34. This case is concerned with an application for admission for treatment made by an approved social worker, namely Mr Scheuring. The complaint, as I have said, is that he failed to comply with the mandatory requirements of section 11(4) of the Act. It is plain, on the authority of In re S-C (Mental Patient: Habeas Corpus) [1996] 1 QB 599, that a failure to comply with these provisions renders the subsequent detention for treatment unlawful. Section 11(4) contains two distinct parts. The first is that if the nearest relative objects to the application for admission for treatment, that application shall not be made. That is why the question of whether GD’s father objected on this occasion is of importance and was explored at length in evidence.

35. It should be noted, however, that there are other provisions within the Act which enable objections to be overridden in certain circumstances, and also for those responsible for the treatment of somebody considered to be in urgent need of attention to use other mechanisms.

36. The second requirement is that no such application shall be made, except after consultation with the person appearing to be the nearest relative, unless:

‘… it appears to that social worker that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay.’

37. There is no issue in this case but that GD’s father was the nearest relative. That was known to Mr Scheuring. I am not therefore concerned with the statutory definition of ‘nearest relative’, nor with a dispute about whether the social worker had identified the correct nearest relative and the basis upon which he did so. It is to be noted, however, that section 11(4) requires consultation with the person ‘appearing to be the nearest relative’ and it also relieves the social worker of that obligation if ‘it appears’ that consultation is not reasonably practicable and so forth.

38. It is plain that the language of the subsection is directed towards the subjective knowledge of the social worker concerned. Indeed, for Parliament to have imposed an objective test in those circumstances would have been unduly oppressive and probably counterproductive.

39. In what circumstances can the view of the social worker on these matters be challenged? In Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848, the Court of Appeal was concerned with the issue which arose because the social worker consulted someone who turned out not to be the nearest relative, but who appeared to the social worker to be so. In paragraphs 15 and 16 of his judgment, Otton LJ dealt with the matter:

‘(15) The question which this court has to consider is not, in deciding whether the application for determination for treatment was validly made, whether Mr JM, the approved social worker, consulted with the person who was legally correct as the ‘nearest relative’, but whether L appeared to him to be that relative. That, to my mind, is a correct analysis of s 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 JM 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 101–102. Accordingly, as I assess the situation, the court cannot and should not inquire into the reasonableness of Mr JM’s decision, only into the honesty of his assertion that it appeared that L was the nearest relative. His honesty has not been impugned.(16) We have to ask the following question: Was his decision, in concluding that L was the nearest relative, plainly wrong?’

He went on to conclude on the evidence that there was much which made it appear in that case that the person consulted by the social worker was the nearest relative. The complaint was thus not upheld.

40. In R (WC) v South London & Maudsley NHS Trust [2001] EWHC 1025 (Admin), [2001] 1 MHLR 187, Scott Baker J (as he then was) came to a similar conclusion, confirming that the test was a subjective one with which the court would not interfere unless, for example, the social worker had failed to apply the legal test in section 26, which explains who is to be regarded as the nearest relative, or acted in bad faith or in some way reached a conclusion which was plainly wrong.

41. What both these judgments demonstrate is no more than a well-recognised proposition that when a statute imposes a subjective test of the sort one sees in section 11(4) of the Act, this court will not interfere with the decision made save on well-recognised public law grounds.

42. Furthermore, in that review exercise, given the circumstances engaged in cases of this sort, the court will inevitably be sensitive to the difficulties faced be those who have to make difficult decisions, sometimes in fast-moving and tense circumstances. The question might be, for example, whether it was open to the decision-maker on the information available to him to reach the conclusion he did. In both Re D and the case of WC the court used the words ‘plainly wrong’ as shorthand for that concept.

43. Ms Street, who appeared, as I say, on behalf of the defendants, submitted that unless the assertion contained in Form 9, from which I have read, was dishonest, this court should not interfere. She focused on the word ‘dishonest’ because it had been found in paragraph 15 of the judgment of Otton LJ in Re D.

44. In my judgment, that is too austere an approach. The court should look at the question on a wider basis because it is concerned with the legality of the process. In doing so, the court will recognise that the decisions can only be questioned on a public law basis and, as I have already indicated, in an environment where some sensitivity to the difficulties faced by those making the decisions is required.

45. Scott Baker J alluded to bad faith. Misuse of power, which is an aspect of the same thing, would be another label that might be attached. Both are classic grounds of review which, if made out, would result in the process under consideration being adjudged unlawful. His reference to misconstruing section 26 was also an example of his recognising that a decision might be flawed because a wrong legal approach had been taken.

46. The duty to consult is one which exists to enable there to be a dialogue about the action proposed in respect of a mentally ill individual. The person consulted is entitled to have his views taken into account and, importantly, the consultation possess should enable the nearest relative to object to the proposed course if he wishes. The consultation must be a real exercise and not a token one. If an objection is made, it does not have to be a reasonable one. It does not have to be one which judged objectively is sensible. But it has the effect of stopping the proposed course of action, whilst of course not shutting out alternatives available under the Act.

47. Ms Street submits that as events unfolded, it was not reasonably practicable to make contact with GD’s father until the morning of the assessment. That being the case, it was not possible to engage in consultation before the application was made. To have delayed the application to enable consultation to take place would have resulted in unreasonable delay. So she submits that those matters were apparent to Mr Scheuring and his conclusion cannot be challenged.

48. Mr Simblet submitted that the evidence leads inexorably to the conclusion that there was no proper attempt to engage in consultation in this case at all. Mr Scheuring’s conclusion was thus flawed for that reason, because the statutory procedure was in effect sidelined. He emphasised that the role of the nearest relation is an important one under the legislation and that it cannot matter that the social worker concerned, as a result of information provided to him by colleagues, has formed the view that GD’s father was unlikely to be helpful. He submits that Mr Scheuring has candidly admitted that he delayed attempts to make contact with GD’s father and essentially boxed himself into the corner in which he found himself on the morning of Saturday, 14th June. Whilst he would accept that ordinarily there is no need to search uphill and down dale for the nearest relation, in this instance there was a calculated decision not to do so whilst the whole process was in its early stages and being set up. Thus, he submits, it could not have appeared to Mr Scheuring for the purposes of section 11(4) that it was not reasonably practicable to consult.

49. Furthermore, Mr Simblet submits that the events on the morning of Saturday, 14th June, provide further support for the submission that I have just summarised and possibly an additional point. There was, submitted Mr Simblet, absolutely no reason why the assessment had to take place immediately at the family home. Mr Scheuring was in possession of a warrant which entitled him to convey GD to a place of safety for the purposes of an assessment to be carried out there. So, he asks rhetorically, why not attempt to make contact with GD’s father, then convey GD to the unit, and only thereafter undertake the assessment and follow it by the application, if necessary.

50. It is quite clear, as was recognised by Mr Simblet on behalf of the applicant, that at all times Mr Scheuring and the other professionals were motivated only by what they perceived to be in the best interests of GD. His mother also shared that motivation and was desperately trying to confront a serious deterioration in her son’s health. But, submits Mr Simblet, that motivation cannot be used as a justification for what in effect was a circumventing of the statutory mechanisms found in section 11(4). Conflicts within families and between members of a patient’s family and the professionals are not uncommon, but there are other mechanisms available under the legislation to ensure that the patient is appropriately protected and treated.

51. I accept that Mr Scheuring and those who were engaged with him in the days leading up to the assessment and admission to hospital were motivated only by the best interests of the patient, GD. However, I have come to the conclusion, on both the written and oral evidence, that in seeking to protect the best interests of GD they calculated that they should do no more than nod in the direction of consultation as contemplated by section 11(4). They set in motion a course of events which was designed to leave consultation with GD’s father to the very last moment, and thus seriously inhibit the chances of his having any effective input into the process and the chances of his having an opportunity to make an objection. In those circumstances, what in my judgment they contemplated could not properly be considered consultation at all. In my judgment, this amounted to a misuse of power, albeit for the best of motives, that infected the application process from beginning to end.