19.52TW v Enfield LBC [2013] EWCA Civ 362, (2014) 17 CCLR 264
An AMHP need not consult a nearest relative when the patient objects, providing the AMHP balances the patient’s right to privacy (against the nearest relative) under Article 8 ECHR, with the patient’s right to liberty (which the nearest relative could support) under Article 5
Facts: the AMHP failed to consult TW’s nearest relative, her father, before applying for her compulsory admission, because TW alleged that her father had abused her sexually and had insisted that her case details should not be disclosed to her family. However, TW then sought to bring proceedings against the AMHP/local authority for unlawful detention, because of the failure to consult her father. She was initially refused permission to proceed.
Judgment: the Court of Appeal (Arden, Aikens and Clarke LJJ) allowed TW’s appeal, holding that the ‘reasonably practicable’ test in section 11(4) of the MHA 1983 required the AMHP to balance the patient’s right to liberty under Article 5 ECHR against her right to privacy under Article 8 but that it was arguable that, in this case, the AMHP had treated Article 8 as decisive:
51. 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. 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.
52. 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’.
53. 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 R (E) v Bristol CC [2005] EWHC 74 (Admin), [2005] 1 MHLR 2873 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.