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Judge grants writ of habeas corpus over unlawful detention in mental hospital

A writ of habeas corpus has been granted against an unnamed local authority after a judge decided a patient had been unlawfully detained in a mental hospital and his mother had been given misleading advice as to her rights.

The case of ‘CX’ against the authority and an NHS trust, also unnamed, was heard by Mr Justice Spencer in the Administrative Court.

CX was detained under section 3 of the Mental Health Act 1983 on 22 December 2010 on the application of an approved mental health professional employed by the local authority.

It was argued that his detention was unlawful because of a lack of proper consultation with his mother, and because she was misled as to her statutory rights when she withdrew her objection to the application for his detention.

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CX is 21 and suffers from schizophrenia. On 30 November 2010 he was compulsorily detained for assessment for a period due to expire on 27 December.

His mother was unhappy with the care given but the treating psychiatrist felt CX was a danger to himself and others and asked for a section 3 assessment.

The act though says that any hospital admission under section 3 cannot be made where the person’s nearest relative objects, or has not been consulted.

The judge said it was for the local authority to satisfy him that CX’s detention was lawful and that it “failed to persuade me that there was sufficiently informed consultation with MX [CX’s mother] to satisfy the requirement of the Act that the nearest relative be consulted before the section 3 application was made”.

He was also not satisfied that MX made a “full and effective” withdrawal of her objection to CX’s detention.

“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,” the judge said.

“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.”

He granted an immediate writ of habeas corpus but said the case had turned entirely on “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,” the judge said.

“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.”

Mark Smulian

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