Case No: CO/3451/2011
Neutral Citation Number: [2011] EWHC 1918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Date: Wednesday, 20 April 2011
Before:

MR JUSTICE SPENCER
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Between:

	CX
	Claimant	
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A LOCAL AUTHORITY

and

a NHS Foundation Trust	
Defendant

Interested Party	
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(DAR Transcript of 
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Mr V Sachdeva (instructed by Ben Hoare Bell) appeared on behalf of the Claimant.
Mr J Swirsky (instructed by A Local Authority) appeared on behalf of the Defendant.
The Interested Party did not appear and was not represented.
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Judgment
Mr Justice Spencer:

1.	This is an application for a writ of habeas corpus ad subjiciendum arising from the detention of the claimant, CX, as a patient in a mental hospital, the managers of which are A NHS Foundation Trust (who are named as interested parties in these proceedings but who have not been represented or made submissions).  

2.	The claimant was detained under section 3 of the Mental Health Act 1983 on 22 December 2010 on the application of an approved mental health professional (AMHP), AY, employed by the defendant, A Local Authority.  The claimant contends that his detention was and is unlawful because the application made by the AMHP was itself unlawful for two reasons.  First, it was unlawful for want of proper consultation with the claimant’s nearest relative, his mother, MB.  Secondly, it was unlawful because she only withdrew her objection to the application for his detention under section 3 because she was misled as to her statutory rights with the result that her objection should be treated as subsisting.

3.	  The issue I have to decide is whether the defendant has proved on the balance of probabilities that the application for the claimant’s detention under section 3 was in fact lawfully made.  It is a common ground as a matter of law, as confirmed in very recent authority from the Court of Appeal, that if the application was unlawful then the detention was unlawful (TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4).

The factual background
4.	The claimant is 21 years of age.  He suffers from schizophrenia.  Since the age of 17 he has had mental health problems.  On 28 September 2010 he was admitted informally and voluntarily to C Hospital, because he felt safer in hospital than in the community.  On 30 November 2010 he was compulsorily detained under section 2 of the Act for assessment.  That detention was for a maximum of 28 days.  He appealed to the Mental Health Review Tribunal against that admission.  The appeal was dismissed on 10 December 2010.

5.	  A social circumstances report to the Mental Health Review Tribunal prepared by Samantha Wilson, a community psychiatric nurse, records that his mother was unhappy with his detention under section 2.  She believed his care on the ward had been managed poorly and there had been inconsistencies with his medication.  She was requesting that she be more involved with her son’s care whilst on the ward and requested that the section 2 detention be rescinded. 

6.	 The section 2 detention for assessment was due to expire on 27 December 2010.  The treating psychiatrist (the claimant’s responsible clinician), Dr Sharma, requested on 21 December 2010 that the defendant, through AY, carry out an assessment under the Act for the purposes of a section 3 admission for treatment.  This was the first involvement of AY in the claimant’s case.  Dr Sharma had examined the claimant that day and was recommending admission under section 3 for treatment.  He was concerned that the claimant continued to display psychotic symptoms and that he presented a risk to others as well as to himself.

7.	  Section 11 of the Mental Health Act 1993 (as amended by the Mental Health Act 2007) gives an AMHP the right to make an application for a person’s admission to a mental hospital for treatment under section 3 subject to certain strict conditions.  This case turns on the provisions of section 11(4) of the 1983 Act which provides, so far as material: 

“An approved mental health professional may not make an application for admission for treatment or a guardianship application in respect of a patient in either of the following cases—

(a) the nearest relative of the patient has notified that professional, or the local social services authority on whose behalf the professional is acting, that he objects to the application being made; or

(b) that professional has not consulted the person (if any) appearing to be the nearest relative of the patient …”

8.	Section 11(5) of the Act requires that the AMHP must have seen the patient within 14 days of making the application.  AY saw the claimant on 21 December.  She submitted the application for detention the following day, 22 December.  There is a measure of agreement on the facts as to the nature and extent of her consultation with the claimant’s mother and it is upon that process of consultation that this case turns. 

9.	 It is important first, however, to consider the options open to the AMHP when she embarked upon the assessment of the case to decide whether to make the application for admission under section 3.  If it became clear that the claimant’s nearest relative was objecting to his admission for treatment under section 3 it would be necessary for the AMHH to apply to the county court under section 29(3)(c) of the Act for an order displacing the nearest relative on the grounds that the nearest relative was unreasonably objecting to the making of the application for admission for treatment.  If such an application were made the court would have to decide, by analogy with the issue of a parent  unreasonably withholding consent to an adoption, whether the stance being taken was objectively reasonable, making allowance for the range of reasonable stances in such a case.  If the application succeeded the nearest relative would be displaced from his or her role for a defined period and another suitable person would be substituted to exercise the powers of the nearest relative. 

10.	 Those powers and duties are extensive and important (see the helpful analysis by Maurice Kay J in Re M [2003] EWHC 1094 (Admin) at paragraphs 4-5).  In the present case time was of the essence because of the imminent Christmas holiday period.  Any such application to the county court would have to be filed by 4pm on Wednesday 23 December.  The application would have  to be prepared by the defendant’s legal department and would involve the AMHP making a statement in support.  It is apparent from the evidence before me that steps were well in hand for such an application to be filed with the court should it become necessary.  It follows that although it would no doubt have been much more convenient if, after due consultation, the claimant’s mother did not maintain her objection; there would have been no practical difficulty in pursuing the alternative course of applying to the county court to displace her as nearest relative.  

11.	I shall return in due course to my factual findings but for the purposes of the narrative the history may be summarised very briefly as follows.  It is common ground that some time during the day on Monday 21 December there was a telephone conversation between AY and MX.  In that telephone conversation it became clear that MX was objecting to any section 3 application.  Arrangements were made for a meeting at MX’s home later that afternoon when she returned from work.  That meeting took place and lasted about 45 minutes.  Amongst the things discussed during the course of that meeting, MX says, is what would happen if she maintained her objection.  She says she was told that if she wanted to object, and to maintain the objection in the face of court proceedings, she would have to be represented by a solicitor.  She says she was also told that she could have all her rights in respect of her son taken away from her if such proceedings went ahead at court and she were unsuccessful in maintaining her opposition.

12.	  It is common ground that there was a further and final telephone conversation the following day, the matter having been left inconclusive at the end of the meeting the previous evening.  MX had wished, understandably, to consult with her son before making a final decision as to whether she would or would not maintain her objection.  In the telephone conversation the following morning between MX and AY, it is clear that MX did in fact withdraw her objection, albeit not using those words.  What she said in effect was that she had been left with no choice but to agree.  AY says that MX told her she had spoken with her son and they had agreed she would not object to section 3.  Although she was not in full agreement with section 3, she would not object any longer.  

13.	Having established that any objection by MX had been withdrawn, AY proceeded with the formal application for admission for treatment under section 3.  That application was submitted to the hospital later that morning and the claimant was detained under section 3 with effect from 12.40pm that day.  There matters remained until 23 March 2011 when the claimant submitted an appeal to the Mental Health Review Tribunal against the section 3 admission.  It was then, and only then, that solicitors were instructed on his behalf.  The papers relating to his admission were obtained by the solicitors; counsel’s opinion was sought and a letter before claim was sent and responded to. 

14.	 On 12 April this application for habeas corpus was issued, at that stage within proceedings for judicial review.  Langstaff J gave directions the following day, 13 April, that the matter be heard urgently by me in Leeds yesterday, that application being limited to the issue of whether the claimant’s detention was lawful.  Langstaff J ordered that judicial review proceedings should proceed separately if appropriate.

The issues
15.	It is common ground that although MX was objecting to the section 3 application when AY discussed the matter with her on 21 December, MX withdrew her objection the next morning.  However, it is submitted on behalf of the claimant that this withdrawal of her objection is vitiated by her being misled into believing that she could not oppose court proceedings to displace her as her son’s nearest relative unless she was represented by a solicitor.  She knew she could not afford legal representation and was therefore driven to capitulate and withdraw her objection the next day.  Given the strength of her objection when first told of the section 3 application it is submitted on behalf of the claimant that there can be no other explanation for her fundamental change of position.

16.	  It must be correct, as a matter of principle, that the withdrawal by a nearest relative of his or her objection to a section 3 application can be vitiated so as to render a withdrawal ineffective and so as to reinstate the objection.  To take an extreme example, if an AMHP were deliberately to deceive a nearest relative by representing that the psychiatrists were expressing a particular opinion when in fact they were not and, on the strength of that representation, the nearest relative withdrew the objection, then plainly the withdrawal would be of no effect and the objection would stand.

17.	  It is also submitted on behalf of the claimant that the section 3 application was not lawfully made because AY had not, within the meaning of section 11(4) of the Act, sufficiently “consulted” the claimant’s nearest relative, his mother, MX, before submitting the application for admission on 22 December.  It is submitted on behalf of the claimant that the duty to consult required that MX be informed fully and accurately as to her role and rights under the Act.  Factually this submission relies upon the same matters as a submission that the withdrawal of her objection was vitiated by misrepresentation.  The two submissions are effectively two sides of the same coin.

18.	  The authorities make it clear that the obligation to consult involves far more than merely informing the nearest relative of what is proposed: see Re Briscoe [1998] COD 402.  In that case Tucker J cited with approval the general guidance given by Webster J in R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 All ER 164:

“…in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice.”

19.	Of particular relevance in this case is the guidance on consultation given in the Code of Practice issued under section 118 of the Act.  While the Act does not impose a legal duty to comply with the Code, AMHPs must have regard to it when undertaking their duties under the Act.  Paragraph 4.64 of the Code provides as follows:

“When consulting nearest relatives AMHPs should, where possible: 

• ascertain the nearest relative’s views about both the patient’s needs and the nearest relative’s own needs in relation to the patient; 
• inform the nearest relative of the reasons for considering an application for detention and what the effects of such an application would be; and 
• inform the nearest relative of their role and rights under the Act.”

It is upon this last requirement that the nearest relative be informed of his or her role and rights under the Act that the argument in this case is focused and to which the evidence has been directed.  

20.	It is submitted on behalf of the claimant that this nearest relative, MX, was not given full and accurate information as to her rights under the Act should she persist in her objection and should the matter then proceed to the county court for her displacement as nearest relative.  Had she been provided with full and accurate information it is submitted that she would never have withdrawn her objection.

21.	It is accepted by counsel for both parties that in the end this case turns exclusively on the facts. It comes down to the narrow issue of whether AY accurately and sufficiently explained the options open to MX if she persisted in her objection to section 3 and whether AY therefore sufficiently consulted MX by informing her of her role and rights under the Act. 

The relevant evidence

22.	  The case turns largely upon what was said between AY and MX during their three conversations on 21 and 22 December.  There is, as I have indicated, a measure of agreement but some crucial points of disagreement have emerged.  MX has given oral evidence before me.  Regrettably, and through no fault of her own, AY has not been able to give oral evidence.  She was medically unfit to attend court for reasons which I need not go into.  She has made a detailed witness statement dated 15 April 2011 which stands as her evidence.  Both parties are at a disadvantage through AY’s absence from the witness box.  Mr Sachdeva, on behalf of the claimant, has had no opportunity to challenge and test AY’s evidence in cross-examination. Mr Swirsky, on behalf of the defendant, has been unable to present AY as a witness whose reliability the court could assess for itself.  I bear firmly in mind the disadvantages to both parties which flow from AY’s absence from the witness box.  Had this application for habeas corpus been made much sooner then she would no doubt have been able to attend.  As it is, she has been required to cast her mind back to events three months or more earlier and to provide at short notice a detailed account of her recollection.

23.	In addition to AY’s witness statement I do, however, have the benefit of the reasonably full narrative of her dealings with MX as nearest relative as recorded by AY in the assessment form she was required to complete.  Mr Sachdeva submits that to the extent that AY adds detail in her witness statement which does not appear in her narrative account in that assessment record, the court should be cautious in acting upon the supplementary material, particularly when there has been no opportunity to cross-examine her.  Mr Sachdeva also submits with some force that AY was advised at the time by the solicitor for the defendant that she should record fully in writing her conversations with MX.  I shall return to this important point.

24.	  MX herself made no contemporaneous notes of what was discussed with AY.  On some points her recollection has been shown to be at fault.  However, the events of 21 and 22 December, I am quite sure, are firmly fixed in her memory.  The crucial point is that she changed position overnight from objecting to the section 3 application to withdrawing her objection.  Mr Sachdeva invites me to consider why she should have changed her position unless there was some overriding and overbearing factor which brought it about.

25.	  In this context it is an important part of the background that MX, I am quite sure, had shown the keenest interest in and concern for her son, the claimant, throughout his time in hospital.  She had been visiting him three or four times a week; she had been frustrated by the lack of information she was given about his progress; she was frustrated at the apparent inability of the doctors to achieve the correct balance of medication.  Above all, she was desperate that his compulsory detention be brought to an end.  She felt that she had done everything she could to support the medical professionals in encouraging her son to be admitted as a voluntary patient in the first place.  She had been bitterly opposed to a section 2 admission for assessment as the report of Samantha Wilson confirms.

26.	  MX was well aware that this 28 day order was due to expire over the Christmas period.  She said in evidence, and I accept, that she had assumed that when it came to an end her son would either be released into the community under the care of the psychiatrist who had previously overseen him, or he would again become a voluntary patient.  So confident was she that he would not be compulsorily detained any further that she had made arrangements for the family, including her son, to stay for several days with her brother over the Christmas period.  This was the extent of MX’s knowledge and expectation when, out of the blue, she received a telephone call at work from AY on Monday 21 December.  I accept MX’s evidence that until that stage she had no inkling that a further “sectioning” might be sought, still less that it could last for up to six months.

27.	  It was at this stage that AY first became involved in the case.  She is one of eighteen or so AMHPs employed by the defendant.  She had eight years’ experience in the role and was clearly highly thought of by her team leader, Mr C, who made a witness statement explaining AY’s current medical position and who has given evidence before me.  It was his professional view that AY has always undertaken her work diligently, conscientiously and with integrity.  He describes her as a very calm person.  He has never previously heard any criticism of her practice or manner towards patients or families.

28.	  The assessment report which AY completed confirms that the case was referred to her at 11.30am on 21 December.  She began her assessment straightaway and she has recorded that the total time she took to complete the assessment was 14 hours 15 minutes.  Although the time of her first telephone call to MX is not precisely known, it was probably later that morning or early in the afternoon.  She phoned MX at work where circumstances were obviously not conducive to a lengthy telephone conversation.

29.	  In her two witness statements (the second made in response to AY’s witness statement) MX made no mention at all of this first telephone conversation.  Mr Swirsky submits that this is an indication of the fallibility of MX’s recollection.  MX told me, however, and I accept, that she had not forgotten this first conversation but in effect it was overtaken by events because it was simply an informal chat leading to the arrangement for AY to come out to see her after work that same day.  MX told me in evidence, and I accept, that it was in this telephone conversation that she learned for the first time of any intention to keep her son in hospital compulsorily. 

30.	 The record AY made of that first telephone conversation was put to MX in cross-examination and she accepted that it was accurate.  The record reads as follows:

“AMHP contacted NR [nearest relative] prior to assessment to establish her views regarding the possibility of use of Sec.3 MHA.  [MX] expressed her objection to Sec.3 MHA, she described [CX] as having ‘some issues’ and later agreed he has psychosis and that she has observed him to hear voices, particularly at night but she feels the current medication is not great.  She found zopiclone to be the most use for him especially at night.  [MX] agreed to informal admission or to use of another Sec.2 MHA.  AMHP explained that legally use of another Sec.2 MHA is not an option.  Due to objection it was agreed that AMHP would go to hospital to do assessment and contact [MX] again.”

31.	Two important facts stand out from this first conversation.  First, MX was clearly objecting to a section 3 admission.  Secondly, if there had to be any further compulsory admission MX wanted it to be of the same limited duration, that is, in the form of a further section 2 order.  In fact of course that was not legally possible.

32.	  Arrangements were made for AY to visit MX at around 5.15 pm that evening after work.  When AY had spoken to MX she visited the hospital to embark upon her assessment with a view to submitting an application to the managers of the hospital for the claimant’s admission under section 3.  AY spoke to the claimant and she spoke to the doctors.  She formed a view that the claimant’s illness was more serious than MX had suggested and AY was in agreement with the doctors that a section 3 application would be appropriate.

33.	  On the afternoon of Monday 21 December AY had two telephone conversations with JY, an experienced solicitor in the defendant’s legal department, who deals with social services matters.  JY made a witness statement in these proceedings and has given evidence before me.  She also produced her file notes of the relevant conversations. 

34.	 In the first conversation that afternoon AY informed the solicitor that the doctors were recommending section 3 but that MX, as nearest relative, was objecting.  She noted that the section 2 order was due to expire on 27 December.  The solicitor advised AY that it would be necessary in those circumstances to issue an application to displace the nearest relative and that an application would have to be made before the section 2 order expired.  The solicitor then telephoned the county court and confirmed that the court would be closed from 4 pm on Wednesday 23 December so the application would need to be issued before that deadline.  The solicitor also confirmed that the court would not re-open for business until the first working day in the New Year, which would have been Tuesday 4 January.

35.	  In a second telephone call with AY the solicitor informed her of that deadline.  She agreed to email AY a template for the witness statement which it would be necessary for AY to prepare and submit in support of the displacement application.  In the second conversation with AY the solicitor recalls – and I am satisfied this is correct – that she referred AY to the relevant statutory provisions in the 12th Edition of the Mental Health Act Manual, edited by Richard Jones, and specifically to paragraph 1-405 at page 195 of that book.  The solicitor recalls this because she has highlighted that passage in her copy of the book.  She recalls reading the relevant passage over the phone to AY and also recalls that AY was already well aware of what she was reading to her. 

36.	 The passage in question is as follows:

“Subsection (4)  
   This sub-section provides that if the patient is detained for assessment and an application is made to the county court on ground (c) or (d) before the 28 days provided for in s.2 expires, the period for which the patient may be detained is extended until the application is finally disposed of and, if an order is made, for a further period of seven days to enable the formalities of a s.3 application to be complied with.”

The importance of this evidence is that it shows that prior to her visit at 5.30 pm to MX’s home, AY was well aware of the legal and practical implications of issuing an application for displacement, including the fact that the application would not be dealt with by the court until January at the earliest and that in the interim the section 2 order, which MX had already enquired about and had been prepared to accept as second best, would continue in place.  

37.	The meeting at MX’s home duly took place at around 5.30 pm that evening.  AY did very well to get there at all. There was thick snow on the ground and conditions were treacherous.  When she reached the estate where MX lives she had to phone for further directions and MX went to meet her.  It was clearly a tense and emotionally charged discussion which lasted for around 40 to 45 minutes.  Again when AY’s record in her report of the meeting was put to MX in cross-examination, MX agreed that it was substantially accurate so far as it went.  There were, however, important matters that must have been discussed, as AY’s witness statement makes clear, which regrettably are not referred to at all in AY’s report.  I shall return to these shortly.

38.	  AY’s narrative record of the meeting at MX’s home, as set out in the report, reads as follows:

“Following assessment, AMHP visited [MX] at home 5.30 pm.  MX presented as angry and voiced her dissatisfaction with her lack of involvement in MHA assessment for sec2 and in leave discussions with the ward and the general management of [CX’s] care by the mdt.  [MX] feels that [CX] could be managed at West Willows as he prefers and should have more leave, as [CX] agrees to informal admission.  [MX] expressed the view that Section 3 MHA is not required.  AMHP expressed view that [CX] wants more leave than clinical team is prepared for and that sec. 3 is required to support this, informal admission would be suitable at a later date.  [MX] was tearful at this suggestion and said she wanted to talk with [CX] first and will call AMHP tomorrow.”

39.	In her witness statement MX says that she told AY very clearly that she was not happy with the proposed plan and did not support it.  She told her that section 3 was not necessary and that her son could be treated as a voluntary patient.  She says she felt intimidated and belittled by AY who was not sympathetic at all to her views.  In her witness statement she then describes the two crucial parts of the conversation in these terms, 

“19. [AY] advised me that if I wanted to object then there would be Court Proceedings and I would have to get my own solicitor and pay for it myself.  

20. I certainly could not afford a solicitor and I told [AY] that.  

21. [AY] told me that I could have all my rights taken away from me by the Court in respect of [CX].  I did not know exactly what she was talking about but I was left with a feeling that I would lose all parental rights in respect of [CX] and not be entitled to any further involvement in his care management.”

40.	In her oral evidence MX confirmed, as she said in her witness statement, that she became upset during this meeting at the house and later on became angry as well.  She became angry that AY told her that her son could not be taken off the section.  She said in evidence that AY was asking her why she was against it and repeatedly emphasised that it would be in her son’s best interest for a section 3 admission to be made.  MX did not see why it was necessary.  She became tearful and angry when she realised that she could do nothing to stop it going ahead.  AY told her she could object if she wanted to but never told her in terms that all she had to say was “I object” and the section 3 application would be stopped in its tracks.  AY told her that if she was objecting they would need to have something in place the following day because of the Christmas holiday.  She told her they would go for MX described as a barring order, clearly a reference to an application for a displacement order under section 29 of the Act.  MX asked what she would need to do.  AY told her she would need to consult a solicitor; she would have to get legal advice.

41.	  MX says she was left in no doubt that she could only oppose the defendant’s application for a barring order if she was represented by a solicitor.  There was then a discussion about how such legal representation could be funded.  MX knew from experience a year or two earlier that she would not be eligible for legal aid.  This had been in connection with her trying to have contact with her grandchildren.  She asked AY about the legal costs; AY told her she would need to speak to a solicitor about the costs and would need to explain her financial situation to a solicitor.

42.	MX said AY told her that if it went to court she would lose any say in her son’s care; she would cease to be his nearest relative.  It would be for the court to decide but because of the pressure of time MX knew she would not have time to go and see a solicitor.  She became upset and said at the end of the meeting that it was pointless.  AY had all the doctors and all the evidence; she, by contrast, had never even seen a medical report on her son.  

43.	If MX’s evidence as I have just summarised it is accurate and reliable she was presented with a false picture of her options.  She was not told that all she had to do was maintain the stance “I object” and the section 3 application would, for the time being, go no further.  She was not told if there was an application to the court to displace her as the nearest relative she could represent herself, go to court and tell the circuit judge in her own words why she was objecting.  She was not told that because of the intervening Christmas holiday any application to displace her as nearest relative would not be heard until at least mid-January – probably later – and in the meantime the section 2 order would remain in force.  In my judgment these were crucial matters of which she needed to be and should have been informed for there to be proper and effective consultation for the purpose of section 11(4) of the Act.  

44.	AY has been unable to give oral evidence therefore it is appropriate that I set out in full the relevant part of her witness statement which deals with the meeting at MX’s home on the evening of 21 December.  AY says that although by that stage her assessment was that the criteria for a section 3 application were met, she wanted to consult further with MX for three reasons.  First, she wanted to discuss her reasons with her; secondly, to advise MX of her rights; thirdly, to ascertain MX’s views and whether she objected.  AY says she considered taking another AMHP colleague with her to assist with the consultation and to verify what was said.  In the event she decided against this because she felt it might have been intimidating for there to be two professional people visiting MX at home.  In hindsight it would have been valuable evidentially had there been another colleague present.

45.	  It is clear that AY was sufficiently concerned to realise the importance of making a full record of what was said.  AY’s statement continues as follows, 

“11. At 17:30 on 21 December 2010 I visited [MX] at her home.  The weather was extremely bad and the area was covered in snow.  The house was quite difficult to find and I had to phone [MX] to request directions.  

12. When I arrived at the home, another adult female was present, who I believe was [MX]’s sister and who subsequently remained in the kitchen.  

13. At the home, most of the discussion took place in the living room.  I introduced myself.  I explained that I was an AMHP.  I explained the process for a Mental Health Act assessment.  I stated that I and two doctors had assessed [CX] and decided that a Section 3 would be necessary given the significant concerns around his mental health and the risk he posed to himself and others.  

14. During the discussion, [MX] was at times tearful.  She explained her close bond with [CX].  She was angry that he had gone into hospital informally and that the ‘ground rules’ had been changed.  She expressed dissatisfaction regarding the prescribed medication being used.  She voiced her dissatisfaction with her lack of involvement in the assessment for the Section 2, as well as dissatisfaction with the arrangements with the ward and general management of [CX’s] care by the multi-disciplinary team.  I suggested that advocacy would be useful to both herself and [CX] and suggested that I make a referral to Rethink.  [MX] stated that she would discuss this with [CX] and phone me the next morning.  

15. During the consultation it was difficult for me to establish compassionate rapport with [MX].  She appeared to be struggling with pent-up frustration with mental health services in general.  At no point did I feel that I interrupted her, was rude to her or disrespectful.  In fact a substantial amount of time was spent with me listening passively to [MX] as she expressed her feelings.  

16. I asked [MX] if she objected to the Section 3.  I explained the difference between not agreeing and objecting.  [MX] did not give me a clear answer but stated that she would need to speak with [CX].  

17. I explained that I could not go ahead with the application if she objected.  I explained to [MX] her rights and that as the nearest relative she had the right to object.  I advised that the Section 3 could not go ahead at this stage if she objected, but because I was concerned about risk issues if [CX] was not on a Section 3 I would find it necessary to consider court proceedings in order to … ascertain whether her objection was unreasonable or not.  I advised [MX] that as the nearest relative she had the power to discharge [CX] from hospital by furnishing the Hospital Managers with a report stating her intention to do so.  I also advised [MX] that it was likely that if she did so the responsible clinician may assess it necessary to provide his own report barring such a discharge if he was concerned about the risk.  I recall that [MX] stated there was no point in objecting ‘as all the legal weight was on my side’.  I discouraged her from this thought advising that she was perfectly within her legal rights to object and that she would have been entitled to legal representation.  

18. I explained that I would need to speak to her tomorrow for an answer and if she did object that I would need to speak to my legal services solicitor to discuss her objection and whether or not I would be required to make an application to court to consider if her objection was reasonable.  I advised that she would be informed about this and that she would need to obtain legal advice.  [MX] asked me about the cost of getting legal advice and I stated that I was unsure but that if she sought legal advice they would give her this information.  

19. At no time during this discussion would I have made reference to [MX] having any parental rights removed by the court.  [CX] is over 18 and this does not make sense.  

20. I believe that I gave [MX] the Mental Health Act leaflets which advise the nearest relative of their rights but cannot be definite about this.

21. The meeting at the house ended with no definite objection by [MX].  [MX] stated that she needed to speak with [CX] and that she would get back to me with an answer the next morning.  

22. I was at the house approximately 45 minutes.”

46.	The following observations may be made in relation to this account.  Although AY says she explained the difference between not agreeing and objecting, she does not say what the explanation was that she gave.  MX disputes that there was any such conversation.  In AY’s record of her final conversation with MX the following morning she does refer in terms to her own perception of not agreeing and objecting.  I shall return to this.  It seems likely that AY has misplaced that conversation – if it took place at all – as happening in the meeting at the home rather than on the telephone the next day.  AY says that she advised MX that as her son’s nearest relative she had the power to discharge him from hospital by furnishing the managers with a report stating her intention to do so.  This power is indeed given by section 23 of the Act.  MX is adamant that she was never given any such advice.  Had she known that she had such a right she would have exercised it.  It was in this context that AY says in her witness statement that during the conversation she added by way of explanation that if MX were to exercise the power to discharge her son in this way it was likely that the responsible clinician would deem it necessary to provide his own report barring such a discharge.  MX denies that this was mentioned either, but she does recall the word “barring” being used in a different context of an application to the court to displace her as nearest relative.

47.	  It is clear from AY’s witness statement – although there is no mention of it in her narrative record of the meeting in her report – that there was a discussion about the need for legal advice and the cost of obtaining legal advice, putting it neutrally.  This is the nub of the matter to which I shall return. 

48.	 AY says that at no time did she make reference to MX having any parental rights removed by the court.  She does not say in her statement whether, albeit not in those words, she spelt out that the consequence of a successful application to displace MX as nearest relative would in effect be to remove all the rights she currently enjoyed as nearest relative in relation to her son’s welfare and treatment, which is how MX understood it.

49.	Finally, AY says that she believes that she gave MX the Mental Health Act leaflets advising nearest relatives of their rights but she cannot be definite about it.  MX was adamant that she was not given such leaflets.  I find as a fact that AY did not give MX any leaflets.  That is regrettable because had she done so MX would have had the opportunity to reflect overnight on what she was told at the meeting that afternoon with the advantage of reading at her leisure what would be involved in an application to displace her as nearest relative, should that be the course AY was forced to pursue by reason of a continuing objection on MX’s part the next day.

50.	What is lacking from AY’s witness statement is any recollection or assertion that she informed MX of the practical effect in the short term of an application to displace her as nearest relative.  That is particularly surprising given that her attention had been drawn to the relevant provisions of the statute by the solicitor only a short time earlier.  In the light of the solicitor’s evidence, which I accept, AY was well aware of the procedural consequences and in particular the fact that the section 2 order would continue in the interim until the displacement application was finally disposed of.  I also accept the solicitor’s evidence that she had told AY on the phone that the court would not re-open for business until after the New Year.  It follows that AY must have been aware before the 5.30pm meeting that if MX persisted in her objection the matter could not come to court until mid-January at the earliest.  

51.	As to the extent more generally to which AY informed MX of her rights as nearest relative and explained those rights, there is no mention whatsoever by AY in the narrative account of the meeting in her report of the fall-back procedure of applying for an order displacing her as nearest relative.  The only indication in AY’s assessment report that any of the rights of the nearest relative were explained is the tick-box section under the heading “Nearest Relative Details”, where the question, “Has the nearest relative been informed of their rights?” is ticked “Yes”.  There is no evidence before me as to what these rights would have been and whether, for example, the AMHP would be expected to work through a check-list.  Mr C, AY’s team leader, was reminded in cross-examination of paragraph 4.65 of the Code of Practice which requires that the nearest relative be informed of their role and rights under the Act.  He said that the staff would do that, or at least they should do.

52.	The outcome of the 5.30 pm meeting was inconclusive.  MX was upset and made it clear she wanted to talk to her son about the matter.  It was agreed that MX would telephone AY the next day.  Ideally MX would have visited her son that evening to discuss the matter with him face to face.  However, in view of the inclement weather, she had to be content with a telephone conversation with her son.  She told him the gist of what had been discussed with AY and that it would be necessary for her to have a solicitor if she was persisting in her objection.  She told him that AY had referred to the doctors’ reports and that the doctors were firmly in favour of a section 3 application.  His response was, “Don’t get a solicitor, you can’t afford it.  We’re not going to win anyway.”  In cross-examination MX accepted that if her son had said instead, “Come on, do it for me” she would have maintained her objection and somehow found the money for a solicitor or dealt with the case herself.  I accept MX’s evidence about the conversation she had with her son.  I have no doubt that prominent in her son’s reasoning in encouraging her to withdraw her objection was his and her belief that she would have to engage a solicitor to act for her which she could simply not afford.  

53.	There is little dispute as to the conversation that took place around 10 am the next day, Tuesday 22 December, between AY and MX.  Although the arrangement had been that MX would telephone AY, in fact it was AY who telephoned her.  It is AY’s recollection, set out in her witness statement,  that MX apologised for not telephoning and possibly referred to an appointment with her physiotherapist which had delayed her.  This turned out to be correct.  MX confirmed that she did indeed have such an appointment that morning which she must have mentioned to AY on the telephone.  That is some evidence in support of AY’s accurate recall of detail beyond the narrative in her assessment report.

54.	AY prepared and signed a typed record of the conversation that morning and its outcome.  It was appended as an extra page to the manuscript report she submitted to the hospital managers that morning.  The record she made reads as follows:

“Following home visit to Nearest Relative, [MX] 21.12.10 AMHP contacted [MX] by telephone at 10AM 22.12.10.  [MX] stated that she had spoken with [CX] (son) after my visit the previous evening and they have agreed that she will not object to the application for Section 3 (MHA 1983).  AMHP expressed her opinion that there is a difference between [not] consenting to the application for treatment and objecting to it.  It was AMHPs perception that [MX] understood this distinction and that while she is not consenting to the application for S3 MHA she has withdrawn her objection to it.  (see page 83, 1-140 Jones 12th Edition).  [MX] clearly stated 22.12.10 that she is withdrawing her objection to S.3 Mental Health Act 1983 in relation to her son [CX’s] treatment in hospital.  

Legal services (JY) informed.”

It is this record that contains somewhat curiously the reference to AY’s opinion as to the difference between not objecting to a section 3 application for treatment and agreeing to it.  This was, I find, an accurate record of AY’s perception of MX’s final position, even though MX did not use those exact words.  

55.	In her witness statement AY gives the following account of the conversation that morning on the telephone:

“23. On the morning of 22 December 2010 I made a further telephone call to JY in legal services.  I discussed my consultation with [MX] above and JY advised me again of the time scales should it be necessary to apply to court for possible displacement of the nearest relative and the procedure required.  

24. By 10 o'clock on 22 December 2010 as I had not heard from [MX] I phoned her.  I apologised for phoning as she had previously stated that she would ring me.  [MX] apologised for not calling possibly referring to an appointment with the physio.  I asked how her discussion with [CX] had gone.  [MX] informed me that she had spoken with [CX] after my visit the previous evening and they agreed she would not object to the Section 3.  She stated that she was not in full agreement with the Section 3 but would not object.  In my experience this is not an unusual stance for the nearest relative to take.  

25. We discussed the advocacy issue and [MX] asked that I make a referral to advocacy on both her and [CX’s] behalf, which I subsequently made to Rethink.  

26. At no point did I state that ‘I need your answer immediately’ as this call was a follow-up to our agreement the previous evening.  

27. I explained that I would be going to the hospital to complete the application for a Section 3.  I cannot recall whether I made any further mention of rights at this time as these had been discussed in detail the previous evening and I did not want to overwhelm [MX] with ‘legalese’.”

56.	In cross-examination MX accepted that her stance in that conversation was accurately summarised in the note I have just read.  She stated that she was not in full agreement with section 3 but would not object.  MX also agreed that it was correct that she had asked for a referral to advocacy both for herself and her son.  Although AY apparently made such a referral it did not in fact result in any advocate being provided, at least for MX.  I accept MX’s evidence on that point.

57.	Although AY denies that she told MX she needed an answer immediately, there clearly was pressure of time.  I find that MX was left in no doubt that she had to give an answer there and then.  By the time of this telephone conversation at 10 am AY had already spoken to the solicitor again that morning, confirming that she was awaiting a phone call from MX.  It was agreed that due to the tight timescale they would need to proceed on the basis of no consent.  The solicitor’s advice was that AY should start preparing her witness statement for the displacement application.  In a subsequent telephone call to the solicitor later that morning AY confirmed that MX had now said she would not consent but she would not actively object, having seen her son, and that he agreed to the section 3.

58.	  Importantly the solicitor also recalls quite clearly that she advised AY to make full recordings of her telephone conversations with MX and to contact her again when the section 3 order was in place because only then could she, the solicitor, discontinue preparations for the displacement application.  The solicitor confirmed in evidence that this advice to AY extended not simply to the final conversation in which the objection was withdrawn, but to all the conversations she had had with MX over the two days.  This is important because it emphasises that AY was well aware on the day of the need to make a full record of all the advice she had been given whilst it was fresh in her mind.  As I have already explained, in fact there is no mention at all in any of the narrative records made by AY of even the possibility of a displacement application, let alone the practical implications of and procedure for such an application.

Findings of fact
59.	I have set out the evidence at length because of the unusual circumstances of the case forensically arising from the absence of AY from the witness box.  The key factual issue is whether MX was led to believe by AY at the 5.30pm meeting at the house that she would have to be legally represented if she wished to maintain her objection to the section 3 application.  I find as a fact that she was led to believe that this was the position.  My reasons are as follows. 

60.	 First, although the 5.30pm meeting at her home was an emotional and upsetting experience, I have no doubt that MX would have understood the difference between being told that it was desirable that she take legal advice on the one hand, and being told on the other hand that she would have to be represented if she were to maintain her objection and oppose proceedings to displace her or bar her as nearest relative.  I had a good opportunity to observe and assess MX in the witness box.  She is clearly an intelligent and articulate woman, whose sole motivation throughout has been the care of her son.  However, the prospect of having to pay for legal representation in a matter as complex as this must, I find, have been presented to her as an insuperable obstacle.  That is how it stuck in her memory.  

61.	Secondly, despite Mr Swirsky’s submissions, I do not attach particular importance to the fact that MX has withdrawn somewhat from the assertion made on the claimant’s behalf in the letter before claim dated 4 April 2011 in which it was said that AY had advised MX in terms which included the following,:

“If she chose to object to the section 3 then she must engage the services of a Solicitor to represent her at Court and she must pay for that herself.”

MX has accepted, on reflection and in the light of AY’s witness statement, that the last few words of this assertion are inaccurate and that she was not told that she would definitely have to pay for that herself.  Rather, she was told that the solicitor she consulted would advise her as to whether her finances were such as to entitle her to legal aid.  Nevertheless, the force with which the remainder of the assertion was put in the letter before claim mirrored, as it is, in MX’s witness statements, supports the conclusion that it was a message conveyed to her so strongly as to leave a very deep impression.  

62.	Thirdly, I accept, as Mr Sachdeva submits, that there is in reality no explanation for MX’s change of position overnight except that, to adopt a metaphor of my own, the stuffing had been knocked out of her by the advice that she could not maintain her objection without representation at court by a solicitor.  Her son commendably wanted to protect her from the consequences of having to try to find the money to pay for a solicitor.  

63.	Fourthly, in her witness statement AY confirms to a significant extent the accuracy of MX’s evidence on this vital point.  She says in that witness statement that she told MX that if she did object when they spoke again the next day there was likely to be an application to the court to consider if her objection was reasonable.  The statement continues: 

“I advised that she would be informed about this and she would need to obtain legal advice.  [MX] asked me about the cost of getting legal advice and I said that I was unsure but that if she sought legal advice they would give her this information.”(emphasis added)

One must of course be careful not to read more into the use of a particular word than is proper, but it is striking that AY says in terms in this sentence that she told MX that she would “need” to obtain legal advice.  It must be assumed that AY had read MX’s witness statement before she made her own witness statement.  Indeed, at various points in her statement she refers to and takes issue with various phrases and assertions in MX’s statement.  AY cannot have failed to notice that in paragraph 19 of MX’s witness statement she says that she was advised by AY “that if I wanted to object there would be court proceedings and I would have to get my own solicitor and pay for it myself”.  Leaving aside the question of payment, the assertion that she would “have to get” her own solicitor was put in strong terms.  Notwithstanding this, AY does not take issue with it as such in her witness statement for example by suggesting that she never said anything to give the impression that MX could not maintain her objection without the services of a solicitor to represent her.  She does not say either that she told MX she would be entitled to represent herself.  

64.	Fifthly, in countering the evidence of Mrs B, AY can rely upon no contemporaneous record of the 5.30pm conversation at the house, despite the advice from the solicitor that she should make a full record of all the conversations she had.  Indeed, as I have already observed, there is no mention at all in the narrative of the assessment report of any discussion whatsoever with MX of her rights as nearest relative and the procedure for displacing her as nearest relative.  This was, in my view, a serious omission, particular when AY had herself contemplated taking a colleague with her initially as a witness to what would be said.  It is regrettable that she gave MX no leaflet explaining her rights.  That might have prevented these proceedings by forcing the issue and prompting a displacement application to the county court.

65.	Although it is of less importance, I also find as a fact that AY did not inform MX of her rights under section 23 of the Act to discharge herself at any time.  I accept that this option came as a complete surprise to MX when she learned of it only recently.  It is significant that within a day or two of discovering that she had such a right, she exercised it.  I find as a fact that AY gave MX no information as to the nature of the proceedings involved in a displacement application save to say that the court would have to decide whether to uphold her objection.  In particular, and crucially, despite having the information at her fingertips AY did not explain that if MX’s final word the next morning was “I object” then the section 3 application could go no further.  Nor did AY explain that if a displacement application were made it would not be heard until mid-January at the earliest and that in the interim the section 2 order would continue.  This in itself would have been some consolation to MX because, as AY’s narrative record confirms, MX had expressed her willingness to accept a continuation of the section 2 order as second best had it been legally possible.

66.	I find as a fact that had AY explained the procedure for the displacement application as outlined above, and had she made it clear to MX that she was perfectly entitled to represent herself and tell the judge why she maintained her objection, MX would never have withdrawn her objection the following day as she did.  Although I make no finding upon it – nor could I – it should be noted that MX’s position in defending a displacement application in the county court would have been by no means hopeless.  The issue for the judge would have been whether MX’s objection in the light of the reasons she advanced was within the band of the reasonable stances which a nearest relative in her position could adopt.  By the time any such application was heard MX would at least have had access for the first time to the medical reports on her son.  Indeed, if, in the light of seeing those reports and on mature reflection, she then decided to abandon her objection, there would have been no difficulty in doing so and very probably no adverse costs implications would have arisen.  There would at the very least have been a valuable breathing space over the Christmas period and substantially beyond during which matters could have been considered by her, by her son and by the family in a far more measured way.  As it was, through no fault of her own, MX found herself in the position of having to make a very important decision in a very short space of time indeed on what I find to have been inaccurate and incomplete advice as to her position and her rights.

67.	In reaching these conclusions I should emphasise that there has been – and is – no suggestion that AY acted in bad faith at any stage.  Quite the reverse.  She too found herself in a very difficult position and was trying to do her best.  She was perfectly entitled to point out to MX at the 5.30pm meeting the advantages, as she saw them, for the claimant in the making of a section 3 application.  I note in particular that paragraph 4.65 of the Code of Practice recognises the proper role of reasoned argument by an AMHP in consulting the nearest relative.  That paragraph includes the following sentence,

“If it is thought necessary to proceed with the application to ensure the patient’s safety and the nearest relative cannot be persuaded to agree, the AMHP will need to consider applying to the county court for the nearest relative’s displacement under section 29 of the Act.” (emphasis added)

The guidance therefore recognises the proper place of persuasion.  Nevertheless, however well meaning AY’s approach, the effect of her dealings with MX was regrettably that she acted contrary both to the letter and spirit of the Code of Practice and contrary to the requirements of section 11(4) of the Act.
Conclusions
68.  The burden of proof is upon the defendant to satisfy me that the claimant’s detention was lawful.  In the light of my findings the defendant has failed to persuade me that there was sufficiently informed consultation with MX to satisfy the requirement of the Act that the nearest relative be consulted before the section 3 application was made.  Furthermore, the defendant has failed to persuade me that the withdrawal by MX of her objection to the section 3 application was a full and effective withdrawal.  On the contrary, I am driven to conclude that her withdrawal of consent was initiated by the incorrect and misleading advice she was given that she could only maintain her objection in the face of a displacement application if she was legally represented in the court proceedings which would follow.  I should add that even if the burden of proof had been the other way  round,  I would have been satisfied and sure on all the evidence before me of the matters which I have found.

68.	I would add only this final observation.  This case turns entirely upon its unusual facts.  My findings are not intended to prescribe, and must not be interpreted as prescribing in any way what may or may not amount to sufficient consultation in another case.  Each case is different and what is required by way of consultation will depend upon the individual facts and circumstances and upon the personalities of those involved.

69.	For all these reasons I grant the application for a writ of habeas corpus. A writ for the immediate release of the claimant from detention under section 3 of the Mental Health Act 1983 must follow.  The claimant is at present on a period of home leave in any event so the release will be symbolic and technical rather than practical and physical.

70.	  It will be for the doctors in charge of his care, in conjunction with the hospital managers and the defendant, to decide whether further steps should be taken to seek his admission to hospital either on a voluntary basis or under compulsion.  However, any such decision cannot be allowed to delay the issuing of the writ of habeas corpus which I now grant.