CV v South London and Maudsley NHS Foundation Trust  EWHC 742 (Admin)
(1) In cases involving consultation under s11(4), the AMHP is to be judged according to the circumstances as they appear to her at the time. (2) Given that the AMHP believed (albeit wrongly) that 7 hours remained of the s5(2) detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. (3) It was inappropriate for the AMHP to assume, based on a previous consultation, that the NR would not object. (4) Subsequent rectification under s15(1) could not be relied upon in the circumstances of this case
The Claimant was a 44-year old man whose diagnosis was unclear, but was most recently considered to have either schizotypal personality disorder or Asperger’s Syndrome. He was detained under s3 MHA 1983 on 31 December 2009 but the First Defendant's Bethlem Royal hospital itself discharged that detention because they considered the section papers defective. When the Claimant indicated that he would leave the ward, he was re-detained under s5(2) of the Act on 7 January 2010. He was subsequently re-detained under s3 on 11 January 2010.
The Claimant sent a letter of claim alleging in particular that the second detention under s3 was unlawful on various grounds and subsequently made an application for a writ of Habeas Corpus on 22 January 2010. On 4 February 2010 Sir Michael Harrison QC ordered that the London Borough of Croydon be joined as a party and provide a witness statement from their social worker.
Wyn Williams J, hearing the substantive application on 5 February 2010, focussed on the first of the four grounds of complaint, i.e. that the Second Defendant's Approved Mental Health Professional ("AMHP") had not consulted the Claimant’s Nearest Relative before making an application for detention under s3 MHA 1983 on 11 January, 2010. It was common ground that there had been no consultation on the second occasion, but the AMHP relied on s11(4)(b) of MHA 1983 which excuses such consultation if it would cause unreasonable delay. However, the AMHP formed her view as to “unreasonable delay” on the basis of a completely erroneous view of the situation on the ward, i.e. that the Claimant was lawfully detained there under s5(2) of MHA 1983, and made the application on that basis. On the day that the Claimant issued proceedings, the First Defendant purported to rectify the section papers under s15 of MHA 1983 to correct the erroneous facts.
After hearing oral evidence from the AMHP, Wyn Williams J decided the case on the basis of the AMHP's erroneous version of events, concluding that the wording "appears" and "in the circumstances" in s11(4)(b) required him to consider the AMHP's decision on the basis of the facts that the AMHP believed to be true at the time, and not the corrected circumstances as per the rectified section papers. In doing so, Wyn Williams J held — using the broader public law tests set out by Burnett J in GD v Hospital Managers of Edgware Community Hospital  EWHC 3572 (Admin) (QBD, 27 June, 2008; paras 41-45) — that the AMHP was "plainly wrong" to take the view that it would be unreasonable to delay to consult the Nearest Relative at a time when she thought that at least 7 hours of lawful detention under s5(2) remained. The AMHP had stayed on site at the hospital to do another assessment after the one in question, and it would have been reasonable for her to wait longer before by-passing this important statutory requirement. Other errors on the form as originally completed also undermined the Court's view of the coherence of her decision-making at the time in question. The AMHP conceded in evidence that she had been "rushed" at the time.
Wyn Williams J considered that the AMHP may have taken this short-cut because she was fairly sure (as proved to be the case) that the Nearest Relative would not object. That was not acceptable - the outcome should not be assumed.
The judge did not consider the AMHP's reasoning in the context of the actual circumstances, which were that the Claimant's detention under s5(2) had in fact expired the evening before the application, on 10 January 2010. This was not a fact known to the AMHP at the time, nor was it recorded in the application documents. It appeared that the AMHP had been given the wrong information by nursing staff on arrival at the ward.
The Claimant also argued that the purported rectification of the "true" facts 11 days later into a reasoning that was originally "plainly wrong" was invalid; it destroyed the nexus between the reasoning and its factual basis, so bringing the purported rectification under s15 within the "retrospective validation" prohibited by the Court of Appeal in Re S-C (Mental Patient: Habeas Corpus)  EWCA Civ 60.
At the close of the hearing, Wyn Williams J reserved to himself the Claimant's application for leave under s139 to bring an action for damages against the Second Defendant for unlawful detention and/or negligence. By s139(4) such leave was not required as against the First Defendant. After considering the matter on the papers, his Lordhsip granted "permission to institute proceedings against the Second Defendant for damages" on 22 February, 2010.
Final hearing - 5/2/10
Judgment and Costs - 8/2/10
For the Claimant: Matthew Seligman instructed by Steel & Shamash.
For the First Defendant: Vikram Sachedeva instructed by Ridouts.
For the Second Defendant: Martin Russell instructed by London Borough of Croydon.