TW v Enfield Borough Council

Neutral Citation Number: [2014] EWCA Civ 362 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT QUEEN’S BENCH DIVISION MR JUSTICE BEAN [2013] EWHC 1190 (QB) Case No: A2/2013/1400 Royal Courts of Justice Strand, London, WC2A 2LL Date: Thursday 27 th March 2014 Before : LADY JUSTICE ARDEN LORD JUSTICE AIKENS and LORD JUSTICE CLARKE - - - - - - - - - - - - - - - - - - - - - Between : TW - and - Enfield Borough Council - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Appellant Respondent Michael Paget & Helen Curtis (instructed by DH Law Ltd) for the Appellant Amanda Weston (instructed by London Borough of Enfield) for the Respondent Hearing date : 22/01/2014 - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Aikens : I. 1. A Synopsis and the Issue on this appeal. The appellant, whom I will call TW, suffers from Obsessive Compulsive Disorder (“OCD”). On 29 June 2007 an Approved Social Worker (“ASW”) employed by Enfield Borough Council (“Enfield”) made an application for TW’s compulsory admission to hospital, pursuant to section 13(1) of the Mental Health Act 1983 (“the 2. 3. 4. 5. 6. MHA 1983”).1 Under the version of the MHA 1983 then in force the ASW was obliged, pursuant to sections 13(5) and 11(4), to consult the person appearing to be the “nearest relative”2 of the patient before making this application. That person was TW’s father. In fact, TW’s father was not consulted before the application. This was because the ASW had decided that (in the wording of section 11(4)), “such consultation [was] not reasonably practicable or would involve unreasonable delay”. There is no challenge to the judgment of the medical professionals about the wisdom of having TW admitted to hospital on 29 June 2007, given her mental condition and her circumstances at the time. However, TW did not wish to be admitted, nor did she wish her family to be consulted by the medical team about this or even given details of her condition by them. There was evidence that if TW learned that her family had been given details that would cause her great distress and might damage her health. Members of the medical team and some police officers arrived at TW’s flat on 29 June 2007. TW would not let them in and she refused, to go to hospital. The police broke into her flat and she was forcibly removed to Chase Farm Hospital for treatment. TW was detained there for 77 days until released by order of the Mental Health Review Tribunal following an application by her father. On 28 June 2008 TW issued proceedings against a number of parties, including Enfield in its capacity as employer of the ASW who had made the application that TW be admitted to hospital and who had also made the decision that it was not reasonably practicable to consult TW’s father before making that application. The claim is for damages for unlawful detention and psychiatric injury. Enfield took two points in its defence document on the effect of section 139(1), (2) and (4) of the MHA 1983. First, Enfield said it could not be liable to TW for her detention unless it was demonstrated that the alleged act of wrongful detention complained of was done “in bad faith or without reasonable care”. Secondly, Enfield pointed out that TW, as a mental patient, could only bring civil proceedings for such a claim against it with the leave of the High Court. Thus, insofar as the claim related to Enfield, it was a nullity because no leave had been given.3 Eventually, after procedural complications and a considerable delay caused by matters that I do not need to go into, in January 2013 an application was issued in which TW sought the leave of the High Court, pursuant to section 139(2) of the MHA 1983, to bring the claim for damages for unlawful detention (or false imprisonment) and psychiatric injury against Enfield. Bean J handed down a judgment on 8 May 2013 in which he concluded that leave should be refused. He held that it had indeed not been not “reasonably practicable” within the meaning of section 11(4) of the MHA 1983 for Enfield (through its ASW) to consult TW’s father, being her “nearest relative”, before the ASW applied for TW’s admission for treatment on 29 June 2007. That was because to do so would have constituted an action by a public body that would have infringed TW’s right to her private life pursuant to Article 8(1) of the European Convention on Human Rights. Therefore Bean J held that the ASW had been entitled to make the application to have TW involuntarily admitted to hospital without consulting TW’s “nearest relative”. Thus any claim against Enfield (as the ASW’s employer) for unlawful detention of TW and any consequent psychiatric injury was bound to fail. 1 At the time of these events the applicable version of the MHA 1983 was that before it was amended by the Mental Health Act 2007. The effect of the relevant principal provisions applicable remain substantially the same after the amendments by the 2007 Act. 2 The term “nearest relative” is defined in section 26 of the MHA 1983 3 Relying on the House of Lords’ decision in Seal v Chief Constable of South Wales [2007] 1 WLR 1910. 7. II. 8. 9. Accordingly it would be pointless to grant TW leave to bring a claim against Enfield for unlawful detention or false imprisonment. On this appeal the issue before the court is whether Bean J correctly determined the ambit of the words “…not reasonably practicable” in section 11(4) of the MHA 1983, bearing in mind that the court is under a statutory duty, by section 3(1) of the Human Rights Act 1998, to read and give effect to section 11(4) (so far as is possible) in such a way as to give effect to the rights contained in the European Convention of Human Rights (“ECHR”) as set out in the Schedule to that Act. In this case the relevant Convention rights are those in Articles 5 and 8. The statutory provisions of the MHA 1983. I have set out the relevant provisions of the MHA 1983, as it was in force on 29 June 2007, in Appendix One to this judgment. I have also set out there sections 3 and 6 of the Human Rights Act 1998 (“HRA”) and Articles 5 and 8 of the ECHR as scheduled to the HRA. Therefore I need only briefly describe here the effect of the relevant statutory provisions of the MHA 1983. Pursuant to section 3, a patient may be admitted to a hospital and detained there in accordance with the Act’s provisions. By section 3(2)(a) an application for admission for treatment may be made on the grounds that a patient is suffering from mental illness and that “[her] mental disorder is of such a nature or degree which makes it appropriate for [her] to receive medical treatment in a hospital…”. By section 3(3) such an application has to be founded on the written recommendation of two registered practitioners. 10. Section 11(4) provides that such an application for admission for treatment must not be made by an ASW if the nearest relative of the patient has notified the ASW that he (the nearest relative) objects to the application being made. The remainder of the sub- section is at the heart of this appeal, so I will quote it here: “…without prejudice to the foregoing provision, no such application shall be made by such [an ASW] except after consultation with the person (if any) appearing to be the nearest relative of the patient unless it appears to that [ASW] that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay”. 11. Section 26 sets out how to determine which person will be the “nearest relative” of a particular patient. There is no dispute in this case that TW’s father was her “nearest relative” for the purposes of the MHA 1983. Under section 29 the county court has the power (upon application) to direct that the functions of “the nearest relative” be exercisable by someone other than the person who would be such under the terms of section 26. At various times TW had stated that she did not want her father to be her “nearest relative” for the purposes of the Act but, under the provisions of section 29 in force at the time, the patient could not apply to make a change. In R(M) v Secretary of State for Health4 Maurice Kay J described this inability of the patient to apply to remove or change the nearest relative as being a “striking feature” of the Act. 5 It has been remedied by amendments to section 29 that were made by the 2007 Act. 4 [2003] MHLR 348 at [6]. 5 In JT v UK, the ECtHR had recorded, in its judgment of 30 March 2000 ([2000] MHLR 254) that the UK government would amend the MHA to enable a mental patient to apply to court to change his/her “nearest relative”. That had not been done by the time of R(M) v SSH, but was subsequently done by the MHA 2007. 12. 13. 14. 15. 16. Under section 13(1) of the MHA 1983 it is the duty of an ASW to make an application for the admission to hospital of a patient within the area of the local social services authority by which that ASW was appointed (in this case Enfield) in any case where the ASW is satisfied that such an application ought to be made “…and is of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by [the ASW]”. Section 13(5) stipulates that any application made by an ASW under section 13 must not be in contravention of the provisions of section 11(4). Therefore, an ASW can only make an application under section 13(1) after consultation with the person appearing to be the nearest relative of the patient “… unless it appears [to the ASW] that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay”. Section 6(1) of the MHA 1983 provides that if an application for admission has been made in accordance with the terms of that Act then that is sufficient authority for the applicant or any person authorised by the applicant to take the patient to the hospital specified in the application. No further proof of the signature or qualification of the persons making the application or the necessary medical recommendations is needed: section 6(3). By section 6(2) the application is also sufficient authority for the managers of that hospital to detain the patient there “in accordance with the provisions of this Act”. The effect of the provisions of section 6, which are not directly relevant to the present appeal, were considered by this court in R(M) v Hackney London Borough Council.6 The heading to section 139 of the MHA 1983 is “Protection for acts done in pursuance of this Act”. It is clear that the aim of section 139(1) is to prevent frivolous claims being brought against “any person”. As a result of this court’s decision in R(M) v Hackney LBC,7 section 139(1) has to be read so that words to the effect of “or is otherwise unlawful because of a contravention of section 11(4)” are added at the end of the statutory words. The aim of section 139(2) is to provide an additional safeguard against frivolous claims being brought against persons or bodies other than those identified in section 139(4), to whom section 139 does not apply. That is why TW is able to proceed against other parties named in her claim, but cannot proceed against Enfield unless the court gives its leave. In Seal v United Kingdom8 the ECtHR stated that section 139 was a proportionate and balanced provision which provided important protection to local authority ASWs who were called upon to exercise their professional judgment in the best interests of vulnerable users of mental health services and the public and in accordance with their statutory duties. Thus section 139(2) was not in breach of a mental patient’s Article 6 rights. It will be clear from this brief survey of the provisions applicable at the time that sections 3 and 13 of the MHA 1983 granted an ASW the express statutory power to make an application that would, when carried out, deprive a patient suffering from a mental disorder of his or her personal liberty by a subsequent involuntary admission to hospital. At that time there was no provision in the MHA 1983 itself by which the patient herself could object to being involuntarily admitted as a patient following an application under sections 3 and 13. It was only the “nearest relative” who could do so under the Act by virtue of section 11(4). 6 [2011] 1 WLR 2873. 7 [2011] 1 WLR 2873 at [66] – [69]. 8 [2012] 54 EHRR 6 at [77] to [83]. 17. 18. In In re S-C (Mental Patient: Habeas Corpus)9 Sir Thomas Bingham MR described the needs and counterbalancing considerations that the MHA 1983 provisions on involuntary admission of mental patients were designed to meet. He emphasised the importance of mental patients only being compulsorily admitted and detained in accordance with the terms of the statute, whose provisions had to be followed with scrupulous care. If they are not then, as Toulson LJ said in R(M) v Hackney LBC,10 since the statute of Magna Carta11 a person can obtain redress where her right (confirmed by that statute) not to be unlawfully detained has been infringed, even though there is no provision in the MHA 1983 itself which enables her, personally, to do so.12 First, the person can claim habeas corpus to obtain release from detention; and, secondly he or she can bring a claim for damages for false imprisonment. The Department of Health has issued a Code of Practice in relation to the MHA 1983, pursuant to section 118. We were shown the version that has been current since Bennett J’s decision in R(E) v Bristol City Council, 13 which is an important decision in the context of the present case. (I will refer to the decision hereafter as “E”.) Paragraphs 4.56 to 4.63 of the Code are relevant to this appeal. I have set them out in Appendix Two to this judgment. The key paragraph is 4.60. This Code now uses terminology introduced by the MHA 2007, so that instead of referring to Approved Social Workers or ASWs, it refers to Approved Mental Health Professionals or AMHPs. III. Some further background facts as stated in the judgment of Bean J. 19. 20. 21. 22. TW lived alone in a flat in 2006 and 2007. She would not allow mental health staff to have access to it. However, through telephone conversations, in which TW would dictate letters to mental health staff, TW had made it clear that she did not wish them to have meetings with “her family” or “her parents”. On 10 May 2007 Enfield’s Team Manager Avi Nundoo advised TW’s mother by telephone that Enfield could not share any more information with her about TW’s care without TW’s consent. Despite this, on 14 May 2007 an ASW did speak to TW’s father, in his capacity as her “nearest relative”, after a decision had been taken to set arrangements in train for TW to be assessed under the MHA 1983 for admission to hospital. TW’s father said he did not see the point of trying to make an assessment as TW would not allow anyone into her flat. In fact, that assessment did not proceed. On 7 June 2007, after an incident which had resulted in the arrest of TW by the police and her subsequent release, TW dictated a letter to the Chief Executive of Barnet, Enfield and Haringey Mental Health NHS Trust (“the Trust”). In this TW complained about mental health workers “breaking patient confidentiality” by “giving information to my Mum and Dad about what is going on between me and Chase Farm”. TW said that there should be “no meetings with my family”. She said that she would like her father to be “taken off” from being her “nearest relative”. On 29 June 2007, Ms Sandra Muschett, an ASW employed by Enfield, applied under sections 3 and 13 for TW to be admitted to Chase Farm Hospital for treatment. Two doctors made their recommendation for this in accordance with section 3(3) of the MHA 1983. The application and recommendation were based on a deterioration in TW’s OCD, which had led her to allegedly hit a neighbour on 17 June 2007. 9 [1996] QB 599 at 603. 10 [2011] 1 WLR 2873 at [32] to [33] 11 Chapter 29: 25 Edw 1 c 1 (1297). 12 Section 23(2) of the MHA 1983 sets out who, under that statute, may apply for an order for the discharge of a mental patient admitted to hospital under its terms. 13 [2005] 1 MHLR 83. Because of her mental condition, TW had also been taking rubbish from her neighbour’s dustbins and putting it in her flat, which created a health and fire hazard. 23. Ms Muschett’s application suggested that TW had accused her father and her brother of sexually abusing her, although, as the judge emphasised and I repeat, there was no evidence of this. TW had also accused her father of hitting her. The application stated that TW had said that she did not want her father to be her “nearest relative”. Then, under a section heading “View of nearest relative”, Ms Muschett had written: “ Due to [TW’s] statement/letter regarding her brother and father sexually abusing her in the past it was felt it was not reasonably practicable to consult the N/R father”. 24. 25. There was evidence before Bean J that a colleague of Ms Muschett had noted that TW’s reaction to the involvement of her parents had been distress, anger and anxiety, which had led to TW stating she doubted whether she could trust her clinical team. The evidence continued: “As professionals we were acutely aware of the impact on [TW] of further distress and emotional upset as well as her rights to confidentiality and her private life”. As I have already noted, the result of the ASW’s application was the forcible removal of TW from her flat on 29 June 2007 and her admission to Chase Farm hospital where she was detained until 14 September 2007. IV. The judgment of Bennett J in E. 26. 27. The reasoning and decision of Bennett J in E are central to the arguments raised in this appeal. I should therefore refer to them in some detail before I consider the judgment of Bean J in the present case. E had suffered from mental illness for many years. Her “nearest relative” was her sister. However, E did not wish her sister to be involved with her care and E’s psychiatrist considered that it would be unhelpful to E’s mental health for the sister to act as “nearest relative”. Bennett J found that any contact with E’s sister would either be futile, because she would take no interest in her sister, or because it might give the sister the opportunity to interfere (even benevolently) in E’s life. In fact, E’s sister, who had not seen E for some long time, tried to delegate her authority as “nearest relative” to Bristol City Council, the relevant local authority. Despite this, the local authority considered it was not relieved of its duties under section 11(3) to inform the sister, as “nearest relative”, of any assessment to be made, and to inform her of any proposed application for admission for treatment, under section 11(4). E brought judicial review proceedings against the local authority and sought a declaration that it was unlawful for it or its ASW to notify or consult E’s sister, as “nearest relative” under either sections 11(3) or (4), without first obtaining E’s consent. Bennett J considered that, given the facts, the case turned on whether it would be “reasonably practicable” to inform or consult E’s sister, within the terms of section 11(3) and (4). The judge referred to a number of authorities that had discussed the meaning of “practicable” in other statutory contexts and he noted that in four cases judges had held that when considering whether a particular action was “practicable” a court was entitled to look at the likely consequences of the course of action proposed.14 14 The cases Bennett J considered on this issue were: Owen v Crown House Engineering Ltd [1973] 3 All ER 618 a decision of Griffiths J in the NIRC; Dedman v British Building & Engineering Appliances Ltd [1974] 1 WLR 171 (CA); Re P (Adoption)(Natural Father’s Rights) [1994] 1 FLR 771, a decision of Ewbank J and R(C) v South London and Maudsley NHS Trust and Mental Health Review Tribunal [2003] MHLR 280, a decision of Nicholas Blake QC. 28. 29. Bennett J referred to the then current Code of Practice published by the Secretary of State for Health, in which it stated (at paragraph 2.16) in relation to section 11(4): “practicability refers to the availability of the nearest relative and not to the appropriateness of informing or consulting the person concerned”. Bennett J decided that this paragraph of the Code of Practice misinterpreted “practicable” in the context of section 11(3) and (4) and had wrongly treated that word as being equivalent to “possible”. Moreover, he regarded that interpretation of the Code of Practice to be contrary to the authorities that he had referred to and also contrary to common sense.15 Thus Bennett J held that upon the correct construction of “practicable” in section 11(3) and (4), the court would be entitled to look at what the consequences of consultation with the nearest relative might be. That aspect of construction was not challenged before us. Bennett J further held that, upon the correct construction of the word in section 11(3) and (4), it was not “practicable” for an authority to inform or consult a “nearest relative” who intensely disliked the patient concerned or who might not act in her best interests. In that case the authority therefore had to carry out a “balancing act”. That was because the patient herself had no statutory power to object to either an assessment under section 11(3) nor an application for her admission to hospital for treatment pursuant to section 3 or 13. The “nearest relative” was, under the statutory scheme, the person who protected the interests of the patient.16 30. Bennett J continued, at [29]: “On the other hand, to confine practicability, as does the Code of Practice, is far too restrictive and could lead and, in my judgment, would lead to positive injustice in the breach of the claimant’s rights under Article 8. There is no reason to believe that an [ASW] will act otherwise than in the claimant’s best interests. The claimant, who is competent does not wish Mrs S to carry out the functions of the relative under the [MHA 1983]. In all the circumstances of the case, I would hold that it is not practicable for [the authority] to carry out its duty to inform under section 11(3) or to consult under section 11(4)”. 31. V. 32. It is worth noting that although Bennett J referred to the patient’s rights under Article 8, he did not allude to the circumstances when an infringement of that right can be justified under the terms of Article 8(2). Nor did he refer to the patient’s rights under Article 5 to liberty and security of person and the concomitant right not to be deprived of that liberty unless lawfully detained in accordance with a procedure prescribed by law that fell within one or other of the categories set out in Article 5(1). In our case the relevant paragraph is (e), which refers to the “lawful detention…of persons of unsound mind”. The judgment of Bean J. Bean J stated that there was no dispute before him on the test an applicant had to satisfy when seeking leave under section 139(2) of the MHA 1983 to bring a claim. It was laid down by Sir John Donaldson MR in Winch v Jones.17 Donaldson MR said the test was not whether the applicant had established a prima facie case, nor even whether there was a serious issued to be tried, although that came close to it. He said: 15 See [28] of the judgment of Bennett J. 16 [29]. 17 [1986] QB 296 at 305. “The issue is whether, on the material immediately available to the court, which, of course, can include material furnished by the proposed defendant, the applicant’s complaint appears to be such that it deserves the full investigation that will be possible if the intended applicant is allowed to proceed”. Bean J noted that this threshold had been further explained by Lord Bingham of Cornhill in Seal v Chief Constable of South Wales.18 In that case Lord Bingham said that the threshold for obtaining leave had been set at a “very unexacting test” which was that “an applicant with an arguable case will be granted leave”.19 There might be argument on whether the expressions of Lord Donaldson and Lord Bingham import different tests. But, for the purposes of this appeal, the parties agreed that Lord Bingham’s formulation should be adopted. Bean J next dealt with an argument that was not raised in this court, which is that this section 139 discriminated against TW, as a mental patient, in respect of her rights to have access to the courts, thereby infringing Articles 6 read together with Article 14 of the ECHR; and that such discrimination could not be “justified”. Bean J held that the restriction imposed by section 139 was justified within Article 14, so that it was not incompatible with the ECHR. Bean J then analysed the scope of the statutory obligation of an ASW under section 11(4) to consult the nearest relative before making an application under section 3 or 13 of the MHA and the circumstances in which such a consultation might be judged “not reasonably practicable” or involving “unreasonable delay”. In summary, his conclusions, which were based on a review of previous cases,20 were: (1) The consultation must be a real exercise and not a token one. (2) If an objection is taken by the “nearest relative” it does not have to be reasonable. (3) It is for the ASW to make his/her own subjective decision on whether a consultation with the nearest relative would or would not be “reasonably practicable” or would involve “unreasonable delay”. (4) If there is a challenge to the professional judgment of the ASW on whether consultation with the nearest relative was not “reasonably practicable” or would involve “unreasonable delay” in a particular case, the court must consider the question as one of public law. Therefore the judgment could only be challenged if “plainly wrong” or irrational or perverse. (5) However, if there is a challenge to the decision of the ASW not to consult the nearest relative because it was not “reasonably practicable” and that challenge involved a question of law, the court has to decide whether the decision of the ASW was right or wrong in law. (6) Section 11(4) and in particular the provision requiring consultation with the nearest relative before making an application to admit a mental patient, must be construed (so far as is possible) in a way that is compatible with the patient’s Convention rights. Bean J then referred more specifically to the decision in E, particularly to Bennett J’s judgment at [18] – [20], which he set out. After he had referred to those paragraphs in E, but not the later paragraphs, in particular [29] which I have set out above, Bean J stated at [47]: 33. 34. 35. 36. 18 [2007] 1 WLR 1910 at [20]. At [47] Baroness Hale of Richmond (who with Lord Woolf dissented in the result) adopted Donaldson MR’s test. Lords Carswell and Brown of Eaton-under-Heywood agreed with Lord Bingham. 19 See [20]. 20 Bean J considered: GD v Hospital Managers of Edgware Hospital [2008] EWHC 3572 where Burnett J had, in turn, referred to Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848 (Admin) and R(WC) v South London & Maudsley NHS Trust [2001] EWHC Admin 1025, [2001] 1 MHLR 187, and R(E) v Bristol City Council [2005] EWHC 74 (Admin). “I respectfully agree with this decision of Bennett J. I regard its ratio as being that when an adult whose mental health is in issue has clearly expressed the wish that her nearest relative is not to be involved in decisions about her case , and it appears to the [ASW] that to contradict that wish may cause the patient distress to the extent of affecting her health, the [ASW] is entitled to regard consultation with the nearest relative as not reasonably practicable”. 37. At [48] Bean J further emphasised that, in his view, Bennett J’s decision in E concentrated on the patient’s wishes, her health and “her Article 8 rights to a private life”. Bennett J’s decision was not dependent upon the attitude of the “nearest relative”. Bean J found that in the case of TW her objections to any involvement of her family were genuine and serious and treated as such by Enfield’s staff. He also noted the evidence that Enfield’s witnesses had concluded that any involvement of TW’s father on 29 June 2007 would have been likely to cause TW “distress and emotional upset”. Bean J regarded that as being a genuinely held belief of the ASW involved. He concluded, at [50] and [51], that there was “no real prospect of a trial with oral evidence leading to a finding that their view was one which they were not entitled to reach”. Accordingly, he held that it was “clear that it was not ‘reasonably practicable’ within the meaning of section 11(4) of the [MHA 1983] for Enfield to have consulted TW’s father before applying” for TW’s admission, so that any claim against Enfield for unlawful detention was bound to fail. Therefore he refused to grant leave to TW under section 139(2) of the MHA 1983 to enable her to bring a claim against Enfield. VI. The arguments of the parties on appeal. 38. Mr Michael Paget, on behalf of TW, submitted that Bean J had erred in several respects. First, he submitted that the judge had wrongly equated the facts in the present case with those in E. Secondly, Bean J had wrongly concluded that the fact that TW demanded complete patient confidentiality was sufficient to permit the ASW to conclude (subjectively) that it was therefore “impracticable” to consult TW’s father as her “nearest relative”. Thirdly, the judge erred in following E, which, he submitted, was wrongly decided and should be overruled. Mr Paget submitted that Bennett J had considered the patient’s right to a private life under Article 8(1), but he had not alluded to Article 8(2) and he had failed to consider the balancing exercise that had to be carried out if the court found that Article 8(1) was infringed by the action of a public body. Nor had Bennett J considered the patient’s rights under Article 5 of the ECHR. Fourthly, if the possible bases of interference with TW’s right to a private life had to be considered under Article 8(2) together with an analysis of TW’s rights under Article 5, it would be clear that there would be many factual issues that had to be examined and determined before it could be decided that it was not “practicable” for the ASW to consult TW’s father before making the application for the admission of TW for treatment. Fifthly, therefore, the judge erred in concluding that, if there were to be a trial with oral evidence, there would be no real prospect of a finding that the conclusion of the ASW on “practicability” was wrong in all the circumstances. 39. I am not sure how much, if any, critical analysis of E took place before Bean J. His judgment does not refer either to Article 8(2) or Article 5 of the ECHR. Nor were they referred to in Mr Paget’s Replacement Skeleton Argument dated 13 January 2014 which were prepared for this appeal. Those provisions of the ECHR were first adverted to in a Supplementary Skeleton Argument served on behalf of the appellant on 16 January 2014 with permission of Arden LJ pursuant to CPR 52CPD.21. Even then, although Mr Paget did submit that E should be confined to detentions made before the MHA 1983 had been amended by the 2007 Act, he did not mount a full frontal onslaught on the correctness of that decision. The suggestion that E might have been wrongly decided was only squarely raised for the first time in the oral argument before us and then largely as a result of debate between Mr Paget and the court.21 40. Miss Amanda Weston, for Enfield, emphasised that the ASW had concluded that it was not “reasonably practicable” to consult TW’s father as the nearest relative because of three factors in particular. These were, first, the allegation (although without any evidence) of abuse; secondly, the fact that TW did not wish any information to be given to her family, including her father, and that she would be medically distressed if that were done; and, thirdly, the ASW’s view that the nearest relative could not be consulted effectively without being given confidential information about the state of the mental health of TW. Miss Weston submitted that the argument based on Article 5 and Article 8(2) was misconceived because an examination of the statement that had been provided by the ASW (which was largely uncontroversial) demonstrated that she had, in fact, balanced her statutory obligations to consult the nearest relative with the impact on TW if she were to do so and that is all the law required her to do. 41. Miss Weston emphasised the fact that in R(M) v Hackney LBC, when Toulson LJ had examined the meaning of the word “practicable” when used in section 12(2) of the MHA 1983, he had cautioned against giving the word a comprehensive definition. Miss Weston noted that Toulson LJ had underlined that Parliament must have envisaged that the mental health professionals would have to discharge their responsibilities with proper regard for the interests of both the patient and society and sometimes in difficult or urgent situations. Therefore the word “practicable” had to have sufficient elasticity to accommodate those considerations consistently with the intention of parliament. Miss Weston submitted that the same principle applied to the use of the word “practicable” in section 11(4). VI. Analysis and conclusion 42. TW wishes to bring a claim against Enfield for her alleged unlawful detention for 77 days because, she wishes to argue, she was admitted and detained without regard to the proper procedures under sections 11(4) and 13(1) of the MHA 1983. That was because an application for her admission to hospital for treatment was made without her “nearest relative” being consulted. TW wishes to assert that it was “reasonably practicable” to do so and that if her “nearest relative” had been consulted he would have refused to permit the admission. There is no doubt that it would have been physically possible to consult TW’s father before the ASW made the application. There were three reasons why he was not consulted. First, because of the allegation (unproved and no evidence) of abuse of TW by him and TW’s brother; secondly, because of TW’s insistence that the details of her case be kept confidential and not disclosed to her family and, thirdly, because of the ASW’s view that she could not effectively consult TW’s “nearest relative” without disclosing that confidential information, which disclosure could have been detrimental to TW’s health. 21 The relevance of Article 5 to the admission and detention of mental patients for treatment under the terms of the MHA 1983 was considered by this court in R(M) v Hackney LBC to which Miss Weston, for Enfield, had referred in her written submissions. 43. 44. 45. 46. It seems to me, therefore, in agreement with Bean J, that a fundamental question in TW’s claim against Enfield for damages for unlawful detention will be to determine whether the ASW’s decision that it was not “practicable” to consult TW’s nearest relative before making the application under section 13(1) was correct. If it was practicable, then there would have been a breach of section 11(4) and so TW’s admission and detention would, prima facie, have been unlawful.22 Other questions may well arise about what happened after the application was made which may go causation and the measure of damages. But neither Bean J nor we have been concerned with them. If there is an “arguable case” that, upon the correct construction of the word “practicable” in section 11(4) and the facts of this case, the ASW should have consulted TW’s father (as “nearest relative”) before making the application under section 13(1), then leave to bring the claim against Enfield must be given. So, there are two issues to consider on this appeal. First, what is the correct construction of the words “reasonably practicable” and, secondly, whether, on the facts of this case, it is arguable that it was, in fact, “reasonably practicable” to have consulted TW’s father. The first question is the major one. There are two aspects to the construction of the word “practicable” in section 11(4) to consider, although as Arden LJ points out below, these are only two aspects of what is ultimately a “single, unitary exercise” of construction. First, there is what might be called “the domestic law” aspect of construction. In relation to this, I accept that the word “practicable” in section 11(4) means more than whether it is physically “possible” to consult the “nearest relative”. I also accept that, in considering what is “reasonably practicable” for the purposes of section 11(4), it is legitimate to look at what might be the result of the proposed action in order to determine whether that action is “reasonably practicable”. To that extent I agree with Bennett J in E. I would also respectfully agree with Toulson LJ’s statement in R(M) v Hackney LBC, at [81], that in the context of its use in the MHA 1983 (although he was considering its use in section 12(2) in the Act as amended) the word “practicable” must have sufficient elasticity to take account of the circumstances in which the powers of the mental health professionals have to be exercised. Secondly, there is the Human Rights Act aspect of the construction of section 11(4). Section 3(1) of the HRA 1998 requires that the obligation imposed by section 11(4) on an ASW to consult the “nearest relative” before making an application under section 13(1) and the exception created by the wording “unless it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay” must be construed (so far as possible) in a way which is compatible with the Convention rights of the person affected, viz TW in this case. In my view it is clearly possible to construe section 11(4) in a way that is compatible with the patient’s Convention rights. In fact, a mental patient’s Convention rights are involved as soon as it is contemplated that there might be an application to admit him or her for treatment under section 13(1). Immediately the patient’s Article 5 right not to be deprived of her liberty is in issue. Article 5(1) imposes a positive obligation on the Member State to protect the liberty of those within its jurisdiction.23 However, that is a qualified right. It can be infringed if the detention is “in accordance with a procedure prescribed by law” and is within one of the specific exceptions set out in Article 5(1), including that in paragraph (e), viz. 22 Compare R(M) v Hackney LBC [2011] 1 WLR 2873, where the admission was made despite the “nearest relative’s” known objection to the application to admit being made. 23 See Stanev v Bulgaria (2012) 55 EHRR 696 at [120], referred to in the judgment of Baroness Hale in P(by his litigant friend the Official Solicitor) v Cheshire West and Chester Council, Pand Q(by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19 at [25]. Lords Kerr and Sumption agreed with Baroness Hale and Lord Neuberger agreed also but gave a separate judgment. “the lawful detention of persons of unsound mind”. But that means that an ASW can only apply for the admission of a mental patient for treatment, which will lead to her detention, if the statutory procedure is properly conducted. So the patient’s Article 5 right not to be deprived of her liberty can only be infringed if the ASW consults the “nearest relative” under section 11(4), unless such consultation is not “reasonably practicable”. The obligation to consult the “nearest relative” may result in a conflict between two of the patient’s Convention rights, because section 11(4) in general and the words “not reasonably practicable” have to be construed in a way that is compatible not only with the patient’s Article 5 rights but also in a way that is compatible with the patient’s Article 8 right of respect for her private life and her “correspondence”. A mental patient’s right to maintain the confidentiality of her medical history and file and all the circumstances of her medical case must be a part of her Article 8 right to a private life. However, this Article 8 right is also a “qualified” right. Interference with Article 8(1) rights can be justified. As is now clearly established in many Strasbourg and English cases, to justify interference three things have to be established, assuming that the proposed interference would be of sufficient gravity to invoke Article 8(1). First, the interference must be in accordance with the law. In this case the relevant law is contained in section 11(4) itself. Secondly, the interference must be necessary in a democratic society in the interests of (amongst other things) “the protection of health” and “ the rights and freedoms of others”. In this case there are, in my view, two relevant interests to be taken into account. The first is the need to protect the health and wellbeing of TW in a manner that is itself in accordance with law. The second interest is comprised in the rights and interests of others, in particular, the rights of the “nearest relative” to be consulted pursuant to section 11(4) if “reasonably practicable”. The third requirement is that the step taken which does interfere with a person’s Article 8(1) right must be proportionate to the legitimate public end sought to be achieved. The basic reason for justifying an interference with the Article 8(1) rights of a patient to maintain confidentiality in her medical condition and to prevent the possibility of that breach of confidence causing the patient further distress and ill-health, would be to ensure that the patient’s other ECHR right under Article 5, not to be unlawfully detained “except in accordance with the law” is also upheld. In my view that objective would , as a matter of law, be capable of being a legitimate public aim for the purposes justifying an interference with the patient’s Article 8(1) rights. After all, as I have already pointed out, the consultation with the “nearest relative” is a vital safeguard for the patient who is faced with an application by an ASW to admit the patient for treatment. The patient herself has no statutory right to object to an ASW’s application that the patient be admitted to hospital for treatment provided the statutory procedure is correctly followed. As I have noted, the interference would be “in accordance with the law” because section 11(4) permits, indeed requires, consultation unless it is not “reasonably practicable”. In summary, it seems to me that, as a matter of construction of section 11(4), when an ASW is considering whether it is “reasonably practicable” to consult the “nearest relative” before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the ASW an obligation to strike a balance between the patient’s Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient’s Article 8(1) right to her private life. 47. 48. 49. 50. 51. 52. 53. 54. In a case where an ASW’s statutory obligation to consult the “nearest relative” under section 11(4) would constitute an interference with the patient’s Article 8(1) rights to private life, the decision of the ASW on whether it is or is not “reasonably practicable” to consult the “nearest relative” will depend on whether that is justified and proportionate to do so in the particular circumstances of the case. In the English cases on section 11(4) I have cited above it has been held that the issue of whether or not to consult will depend upon the subjective knowledge and judgment of the social worker concerned and that the court will not interfere with a decision save on well- recognised public law grounds. However, those decisions did not fully take into account the need to ensure that section 11(4) is interpreted (as far as possible) in a way compatible with the patient’s Convention rights. Normally, proportionality is not assessed by reference simply to the subjective conclusion of the person making the judgment.24 Nor, strictly speaking, is proportionality to be judged solely on “public law grounds”. However, a court will accord a decision-maker a wide margin of judgment as to what is proportional in a particular case. In some circumstances, of which the present case is an example, this balance will be a difficult exercise. But I think that my analysis demonstrates that one principle is clear: as a matter of construction of section 11(4), a patient’s assertion, even if founded on fact and even if reasonable, that consultation would lead to an infringement of her Article 8(1) rights cannot, as a matter of law, lead automatically to the conclusion that it is “not reasonably practicable” to consult the “nearest relative”. Nor is an ASW’s conclusion that such consultation would lead to an infringement of the patient’s Article 8(1) rights enough, in law, to lead to the decision that there should be no such consultation under section 114). Equally, as a matter of construction of section 11(4), it must be wrong in law for the ASW to conclude that because consultation with TW’s “nearest relative” would require disclosure of details of TW’s case and that would therefore constitute an interference with TW’s Article 8(1) rights, that must necessarily lead to the conclusion that it was “not reasonably practicable” to consult the “nearest relative”. It must also follow, with respect to Bennett J, that his analysis on the construction of section 11(4) by reference to the patient’s Article 8 rights was incomplete. In my view, in that regard E should not be followed. But, as I have stated above, I would accept what I might call Bennett J’s “domestic law” analysis and construction of section 11(4) and the word “practicable”. It is only the Convention rights aspect of construction in which he erred. I would also hold that, upon the correct construction of section11(4), paragraphs 4.60 and 4.61 of the Code of Practice must be incomplete. Both fail to refer either to the patient’s Article 5 right or the qualification to the patient’s Article 8(1) right enshrined in Article 8(2). Although paragraph 4.61 does emphasise that the ASW must consider all the circumstances of the case, it does not do so in the proper context of Article 8(2) and the patient’s Article 5 rights. To my mind paragraph 4.62 is also incorrect in law. The fact that a “nearest relative” has not been willing to be involved on previous occasions cannot detract from the fact that he/she retains the statutory right to be consulted by the ASW on each relevant occasion, unless it is “not reasonably practicable” to do so. 55. This leads on to the second issue: is there an arguable case that, given my construction of section 11(4), it was, indeed, “reasonably practicable” for the ASW in this case to consult TW’s father as her “nearest relative”. By section 6(1) of the HRA, it is unlawful for a public authority to act in a way that is incompatible with a 24 As Lord Bingham of Cornhill stated in R(SB) v Governors of Denbigh High School [2007] 1 AC 100 at [30]: “Proportionality must be judged objectively by the court”. Convention Right. The ASW therefore had to make her decision on whether or not to consult TW’s “nearest relative” upon the proper construction of section 11(4), taking into account of the patient’s two Convention rights. In my view, on what is known of the reason for the ASW’s decision not to consult, there is obviously an arguable case that the decision was not made on the right basis. Whether the decision not to consult was, in all the circumstances, correct, must ultimately depend upon a careful analysis of the facts. In my view that is not something that can be determined summarily in this case. 56. It must follow that leave to bring the claim against Enfield pursuant to section 139(2) should have been given. Therefore the appeal must be allowed. VII. Disposal 57. For the reasons I have given, I conclude that Bean J erred in deciding, as a matter of law, that it was not “reasonably practicable” for Enfield to have consulted TW’s father before the ASW made the application for TW’s admission for treatment. In fairness to him, it would appear that the ECHR arguments which I have had to deal with were not fully canvassed before him. 58. I would allow the appeal and make an order that TW be given leave to bring a claim against Enfield pursuant to section 139(2) of the MHA 1983. Lord Justice Christopher Clarke: 59. I agree. Lady Justice Arden: 60. I also agree with the judgment of Aikens LJ and I am grateful to him for dealing with the matter comprehensively. I add one small point. I regard the construction of section 11(4) as a single, unitary exercise and so while Aikens LJ has spoken of domestic and human rights interpretation as if they were separate exercises, I see that division simply as a way of highlighting the effect of the Convention in this case. Where the court is required to construe a statutory provision so as to be compatible with the Convention, that is the only interpretation exercise which it carries out. Appendix I Mental Health Act 1983 as in force on 29 June 2007: 3 Admission for treatment (1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section. (2) An application for admission for treatment may be made in respect of a patient on the grounds that— (a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and (b) (c) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section. (3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include— (a) (b) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (b) of that subsection; and a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate. …………………… 11 General Provisions as to applications (1) (4) Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment and a guardianship application may be made either by the nearest relative of the patient or by an approved social worker; and every such application shall specify the qualification of the applicant to make the application. … Neither an application for admission for treatment nor a guardianship application shall be made by an approved social worker if the nearest relative of the patient has notified that social worker, or the local social services authority by whom that social worker is appointed, that he objects to the application being made and, without prejudice to the foregoing provision, no such application shall be made by such a social worker except after consultation with the person (if any) appearing to be the nearest relative of the patient unless it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay. ……………………………. 13 Definition of Duty of approved social workers to make applications for admission or guardianship (1) It shall be the duty of an approved social worker to make an application for admission to hospital or a guardianship application in respect of a patient within the area of the local social services authority by which that officer is appointed in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him. … (5) Nothing in this section shall be construed as authorising or requiring an application to be made by an approved social worker in contravention of the provisions of section 11(4) above, or as restricting the power of an approved social worker to make any application under this Act. …………………………… 26 Definition of “relative” and “nearest relative” (1) In this Part of this Act “relative” means any of the following persons:— (a) (b) (c) (d) (e) (f) (g) (h) husband or wife; son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece. … (3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex. …………………… 139 Protection for acts done in pursuance of this Act (1) (2) (4) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care. No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions. This section does not apply to proceedings against the Secretary of State or against a [Strategic Health Authority,] [Local Health Board] [, Special Health Authority or Primary Care Trust] [or against a National Health Service trust established under [the National Health Service Act 2006 or the National Health Service (Wales) Act 2006]] [or NHS foundation trust]. Human Rights Act 1998 3 Interpretation of legislation (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section— (a) (b) (c) applies to primary legislation and subordinate legislation whenever enacted; does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility. …………………… 6 Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) (b) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section “public authority” includes— (a) (b) a court or tribunal, and any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) … (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) “An act” includes a failure to act but does not include a failure to— (a) (b) introduce in, or lay before, Parliament a proposal for legislation; or make any primary legislation or remedial order. European Convention on Human Rights Article 5 – Right to liberty and security (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (2) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; … (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Article 8 – Right to respect for private and family life (1) (2) Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Appendix II Mental Health Act - Code of Practice The AMHP and the nearest relative 4.56 AMHPs are required by the Act to attempt to identify the patient’s nearest relative as defined in section 26 of the Act. 4.57 When AMHPs make an application for detention under section 2, they must take such steps as are practicable to inform the nearest relative that the application is to be (or has been) made and of the nearest relative’s power to discharge the patient. 4.58 Before making an application for detention under section 3, AMHPs must consult the nearest relative, unless it is not reasonably practicable or would involve unreasonable delay. 4.59 Circumstances in which the nearest relative need not be informed or consulted include those where:  it is not practicable for the AMHP to obtain sufficient information to establish the identity or location of the nearest relative, or where to do so would require  an excessive amount of investigation involving unreasonable delay; and consultation is not possible because of the nearest relative’s own health or mental incapacity. 4.60 There may also be cases where, although physically possible, it would not be reasonably practicable to inform or consult the nearest relative because there would be a detrimental impact on the patient which would result in infringement of the patient’s right to respect for their privacy and family life under article 8 of the European Convention on Human Rights and which could not be justified by the benefit of the involvement of the nearest relative. Detrimental impact may include cases where patients are likely to suffer emotional distress, deterioration in their mental health, physical harm, or financial or other exploitation as a result of the consultation. 4.61 Consulting and notifying the nearest relative is a significant safeguard for patients. Therefore decisions not to do so on these grounds should not be taken lightly. AMHPs should consider all the circumstances of the case, including: 4    the benefit to the patient of the involvement of their nearest relative; the patient’s wishes (taking into account whether they have the capacity to decide whether they would want their nearest relative involved and any statement of their wishes they have made in advance); any detrimental effect that involving the nearest relative would have on the patient’s health and wellbeing; and  whether there is any good reason to think that the patient’s objection may be intended to prevent information relevant to the assessment being discovered. 4.62 AMHPs may also consider the degree to which the nearest relative has been willing to be involved on previous occasions, but unwillingness to act previously should not automatically be taken to imply current unwillingness. 4.63 If they do not consult or inform the nearest relative, AMHPs should record their reasons. Consultation must not be avoided purely because it is thought that the nearest relative might object to the application.