Legal Updates

R (on the application of E) v Bristol City Council

In this case a woman (E) asked Social Services not to contact her nearest relative if, in future, they decided that she should be sectioned pursuant to the Mental Health Act 1983. There was evidence that such an approach would cause her considerable distress, and the High Court declared that it would be “not reasonably practicable” and therefore unnecessary to consult the nearest relative. It might interfere with her right to private life under Article 8 of the ECHR were the consultation to take place.

In coming to this Judgment the High Court rejected the advice contained in paragraph 2.16 of the Mental Health Act 1983 Code of Practice that “Practicability refers to the availability of the nearest relative and not to the appropriateness of informing or consulting the person concerned.” This advice is no longer correct and the Department of Health has issued guidance in the light of this decision as to when it will be “impracticable” for an Approved Social Worker to consult a patient’s nearest relative.

The Department of Health guidance suggests that an ASW has to conduct a balancing act when deciding whether or not it is impracticable to consult a nearest relative. The ASW should consider whether doing so would lead to a breach of the patient’s rights under Article 8 of the ECHR (right to respect for private and family life).

Practitioners are referred to the guidance at www.dh.gov.uk/PolicyAndGuidance.

Adam Hartrick
Solicitor
Hempson's Solicitors