The MHA still offers protection where the wrong nearest relative is identified

    Hempsons specialises in community and
    continuing care.
    The firm has three offices, in London, Manchester and
    Harrogate, and its teams are frequently called upon to
    advise on relevant statute law and on the drafting and
    implementation of policies and entitlement criteria. They
    have been involved in some of the most significant legal
    cases in the field.

    A recent High Court judgment provides guidance on the impact of the
    European Convention on Human Rights on applications for detention
    under the Mental Health Act.

    In McLarnon v Bradford District Care Trust and two others, a
    patient had been detained under section 3 of the Mental Health Act
    1983 (‘MHA 1983’).  When the Trust learned that her
    nearest relative had been incorrectly identified. The approved
    social worker thought the mother was the nearest relative, but it
    was someone else. The ASW consulted the mother before making a
    detention application but did not consult the true nearest
    relative. The question was whether the Trust was liable for false
    imprisonment where it had acted on the basis of the ASW’s
    application. It discharged the patient, but she sued for both false
    imprisonment and a breach of the “right to liberty”
    contained in article five of the ECHR.

    The Trust asked for the claim to be struck out, arguing that
    because the application appeared to be “duly made”,
    section 6(3) of the MHA entitled it to detain the patient.  It
    cited a Court of Appeal decision, Re S-C, on the power to detain
    under MHA 1983, and in particular, the comment of Sir Thomas
    Bingham that:

    “A mental hospital is not obliged to act like a private
    detective; it can take documents at face value provided they appear
    to conform with the requirements of the statute the hospital is
    entitled to act upon them.” 

    The patient argued that, since the coming of the Human Rights Act
    1998, false imprisonment was a tort of strict liability and Re S-C
    was no longer good law.  She said that although the Trust might
    have had no reason to suspect that her mother was not her nearest
    relative, it could not rely on the MHA protection. 

    The Court found for the Trust.  Whilst it accepted that article
    5(1) of the Human Rights Act requires detention to be in accordance
    with a procedure prescribed by law, it said that the requisite
    procedure is the one set out in MHA 1983, section 6.  The Court
    held that section 6 is not incompatible with Human Rights Act
    Article 5, so that if MHA 1983 is complied with, there can be no
    question of an unlawful detention.  Here, the hospital managers had
    followed the correct procedure, so the patient’s detention
    was authorised by statute and complied with the ECHR.  As in Re
    S-C, MHA 1983 section 6(3) gave the hospital a defence and the
    patient’s claim would be struck out.

    The patient appealed to the High Court, but on 22 July 2004, Mr
    Justice Eady upheld the original decision and dismissed the

    David Roberts
    Solicitor, Hempsons

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