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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> SSG, R (on the application of) v Liverpool City Council & Anor [2002] EWHC 4000 (Admin) (22 October 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/4000.html Cite as: [2002] EWHC 4000 (Admin)

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

		22/10/2002

ORDER

(1) It is declared that the homosexual partner of a patient within the meaning of section 145 of the Mental Health Act 1983 can be treated as a "relative" within section 26(1) of the Mental Health Act 1983. Having regard to the specific statutory context and applying S-3 Human Rights Act 1998 the homosexual partner can be treated as falling within the phrase "living with the patient as the patient's husband or wife as the case may be" in S26(6) and accordingly as a relative within S26(1) MHA 1983. (2) It is declared that, having regard to the length of her cohabitation with the Claimant that Ms E.S.G is the nearest relative of the Claimant for all purposes under the Mental Health Act 1983.

(3) The First Defendant is ordered to treat Ms E.S G as the Claimant's nearest relative for all relevant purposes under the Mental Health Act 1983 and to record that she is the Claimant's nearest relative and to inform any hospital authority or other relevant body with whom it might have to deal in regard to the Claimant's condition that Ms E.S.G is the Claimant's nearest relative; by the First Defendant that it will not treat the Claimant's partner Ms E.S.G as her nearest relative within the meaning of S26 Mental Health Act 1983, be quashed.

(4) There be no order for costs save assessment of the Claimant's costs for the purposes of public funding.

STATEMENT OF REASONS

1. The Claimant has a diagnosis of paranoid schizophrenia and depression, which is longstanding and requires treatment. The Claimant currently receives that treatment in the community and attends appointment with a consultant psychiatrist. The Claimant has, however, been detained in hospital on one occasion, when she was admitted into hospital for assessment. The chronic nature of her condition is one that could lead to her being admitted into hospital in the future.
2. The Claimant has lived with her female partner, Ms E.S.G in a stable sexual relationship, since August 1999.
3. The First Defendant has statutory functions in relation to provision of persons to act as Approved Social Worker in exercising functions under the Mental Health Act 1983. Those functions include, as will be set out below, being one of the people (the other being the nearest relative herself) who can procure the compulsory admission of a person to hospital.
4. The person currently regarded by the Defendant as being the Claimant's nearest relative was thought to be her mother, Ms L.S who was served as the Interested Party in this application. The Claimant had not felt that she enjoyed a good relationship with her mother and would prefer her partner to be her nearest relative for the purposes of any decision that may fall to be taken in respect of compulsory detention or other care.
5. The Claimant's solicitors wrote to the First Defendant, asking it to amend its records and to treat Ms E.S.G as the Claimant's nearest relative. Initially, the First Defendant agreed and its Executive Director wrote to the Claimant's solicitors on 27th November 2001 acceding to their request. However, the First Defendant subsequently took the view that it could not accede to the request made by the Claimant, since there was doubt as to whether the legislation permitted a patient to choose a nearest relative. Legislative Context

"Nearest relative"

6. The "nearest relative" has a number of important functions in respect of persons dealt with under the Mental Health Act 1983 and associated delegated legislation. In particular (references being to the Mental Health Act 1983), the functions of nearest relative include:

(i) section 11 (4) requires that a social worker consult with the nearest relative before making an application that a patient be admitted for treatment in hospital within section 3 or for guardianship within section 7;

(ii) section 11 (4) requires that the nearest relative must be informed of an admission for assessment under section 2;

(iii) the nearest relative can make an application for admission for assessment, for treatment or for guardianship (section 11 (1));

(iv) the nearest relative can require an approved social worker to consider making an application for admission into hospital or for guardianship (section 13 (4));

(v) the nearest relative must have decisions not to make applications for admission to hospital or guardianship discussed with her/him (Code of Practice under Mental Health Act 1983, paragraph s.31);

(vi) the nearest relative can procure the discharge of a patient from detention or guardianship (section 23 (2));

(vii) the nearest relative can obtain an assessment of the patient by a doctor (section 24);

(viii) the nearest relative must be consulted about applications for supervised discharge (section 25B(2)).

7. The procedure for identifying who is a patient's nearest relative is set out in section 26 of the Mental Health Act 1983. A statutory "pecking order"exists, with section 26 (1) describing the list of relationships capable of being a "relative" for these purposes. The nearest relative is ascertained by, as prescribed in section 26 (3), going down the pecking order in section 26 (1) until a relative is found. The first in the list is "husband or wife".
8. Of importance in the ascertainment of the nearest relative are section 26 (4), section 26 (6) and section 26 (7). Section 26 (6) extends the definition of "husband or wife" to a person who is "living with the patient as the patient's husband or wife, as the case may be." Section 26 (7) states that a person, other than a relative with whom the patient "ordinarily resides…and with whom he has or had been ordinarily residing for a period of not less than five years" shall be treated as a relative, as if they were bottom of the section 26 (1) list. That person would nevertheless take precedence over the persons higher in the list, as a result of section 26 (4).
9. There is no right under the legislation for the patient to choose or appoint his or her nearest relative, though the person who is the nearest relative can appoint someone else to exercise the functions on their behalf, in accordance with Regulation 14 of the Mental Health Regulations 1983. During the course of the claim, it was discovered by the First Defendant that the Claimant's father was still living and would in fact have been the Claimant's nearest relative. He has since delegated that responsibility to the Claimant's partner.
10. In the context of this particular legislation and applying s3 Human Rights Act 1998 the court accepts that s26 (6) of the Mental Health Act 1983 should be read so as to permit Ms E.S.G to be prescribed as the Claimant's nearest relative. S26 (6) must be read in accordance with s3 Human Rights Act 1998 to avoid a declaration of incompatibility under Articles 8 and 14 of the European Convention on Human Rights as the difference in treatment between homosexual unmarried couples and heterosexual unmarried couples cannot be justified in this statutory context.

DATED this 22 day of October 2002