Distress when council usurped mother as nearest relative

What’s the issue?
Emergency legal interventions.

What’s the case?
R (Holloway) v Oxfordshire Council.

What was the case about?
The obligations of local authorities when, in order to respond to a care crisis, urgent legal proceedings have to be taken. In particular, it concerned the involvement of family members in those proceedings.

How did the case arise?
Adrian Holloway was sectioned under the Mental Health Act 1983. Due to an error, his hospital failed to renew his detention. When the mistake came to light, Holloway’s doctors thought he was too dangerous to release and imposed an emergency “holding admission” which authorised 72 hours’ detention. Holloway’s doctors decided that he should then be re-sectioned: in effect, they were starting again with a new section.

This proposal meant that Holloway’s mother, as his “nearest relative”, took centre stage because he could not be sectioned without her consent. She refused consent so Holloway’s approved social worker made an emergency application to the county court for her interim displacement as nearest relative which, under the Mental Health Act, would let the local authority become the nearest relative.

The ASW did not give notice to Holloway’s mother of the displacement application, despite having close contact with her during the holding admission. Also, the council’s legal department, which prepared the application, failed to ensure that notice was given.

An interim displacement order was made. So, at the end of the holding admission, the new nearest relative, the council, gave consent and Holloway was sectioned. Because Holloway’s mother was unaware of the application, she did not have the chance to appear in court to argue against it. The first she knew was when court papers were served on her after the hearing. This oversight was later considered by the High Court.

What did the court decide?
The High Court was highly critical of the council and its legal department for failing to give Holloway’s mother notice. The court said that their conduct fell “far below what is required of a public authority in the exercise of its responsibilities to persons with mental illness”.

Are there wider points here?
The courts are becoming concerned about without-notice applications. Recent court decisions have expressed disquiet about local authority eagerness to make such applications. These have been applications for emergency placement orders under the Children Act 1989 and declarations that family members can be prevented from removing relatives from care homes.

The higher courts have emphasised the exceptional nature of without-notice applications and the need for local authority applicants, given that the other party does not know what is happening, to present a balanced view of the case.

The view from the courtroom

Barrister Kate Olley, who appeared on behalf of Holloway in the county court, said: “A lot of hurt and upset could have been avoided if the ASW had mentioned to Holloway’s mother that an application was going to be made. It would be desirable for local authorities to consider putting a system in place for cases like this to include consideration of whether it is strictly necessary and justifiable to keep the nearest relative out of the picture.”

Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care’s legal expert

Want to read more? The full case report is available