The claimant sought a writ of habeas corpus, by way of a challenge to his detention under section 3 of the 1983 Act, saying that it had been unlawful because the social workers had failed to consult his father.
Held: Burnett J said: ‘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.’
and as to section 11(4): ‘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.’
Referring to Re D and WC, he continued: ‘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.
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.
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.
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.’
Judges:
Burnett J
Citations:
[2008] EWHC 3572 (Admin)
Links:
Statutes:
Citing:
Cited – In Re D (Mental Patient: Habeas Corpus) Admn 2000
. .
Cited – WC, Regina (On the Application of) v South London and Maudsley NHS Trust and Another Admn 25-Oct-2001
The claimant challenged his detention under section 3 of the 1983. He suffered from paranoid schizophrenia. He said that the social worker had consulted his wife and not, as he said was correct, his mother.
Held: . .
Cited by:
Cited – TW v London Borough of Enfield and Another QBD 8-May-2013
The claimant sought damages after being detained under the 1983 Act, and a declaration that the section used was incompatible with her human rights.
Held: The test for allowing proceedings was set at a low level, and even if section 139 does . .
Lists of cited by and citing cases may be incomplete.
Health
Updated: 28 July 2022; Ref: scu.347094
