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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> TW v London Borough of Enfield & Anor [2013] EWHC 1180 (QB) (08 May 2013) URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/1180.html Cite as: [2013] EWHC 1180 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
TW |
Applicant |
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- and - |
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LONDON BOROUGH OF ENFIELD |
Respondent |
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- and - |
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SECRETARY OF STATE FOR HEALTH |
Intervener |
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Amanda Weston (instructed by Solicitor, London Borough of Enfield) for the Respondent
Jeremy Johnson QC (instructed by Litigation Division, Department of Health) for the Intervener
Hearing dates: 29 & 30 April 2013
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Crown Copyright ©
Mr Justice Bean:
The facts
"I did call to speak to TW's nearest relative but was informed Mr W was not around but that I could ring back at 1400 hours to speak to him as he would be available then. When I spoke to him later he stated that he believed the assessment had been triggered by a complaint from his wife and that he did not see the point of trying an assessment because TW would not allow anyone access to her flat. I noted his objection to the assessment and passed the information to the duty ASW for follow-up; however, as stated above a different course was taken and the assessment did not proceed. I confirm that at the point when I contacted Mr W I was unaware of the TW's specific instructions. As it happened I was not the ASW who would be making the assessment and application for admission and I had no further involvement with the case after 14/05/2007."
"Please could you personally reply to this letter yourself as I have complained about this breaking of patient confidentiality for many years and it is still going on. I have spoken to a solicitor for advice and they have told me Chase Farm is breaking the law. They are willing to take on my case, but I am waiting for your response first. Chase Farm are causing more arguments in the family which has already strained our relationships and is making my OCD worse and migraines and gynaecological problems. I would like to make a formal complaint about Christine Drew, Dr Duignan and Avi Nundoo about breaking patient confidentiality which is the law, by giving information to my Mum and Dad about what is going on between me and Chase Farm."
"If I get a new psychiatrist or change of Social Worker/CPN in the near future, which I am hoping for, I do not under no circumstances want Mum, Dad or brother knowing their names. No meetings with my family. My Dad threatened to smash my face in once again on the phone on my birthday and my Mum was making it worse. [VC] would like to be my next of kin and nearest relative. [She] has been getting my shopping for me for the last 11 months and my tablets and my other friends and milkman the year before that. My Mum and Dad have only brought my shopping once in the last two years. I would like my Mum to be taken off as my next of kin and my Dad off as the nearest relative."
"Due to Ms [W's] statement/letter regarding her mother and father sexually abusing her in the past it was felt it was not reasonably practicable to consult the N/R father."
"At the time of the assessment Miss [W's] clearly stated wish was that neither myself or any other members of the team have contact with her parents. Miss [W] had a difficult relationship with her parents. She often complained that there were frequent arguments between them which caused her considerable stress and mental health problems. She also told me that her father had been verbally and physically aggressive towards her. Her reaction to the involvement of her parents had been distress, anger and anxiety which led her to express her problems in trusting her clinical team. As professionals we were acutely aware of the impact on Miss [W] of further distress and emotional upset as well as her rights to confidentiality and her private life."
"29th June 2007 was the day I was sectioned. More than nine people, including three police officers, doctors [and] officers from Environmental Health to section me. I was upstairs about to wash my hair and therefore when they knocked on the door I did not come to the door straightaway. They smashed my door in and humiliated me in front of all my neighbours. I was extremely frightened and felt totally helpless. As I did not recognise anyone in particular I shouted out aloud to them to call my parents. They must have heard me but simply ignored my requests."
The Mental Health Act 1983
"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."
"(1) No person shall be liable, whether on the grounds 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 unless the act was done in bad faith or without reasonable care.
(2) 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 ."
By s 139(4) claims against the Secretary of State or a health authority such as the Trust are excluded from both these provisions.
The procedural history of the claim
"The Court notes at the outset that the Applicant pursued his complaints under Article 6 (1) of the Convention through four tiers of the domestic courts, which gave considered and detailed judgments. In contrast, the issues arising under Article 14 taken in conjunction with Article 6 (1) have never been raised before the domestic courts. The applicant has failed to explain in any detail why he considered that domestic proceedings were effective in respect of his Article 6 (1) complaint but would be ineffective in respect of his Article 14 complaint."
The test for leave under Section 139 (2)
".. is intended to strike a balance between the legitimate interests of the applicant to be allowed at his own risk as to costs, to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process and the equally legitimate interests of the Respondent to such an application not to be subjected to the undoubted exception risk of being harassed by baseless claims by those who have been treated under the Acts. In striking such a balance the issue is not whether the Applicant has established a prima facie case nor even whether there is a serious issue to be tried, although that comes close to it. 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."
In Seal Lord Bingham summarised this by saying that the threshold for obtaining leave "has been set at a very unexacting level. An applicant with an arguable case will be granted leave."
The compatibility of Section 139 (2)
"the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, birth or other status."
"It was submitted for Mr Seal in the House, although not below, that the effect of section 139(2) was to infringe his right of access to the court held by the European Court in Golder v United Kingdom (1975) 1 EHRR 524 to be implied in article 6 of the European Convention on Human Rights. This is not an argument I can accept. The European Court has accepted that the right of access to the court is not absolute, but may be subject to limitations: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57. The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective: ibid, para 58; M v United Kingdom (1987) 52 DR 269, 270. What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right."
The requirements of an arguable case under s 139
The meaning of "not reasonably practicable" under s 11 (4)
"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 [process] 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."
"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."
"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 by 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."
"So in the Applicant's case, prima facie, the approved social worker is obliged to inform the nearest relative under subsection (3) and consult with her under subsection (4). If such were to happen it would be against the Applicant's express wishes and it could harm her health. Furthermore, in my judgment such contact with Mrs S would either be futile, as Mrs S would take no interest in the matter, or it might give Mrs S the opportunity to interfere even benevolently, as she might see it, in the life of the Applicant.
However, within both subsections (3) and (4) are the words "as are practicable" and "not reasonably practicable" respectively. Can these words be so legitimately interpreted so as to [relieve] the approved social worker, in the instant case, of having to inform, under subsection (3), and/or consult, under subsection (4), with Mrs S. In my judgment they can, for the reasons which I will now give.
Section 3(1) of the Human Rights Act 1998 requires the court, in construing section 11 of the Mental Health Act, so far as possible, to interpret it in a way which is compatible with the Applicant's rights under the European Convention. In my judgment that is perfectly possible. Indeed, even without that statutory imperative, "practicable" and "reasonably practicable" can be interpreted to include taking account of the Applicant's wishes and/or her health and well-being."
Conclusion