19.43Dewen v Barnet Healthcare Trust and Barnet LBC (2001) 4 CCLR 239, CA
Approved mental health professionals are under a duty of honesty, not of reasonable enquiry
Facts: before detaining Mr Dewen, under section 3 of the MHA 1983, the approved social worker consulted his youngest daughter, as his nearest relative, under section 26: she did not object to the detention. Mr Dewen then sought a judicial review of the lawfulness of his detention, on the basis that his true nearest relative was his son, who was older than his daughter, and section 26 placed the elder before the younger.
Judgment: the Court of Appeal (Otton LJ and Hooper J) rejected Mr Dewen’s case: the approved social worker had not been under a duty of reasonable enquiry, but of honesty, and consequently had discharged the duty to consult the person ‘appearing to be the nearest relative’. In any event, carers displaced other relatives and the younger daughter fell within that description: it was only necessary to provide more than minimal care, for these purposes:
The question which this court has to consider is not, in deciding whether the application for determination for treatment was validly made, whether Mr Millington, the approved social worker, consulted with the person who was legally correct as the ‘nearest relative’, but whether Lorraine Dewen appeared to him to be that relative. That, to my mind, is a correct analysis of section 11(4). This section and subsection has to be construed strictly. It involves the liberty or loss of liberty of a person, particularly a person under a mental disorder. It imposes no duty of reasonable inquiry on Mr Millington in relation to deciding who is the nearest relative. I accept Mr Foster’s argument on behalf of the respondent that such an imposition would, in the circumstances in which most decisions have to be made, be an intolerable one. It is not surprising that Parliament did not impose it. In support of that contention, he referred to the decision of Whitbread v Kingston and District NHS Trust 1998 39 BMLR 94, and in particular a passage at pages 101–102. Accordingly, as I assess the situation, the court cannot and should not inquire into the reasonableness of Mr Millington’s decision, only into the honesty of his assertion that it appeared that Lorraine Dewen was the nearest relative. His honesty has not been impugned.