Consulting NR

The new database structure introduced in 2019 is more useful than this Category page: see Special:Drilldown/Cases.

The pages below are initially ordered according to the dates on which they were added to the site (most recent first). The order can be changed by clicking on the symbol beside a column heading: click on the symbol beside "Page and summary" for alphabetical order; click beside "Categories" for the order in which the cases were reported. Click on the arrow symbol again to reverse the order. Click on a page name to view the relevant page. Asterisks mark those cases which have been added to the new database structure.

Case and summary Date added Categories
GP v Derby City Council [2012] EWHC 1451 (Admin), [2012] MHLO 58The claimant applied for a writ of habeas corpus, challenging the AMHP's decision not to consult the nearest relative (under s11) before making a s3 application. The AMHP's evidence was that, having tried to telephone the NR on five or six occasions, he dispensed with consultation because nursing staff were anxious about the patient's presentation and needed him on s3 to move him to a psychiatric intensive care unit. (1) The question which arises on an application of this sort is whether the AMHP's decision was plainly wrong, or whether it was within the range of appropriate decisions available. (2) In the circumstances his decision was unlawful, in particular because: (a) the notes showed that the claimant had essentially been stable (and, in the event, had not been transferred to the PICU for over two weeks after the s3 began); and (b) the s3 assessment finished about 4.30pm and the s2 was due to expire at midnight, so to drive about 30 minutes to the NR's house would not have taken a disproportionate amount of time. (3) The judge added that: (a) the position would have been different if admission to the PICU would only be possible if the patient were on s3, and if there had been a spiralling and acute deterioration of condition coupled with evidence of significant risk to nursing staff, and (b) s11 provides constitutional protection for those that are faced with detention under the Mental Health Act and there is a heavy duty on those who carry out these tasks to ensure that those statutory provisions are complied with. 2012‑06‑21 22:26:23 2012 cases, Brief summary, Consulting NR, Judgment missing from Bailii, Transcript

DP v South Tyneside DC (2011) Admin Court 14/7/11It was not practicable to consult the nearest relative because (1) DP was perceived to be potentially at risk from him (forced marriage/death) and (2) consultation was not possible without disclosing DP's location (the duty of consultation not being one of mere notification): therefore the application for habeas corpus was refused. 2011‑08‑22 20:17:09 2011 cases, Brief summary, Consulting NR, No transcript

CX v A Local Authority [2011] EWHC 1918 (Admin)A writ of habeas corpus was granted: (1) there had not been sufficiently informed consultation with the nearest relative before the s3 application was made; (2) the withdrawal of the nearest relative's objection was not full and effective, since it was the result of the incorrect and misleading advice that she could not maintain the objection without legal representation. [Judgment originally published under a different name.] 2011‑07‑21 21:43:56 2011 cases, Brief summary, Consulting NR, Judgment available on Bailii, Transcript

TTM v LB Hackney [2011] EWCA Civ 4(1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be broadly construed; (6) (obiter) a breach of s12(2) does not go to jurisdiction, but is one made in the exercise of that jurisdiction, and as such is less likely to make detention unlawful; (7) on the facts, the local authority was liable in false imprisonment and breach of Article 5 because of the s11(4) breach, and permission was granted under s139(2) for a compensation claim to be pursued, but there was no s12(2) breach because it had been reasonable to obtain two independent opinions from doctors not acquainted with the patient, given the divergence of views between the treating doctors who were. 2011‑01‑14 12:03:45 2011 cases, Consulting NR, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous, Transcript, Unlawful detention cases

TTM v LB Hackney [2010] EWHC 1349 (Admin)(1) There was a division of opinion in the treating team so it was considered ‘impracticable’ to obtain two medical recommendations from doctors with previous acquaintance of the patient: this was lawful as a reasonable and proper exercise of judgment of what was in the patient’s best interests. (2) The hospital were entitled to rely on the s6(3) protection (that any application which appears to be duly made etc may be acted upon without further proof) because the managers were entitled to rely on the AMHP’s confirmation that there had been no objection from the NR and because there had been no breach of s12(2). (3) As an AMHP is treated as acting on behalf of the LSSA the relevant council is vicariously liable for any lack of care or bad faith on the part of an AMHP: the council was therefore the correct defendant. (4) The proposed claim was based on the AMHP’s mistaken belief that the NR had not objected. A duty of care existed but there was no reasonable prospect of success in any negligence claim: therefore leave under s139(2) was not given. (5) Provided that there has been no fault by anyone involved in the decision making process which could lead to civil proceedings (namely negligence or bad faith), detention is to be regarded as lawful until, if a defect is identified, the court so declares or decides that release must follow. The claimant’s detention was lawful until prospectively declared unlawful in the habeas corpus proceedings. It followed that the detention was not unlawful in domestic law so that there was no breach of Article 5, and so no claim for compensation under Article 5(5). (6) In the circumstances there is no Convention incompatibility in either s139 or s6(3). [Caution.] 2010‑06‑12 20:31:05 2010 cases, Consulting NR, Detailed summary, Miscellaneous, Transcript

Re D (mental patient: nearest relative) [1999] MHLR 181The approach to whether a relative “cares for” a patient so as to become their nearest relative by reason of s26(4) Mental Health Act 1983 involves the provision of more than minimal care services; the social worker’s decision as to who “appears to be” the nearest relative for the purposes of consultation under s11(4) of the Act has to involve an acceptable approach to the question of who is the nearest relative but did not require the making of enquiries (unless it would be irrational not to make enquiries). [MHLR.] 2010‑02‑26 22:18:48 1999 cases, Brief summary, Consulting NR, MHLR summary, No transcript

CV v South London and Maudsley NHS Foundation Trust [2010] 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 2010‑02‑09 19:11:27 2010 cases, Consulting NR, Detailed summary, Judgment available on Bailii, Transcript

R (WC) v South London and Maudsley NHS Trust [2001] EWHC 1025 (Admin) — Unsuccessful challenge to lawfulness of detention (consultation with nearest relative). [Summary required.] 2009‑10‑30 22:47:56 2001 cases, Consulting NR, No summary, Transcript

R (C) v South London and Maudsley NHS Trust [2001] EWHC Admin 1025Identification of nearest relative in s11(4) is a subjective test - "who appears to him to be the nearest relative" - and the court will not interfere unless the social worker failed to apply the test in section 26 or acted with bad faith, or in some way reached a conclusion that was plainly wrong. Permission to apply for judicial review refused. 2009‑04‑19 15:31:13 2001 cases, Brief summary, Consulting NR, Permission hearings, Transcript

Re GM (Section 3 of the Mental Health Act 1983) [2000] EWHC 642 (Admin) — Habeas corpus - no breach by ASW of s11(4) (consultation with NR) or s13(2) (interview with patient). 2009‑04‑12 00:12:14 2000 cases, Consulting NR, Miscellaneous, No summary, Transcript

D v Barnet Healthcare Trust [2000] EWCA Civ 3027 — Identification of correct nearest relative, and extent of duty of ASW; meaning of "cares for". 2009‑04‑11 21:10:20 2000 cases, Consulting NR, No summary, Transcript

Re Whitbread (No 1) (Habeas Corpus: Compulsory Admission) [1997] EWHC Admin 102The ASW's [now AMHP's] consultation with the nearest relative under s11(4) can take place before a full assessment of the patient for the purposes of s3 has taken place, including before the two necessary medical recommendations have been obtained; the Act allowed for a flexible approach. 2009‑03‑15 17:34:16 1997 cases, Brief summary, Consulting NR, Transcript

Re Whitbread (No 1) (Habeas Corpus: Compulsory Admission) [1997] EWCA Civ 1944The ASW's [now AMHP's] consultation with the nearest relative under s11(4) can take place before his interview with the patient; the Act allowed for a flexible approach. Provided that the social worker explains to the NR that he is considering making an application and why, the NR will be afforded the necessary opportunity for objecting to the application. 2009‑03‑15 17:34:12 1997 cases, Brief summary, Consulting NR, Transcript

M v East London NHS Foundation Trust CO/1065/2009The nearest relative's statement to the AMHP that he disagreed with detention under s3 was sufficient to amount to the notification of an objection under s11; it was unaffected, in the absence of any clear evidence of a change of mind, by the failure to state an objection in a subsequent conversation immediately prior to the making of the application. 2009‑02‑15 22:14:22 2009 cases, Brief summary, Consulting NR, Transcript

GD v Hospital Managers of Edgware Community Hospital [2008] EWHC 3572 (Admin)Habeas corpus - inadequate consultation of nearest relative prior to detention under section 3. 2008‑09‑16 13:48:36 2008 cases, Brief summary, Consulting NR, Transcript

BB v Cygnet Health Care [2008] EWHC 1259 (Admin) — Inadequate consultation with nearest relative. 2008‑09‑13 08:01:01 2008 cases, Brief summary, Consulting NR, Transcript

Re Julie John (habeas corpus) [1998] EWHC Admin 472Challenge to the use of s2 in an apparent attempt to get round the requirement for consultation before s3. Application dismissed as judicial review was the appropriate form of proceedings. 2007‑02‑07 20:42:07 1998 cases, Brief summary, Consulting NR, Transcript

Re Briscoe (habeas corpus) [1998] EWHC Admin 771"The essence of consultation is the communication of a genuine invitation to give advice and genuine consideration of that advice." Merely informing the NR of s3 admission would not suffice for the purposes of s11(4). 2007‑02‑07 20:41:25 1998 cases, Brief summary, Consulting NR, Transcript

R (E) v Bristol City Council [2005] EWHC 74 (Admin) — Section 11 and practicability of informing NR. 2007‑02‑07 20:40:36 2005 cases, Consulting NR, No summary, Transcript