Mental Health Act 1983 Code of Practice must change.

01 Jan 2018

Health and Social Care

The Court of Appeal has just decided an important issue about AMHP consultation with a nearest relative prior to ‘sectioning’ under section 11(4) Mental Health Act 1983

In TW v Enfield LBC [2014] EWCA Civ 362 leave was given to bring a damages claim for unlawful detention against the local authority allowing an appeal against a first instance refusal. TW had been ‘sectioned’ after an approved social worker had concluded that it was not ‘reasonably practicable’ to contact her nearest relative in circumstances where TW asserted that any contact with the nearest relative would be a breach of confidence. The ASW took into account the Code of Practice which had been modified after E v Bristol City Council [2005] MHLR 83 which suggested it was not ‘reasonably practicable’ to consult the nearest relative where the patient objected as it would be a breach of Article 8.

The Court of Appeal held that the construction of s.11(4) by reference to art.8 in E had been incomplete, and in that respect E should not be applied. E had not considered a full proportionality review including both Article 8(1) and Article 8(2). Paragraphs 4.60, 4.61, and 4.62 of the Code of Practice were incomplete and incorrect in law.

The Department of Health will now need to quickly modify the Code of Practice so that AMHPs are correctly guided about consultation under s.11(4) MHA 1983.

Michael Paget represented TW