2014 06 Mental Health

Tuesday 1 July 2014

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TW (Appellant) v Enfield London Borough Council (Respondent) & Secretary of State for Health (Intervener) [2014] EWCA Civ 362 (Arden LJ, Aikens LJ, Clarke LJ): On allowing the appeal the Court held that when it was an approved social worker's decision under section 11(4) of the Mental Health Act 1983 that it was not reasonably practicable to consult a patient's nearest relative before an application to admit them to hospital had to take into account a patient's rights under Article 8(1) of the European Convention on Human Rights not to be detained and her right to the confidentiality of her medical condition. Here the appellant (TW) appealed against a decision refusing permission to bring a claim against the respondent local authority for unlawful detention. TW suffered from obsessive compulsive disorder. An approved social worker applied for TW's compulsory admission to hospital. Under section 11(4) of the Mental Health Act 1983 the social worker should have consulted TW's father as her nearest relative before making the application, unless it was not "reasonable practical" to do so. The social worker decided that consultation was not "reasonable practicable" because TW had alleged sexual abuse by her father and had insisted that her case details should not be disclosed to her family, and the breach of confidence would be detrimental to TW's health. However T W applied for permission to bring a claim against the local authority for unlawful detention on the grounds that it had been reasonably practicable to consult her father, who would have objected to her admission. The judge, applying R. (on the application of E) v Bristol City Council [2005] EWHC 74 (Admin), held that the social worker had been entitled to regard consultation with TW's father as not reasonably practicable because it would have contradicted TW's express wish that her family not be told about her case and it might have affected her health. The court held that the construction of the word "practicable" in s.11(4) involved domestic law and human rights aspects, but they were part of a single unitary construction exercise. From the domestic law aspect, "practicable" meant more than physically possible, and it had to have sufficient elasticity to take account of the circumstances in which the powers of mental health professionals had been exercised. In considering what was reasonably practicable, it was legitimate to look at what might be the result of the proposed action.. The obligation to consult the nearest relative might result in a conflict between a patient's right to liberty under Article 5 of the European Convention on Human Rights and her right to respect for private life and correspondence under article 8. A psychiatric patient's right to maintain the confidentiality of her medical history and file had to be part of her article 8 rights. Section 11(4) of the Mental Health Act 1983 imposed on an approved social worker an obligation to strike a balance between a patient's article 5 rights not to be detained unless that was done by a procedure that was in accordance with the law and the patient's article 8(1) right to her private life. Where the obligation to consult the nearest relative would interfere with the patient's article 8(1) rights, the decision whether it was reasonably practicable to consult the nearest relative would depend on whether it was justified and proportionate in the circumstances. A patient's assertion, even if founded on fact and reasonable, that consultation would lead to an infringement of her article 8(1) rights could not lead automatically to a conclusion that it was not reasonably practicable to consult the nearest relative. Further nor was a social worker's conclusion that the patient's article 8(1) rights would be infringed enough to lead to a decision that there should be no consultation. Equally, it would be wrong to conclude that because consultation with the nearest relative would involve disclosure of the patient's case, that had to lead to a conclusion that it was not reasonably practicable to consult the nearest relative. Further the court noted that the analysis in R. (on the application of E) of the construction of s.11(4) by reference to article 8 had been incomplete, and in that respect that case should not be applied. Thus there was an arguable case that the decision not to consult had been made on the wrong basis and permission to bring a claim should have been granted. (Click here for the judgment).

TW was represented by Helen Curtis ed by Michael Paget. The Respondent was represented by Amanda Weston.

Aivaris Valenvaris v Lithuania QBD (Admin) (Unreported) (Cranston J): On dismissing the claim the court held that the extradition of an individual with mental health problems to Lithuania for theft of a considerable amount of money committed when he was 16 years old was not oppressive and did not breach his rights under article 8 of the European Convention on Human Rights 1950. The key issues in almost every case would be the preventive measures in place to prevent suicide. In this case the doctor had identified the appellant’s mental health problems and the risks associated with his extradition. However, he had also informed the court that he had responded well to treatment. There was no evidence that he would not receive treatment.

R (on the application of Haroon Aswat) v Secretary of State for the Home Department & United States of America (Interested Party)[2014] EWHC 1216 (Admin) DC (Lord Thomas LCJ, Mitting J): On allowing a claim for judicial review the court held that it was appropriate to quash the Secretary of State for the Home Department's decision not to withdraw an order for the extradition of a British citizen accused of having been involved in establishing and running a jihadi training camp in the United States. His extradition would have violated his rights under Article 3 of the European Convention on Human Rights 1950 because his health would have been put at real risk of severe deterioration. The court held that a consultant psychiatrist's evidence established at a minimum that the Claimants removal from hospital to a prison, even one with significant health provision, would put him at risk of relapse into an acute psychotic state. Despite the clarification of the likely pre-trial conditions of detention, there were inevitably still detailed gaps about the precise circumstances in which he would be detained. For example, it was still unclear whether he would be housed in a single cell and if so for how long in every 24 hours, or what his opportunities for contact with others and for the types of educational and recreational facilities available to him at his current hospital would be. It was noteworthy to observe that, if extradited, he would most likely be detained in a prison of which the primary purpose was to detain those awaiting trial on serious charges and not to treat and care for those with serious mental health problems. Adopting the same approach as the ECHR on the information now available, the instant court reached the same conclusion as the ECHR that the Claimant's health would be put at real risk of severe deterioration if he were extradited. The only means by which the ECHR's basic concerns could be answered were if the US offered an assurance to the secretary of state that, upon the Claimant's arrival in the US, he would be immediately transferred to a psychiatric referral centre and kept there unless and until the equivalent of his treating clinician determined that he could be transferred to another institution without compromising his health and safety, and if not, that he would be kept at the centre until trial. In those circumstances, it was appropriate to quash the secretary of state's decision not to withdraw the extradition order. (Click here for the judgment)

Nottinghamshire Health Care Trust v J [2014] EWHC 1136 (COP) (Holman J): The court was unable to make a declaration that treating doctors could, by virtue of section 63 the Mental Health Act 1983 override an advance decision made by a capacitous detained patient refusing specified medical treatment. The application had been made without notice to the patient, and the court could not judicially and responsibly rule without hearing and considering the arguments on both sides of the issue. (Click here for the judgment)

R (on the application of LH ) v Shropshire Council [2014] EWCA Civ 404 (Longmore LJ, McFarlane LJ, Lewison LJ): On allowing the appeal the court held that the Defendant local authority had breached its common law duty in failing to consult with the users of a day care centre and their carers before deciding to close the centre. LH was 63 years old and had a learning disability. She had been assessed as having substantial care needs and had been attending the centre two days a week. The local authority decided to close the centre after an assessment of its provision of services, as a result of budgetary constraints and encouragement from central government to give disabled people their own personalised budget. The local authority claimed that it had consulted widely and had made it clear that some centres would have to close. LH argued that she and others should have been consulted in relation to the closure of the particular centre they used. There was no statutory obligation to consult where day care services were withdrawn or substantially altered, but the local authority accepted that fairness required consultation with users. The issue was how specific that consultation should be. The court held that in the absence of any express or implied statutory duty to consult, the obligation stemmed from the expectation that a public body, making decisions affecting the public, would act fairly. If a local authority withdrew a benefit previously afforded to the public, it would therefore usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation required that there be a proposal, that the consultation took place before a decision was reached, and that responses be conscientiously considered. The question in the instant case was whether a proposal for reconfiguration of services provided to adult users, which made clear that some as yet unidentified day centres were going to have to close, was a sufficiently concrete proposal to put out for consultation, or whether it was necessary to mount a fresh consultation in relation to any individual centre which it sought to close. Further the common law duty to consult arose when a person had an interest which the law decided was one which was to be protected by procedural fairness (R. v Devon CC Ex p. Baker [1995] 1 All E.R. 73). The court held that not only did the court have to consider whether LH had an interest to be protected by procedural fairness, but also whether the procedure adopted by the local authority had been a fair one. Fairness was a matter for the court to decide. If fairness required the local authority to consult regarding individual closures, the local authority could not say that it could choose a method of consultation which by-passed the question whether a particular day centre should be closed. However, provided that the local authority consulted with the staff, users and relatives of a particular centre which was to be closed, the extent to which it could choose to consult more widely was essentially a matter for the local authority. In the instant case, the local authority had taken a great deal of trouble to explain its reconfiguration of adult day care and, in particular, the application of personalised budgets. The consultations undertaken in that respect were wide-ranging, and no doubt expensive and time-consuming to conduct. The local authority had only mistaken its obligations at the last stage, but the omission to consult the users and relatives of LH's day centre before closure had been unlawful (R. (on the application of Wainwright) v Richmond upon Thames LBC [2001] EWCA Civ 2062). Further the need to eliminate discrimination of the disabled, to advance equality of opportunity between persons having a disability and those who did not, and to foster good relations between disabled and non-disabled persons, were all matters to which the local authority "must have due regard" under section 149(1) of the Equality Act 2010. The services provided by the local authority and the widespread consultations that took place in relation to the reconfiguration of the adult day care services showed that it did have due regard to its duty in that respect. It could be said that the failure to consult about the closure of the centre showed that there was a failure to comply with its public sector equality duty, but there had been no wider failure than that. However, the day centre had closed and the staff had dispersed. In those circumstances, it would not be consonant to good administration to quash the closure decision or to order the local authority to conduct a further consultation about its closure. That would be an expensive and over-legalistic exercise which justice to LH did not require, especially as there was no reason to suppose that the local authority was not performing its duty to assist LH to find alternatives within her personalised budget. A declaration would be made that, in breach of its common law duty, the local authority had failed to consult the users of the centre and their carers before deciding to close the centre. (Click here for the judgment)

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