England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London
		Thursday 25 October 2001

Thursday 25 October 2001

1. MR JUSTICE SCOTT BAKER: The claimant suffers from paranoid schizophrenia. He challenges his detention under section 3 of the Mental Health Act 1983. Earlier this month his application for permission to apply for judicial review was adjourned by Stanley Burnton J to be heard today and, if permission was granted, to proceed straightaway to the substantive hearing.
2. For the reasons that I shall outline, I have come to the conclusion that on analysis the claimant does not have an arguable case and that therefore permission must be refused.
3. The second defendant is the approved social worker who made the application for the claimant's detention. The first defendant is the National Health Service Trust that accepted the application and detained the claimant.
4. Where an approved social worker makes such an application he is required by section 11(3) of the 1983 Act to tell the patient's nearest relative that the application is being or has been made, and of the nearest relative's powers. Those powers include the power to stop an immediate admission in the event that the nearest relative objects.
5. The precise terms of section 11(3) are as follows:

"Before or within a reasonable time after an application for the admission of a patient for assessment is made by an approved social worker, that social worker shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the application is to be or has been made and of the power of the nearest relative under section 23(2)(a) below."

6. In this instance the second defendant treated the claimant's wife as the nearest relative. The claimant says that this decision was wrong; it should have been his mother. If there is non-compliance with section 11(3) the result is that the following detention would be unlawful. The application would not have been duly completed. In the circumstances of this case, if the claimant succeeds against the second defendant, inevitably, as night follows day, he succeeds against the first defendant also.
7. Before leaving the legislation I should mention the other provisions of section 11. Subsection (1) provides:

".... application may be made either by the nearest relative .... or by an approved social worker; ...."

8. Subsection (4) provides in summary that there is to be no immediate admission in the event that the nearest relative objects. It is to be observed that the section 11(3) obligation is to inform the person who appears to the social worker to be the nearest relative.
9. Section 26 provides a definition of "nearest relative" as follows:

"(a) husband or wife;

(b) son or daughter;

(c) father or mother;

(d) brother or sister;

(e) grandparent;

(f) grandchild;

(g) uncle or aunt;

(h) nephew or niece."

There are other provisions dealing with half-blood which are not relevant and to which I need not refer.

Section 26(4) is, however, of importance. It provides as follows:

"Subject to the provisions of this section and to the following provisions of this Part of this Act, where the patient ordinarily resides with or is cared for by one or more of his relatives (or, if he is for the time being an in-patient in a hospital, he last ordinarily resided with or was cared for by one or more of his relatives) his nearest relative shall be determined --

(a) by giving preference to that relative or those relatives over the other or others; and

(b) as between two or more such relatives, in accordance with subsection (3) above."

10. So the position is that rules as to where a patient is ordinarily resident can trump the order set out in section 26(1) that would otherwise apply. Accordingly, if in this case the claimant was ordinarily with his mother at the material time, then his mother would displace his wife as the nearest relative under this legislation.
11. Mr Patel for the claimant submits that on the facts of this case there are three theoretical possibilities as to the claimant's ordinary residence: he may be ordinarily resident with his wife; he may be ordinarily resident with his mother; or, thirdly, he may not be ordinarily resident anywhere.
12. Under the provisions of section 11(3) the social worker is not obliged to resolve this legal issue as to ordinary residence so as to get it right in absolute terms. What matters is who appears to him to be the nearest relative in the context of the rules set out in the relevant provisions of the Mental Health Act.
13. There is one authority to which reference has been made and which is of some importance because it touches on section 11 of the Mental Health Act. That is Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848. At page 853 Otton LJ, with whom Hooper J agreed, said this:

"(15) The question which this court has to consider is not in deciding whether the application for determination for treatment was validly made, whether Mr JM, the approved social worker, consulted with the person who was legally correct as the 'nearest relative', but whether L appeared to him to be that relative. That, to my mind is a correct analysis of section 11(4). This section and subsection has to be construed strictly. It involves the liberty or loss of liberty of a person, particularly a person under a mental disorder. It imposes no duty of reasonable inquiry on Mr JM in relation to deciding who is the nearest relative. I accept Mr Foster's argument on behalf of the respondent that such an imposition would in the circumstances in which most decisions have to be made, be an intolerable one....

(16) We have to ask the following question. Was his decision, in concluding that L was the nearest relative, plainly wrong?"

14. I accept those observations of Otton LJ as setting out the correct test and the test that I have to apply when examining the decision of the second defendant in this case.
15. It is necessary briefly to refer to the facts of this case. On 22 August 2001, the claimant was forcibly removed from premises in Stockwell, where he had been residing with his mother, Mrs JC, by order of a warrant issued on 1 August 2001, pursuant to section 135(1) of the Mental Health Act 1983. He was then taken to Cane Hill Forensic Mental Health Unit and compulsorily detained under section 3. The claimant is 39 years old. He married his wife R in 1990. They lived together as a couple for six years initially in bed and breakfast accommodation in South London and from 1992 to 1996 at an address in Streatham.
16. In April 1996 he and his wife separated and she moved out of their home. From then he began living on and off with his mother at her address in Stockwell. From time to time there have been reconciliations between the claimant and his wife, but it is said that they have now reached the point of no return. They have four children. Between 5 June and 12 July 2001, the whole family, that is the claimant, his wife and four children, went together on holiday to Antigua. On return it is said in the claim form that the claimant began living with his mother full time at her premises and that he moved all his clothes and his belongings there as well as redirecting his post to that address.
17. The claimant has a history of mental illness which has on a number of occasions required his compulsory admission to hospital. He has been involved more than once in proceedings in the courts. On 31 January 2000, he was admitted to hospital pursuant to section 2 of the Mental Health Act. He challenged the lawfulness of his admission in judicial review proceedings, but before they were determined he was discharged. He then sought to pursue the litigation by way of a claim for compensation, but that claim was in due course struck out.
18. On 13 October 2000, he had to be admitted to hospital for an urgent assessment. Following the assessment he was detained under section 3. On that occasion the social workers consulted with his wife, Mrs RC, under section 11, as the nearest relative, and she indicated that she objected to the application. There followed a displacement application made by the hospital authority in the Lambeth County Court to seek to replace Mrs RC as the nearest relative. It was, however, common ground that at that time she was the claimant's nearest relative within the meaning of section 26.
19. In the past there are three addresses with which the claimant has had connection: a property in Croydon, which is fundamentally his wife's address, but there is no doubt that the claimant has spent a good deal of his time there; his mother's address at Stockwell; and the address in Streatham, where apparently the claimant is a tenant and where in the past, but not for a number of years, the claimant and his wife have lived together as a matrimonial home.
20. The social worker, the second defendant, was well aware that the claimant's relationship with his wife had been characterised by periods of separation, most of which were short-lived and none of which turned out to be permanent.
21. In the spring of 2001 the Community Mental Health Team concluded that the claimant's health his mental health was deteriorating. They referred the matter to the Forensic Mental Health Team. It was clear that at this stage he was living with his wife and children, and, furthermore, that his wife was expecting a further child by him. Indeed, that child is due next month.
22. At the end of July the forensic team concluded that the concerns about the claimant's mental health were such that he would require to be admitted for further inpatient psychiatric treatment, if necessary by compulsory detention. He was not prepared to attend hospital willingly. On 1 August a warrant was obtained under section 135 of the Act.
23. The second defendant says that colleagues in the Mental Health Team both considered who would be the nearest relative for the purposes of the proposed forthcoming detention and concluded that it was Mrs C, the claimant's wife. The second defendant independently reached the same view. Following assessment of the claimant, which was undertaken on 22 August, the second defendant telephoned the claimant's wife to advise her of developments and to confirm that she still did not have any objection to compulsory detention.
24. The second defendant makes it clear that he gave considerable thought to the question of who was the nearest relative under section 11. In doing so he had in mind that at the time of the previous displacement application the claimant's wife had been the nearest relative. He also had in mind that the claimant and his wife had been living recently together as a family unit and had been on holiday as a family for a period of several weeks as recently as June and July 2001. Whilst they appeared to have separated about 17 July, the second defendant viewed this, entirely reasonably in my judgment, in the context of the previous family history. There had been many such previous separations. They had not turned out to be permanent and they had to be seen in the context of the claimant's developing mental illness. It is true that there is evidence that the claimant says that he told the authorities that he had divorced his wife. He says that he did not tell them that; he said that he was taking divorce proceedings. The second defendant says that he did not believe the assertion of divorce. He goes on to say in his statement that claimant's wife clearly regarded herself as the nearest relative and acted accordingly. Whilst it appeared that the claimant was spending some of his time at his mother's address, it did not appear to the second defendant that he was spending all of his time there. The second defendant also records a number of matters in his statement which have been extracted from the file, which illustrate the considerable uncertainty of the claimant's circumstances with which the second defendant was faced. He concluded in this way:

".... from all of this that during the four to five weeks leading up to 22 August [the claimant] had been living an itinerant, and probably chaotic, lifestyle, not being resident at any one settled address."

25. At paragraph 56 of his statement he continues:

"Having regard to all these factors, I asked myself where [the claimant] was ordinarily resident. I considered the guidance contained in Jones's Mental Health Manual. I considered the footnote referring to the judgment of Lord Scarman in the case of Shah v Barnett London Borough Council, where it was said:

'unless .... it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of a regular order to his life for the time being whether of short or long duration.'

It appeared to me from the evidence that [the claimant's] separation from his wife was only temporary, and that his settled address remained with her. Further, if that was not the case, then it certainly appeared to me that he had not adopted any other settled address, in view of the itinerant way in which he had spent the last few weeks. I was conscious of the footnote which added 'each case has to be judged on its own merits and the fact that a person has left his home does not necessarily mean that he has established an ordinary residence elsewhere.' I therefore concluded that it appeared that [the claimant's] ordinary residence was with his wife, but that if it was not, then he did not have an ordinary residence."

26. In my judgment, the second defendant could not have directed himself more appropriately as regards the law to be applied to the circumstances of this case.
27. Mr Patel submits that there are three possibilities as to the claimant's ordinary residence: with his wife; with his mother; or not ordinarily resident anywhere. The second defendant concluded that the answer was either with his wife or that he was not ordinarily resident anywhere. Mr Patel submits that that conclusion was plainly wrong and that the second defendant should have come to the conclusion that the claimant was ordinarily resident with his mother and that therefore his mother took the place as nearest relative at the top of the queue. Sometimes social workers will be faced with a dilemma in choosing between a spouse and another member of a patient's family as the nearest relative. Section 11(4) makes it clear that the dilemma is to be resolved by the social worker deciding who appears to him to be the nearest relative. It is a subjective test. The court will not interfere with his conclusion 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.
28. As Otton LJ pointed out in Re D, there is no duty of reasonable inquiry on the social worker, far less (I would add) to don the mantle of Sherlock Holmes. In my judgment, the social worker in the present case looked into the issue with a good deal greater care than he was strictly required to do by law. Far from reaching a conclusion that was plainly wrong, in my judgment the conclusion that was reached by the second defendant was plainly right. In these circumstances, this application for permission to apply for judicial review must be refused in respect of the claim against each of the defendants.
29. I am grateful to counsel for their arguments and for their skeletons. Thank you.
30. Do you want a legal aid assessment, Mr Patel?
31. MR PATEL: My Lord, yes, please.
32. MR JUSTICE SCOTT BAKER: Your certificate is on the file. You can have one.