4). The expression reasonably practicable means more than physically possible. The approved social worker may consider the likely consequences of consultation. The word must have sufficient elasticity to accommodate the circumstances in which mental-health powers are exercised. The court accepted that domestic-law analysis in R(E) v Bristol City Council [2005] EWHC 74 (Admin) and the comparable approach in R(M) v Hackney LBC [2011] 1 WLR 2873.
2. Convention-compatible construction. Under section 3(1) of the Human Rights Act 1998, section 11(4) had to be construed compatibly with Articles 5 and 8. Detention following an application under sections 3 and 13 is lawful only if the statutory procedure is properly followed. Consultation is an important safeguard, but it may conflict with the patient's Article 8 right to privacy and medical confidentiality.
3. Proportionality. Any interference with Article 8 rights must be lawful, pursue a legitimate interest such as protection of health or the rights of others, and be necessary and proportionate. Proportionality is judged objectively by the court, although the decision-maker receives a wide margin of judgment. A patient's assertion that consultation would infringe Article 8, or the approved social worker's conclusion to that effect, cannot automatically establish that consultation is not reasonably practicable.
4. Application and disposal. The Convention-rights analysis in R(E) was incomplete and was not followed, although its domestic construction of practicable was accepted. The Code of Practice provisions concerning consultation were also incomplete or incorrect in law to the extent that they omitted the Article 5 and Article 8(2) analysis. There was an arguable case that the approved social worker had acted on the wrong legal basis. Whether consultation was justified and proportionate required careful factual analysis and could not be determined summarily. Clarke LJ and Arden LJ agreed; Arden LJ described the construction exercise as single and unitary.

1. Court of Appeal (Civil Division). The appeal was allowed and TW was granted leave under section 139(2) of the Mental Health Act 1983 to bring her claim against Enfield.
2. High Court, Queen's Bench Division. Bean J refused leave, holding that consultation with TW's father was not reasonably practicable ([2013] EWHC 1190 (QB)).