new claims against social workers
10 March 2011
We have done a lot of training for social workers over the
years. And we often used to say to them, only partly tongue in
cheek, that if they wanted to avoid being sued they should opt for
a career in adult rather than child social work. But in a recent
judgment, (TTM (by his litigation friend TM) (1) Hackney London
Borough Council (2) East London NHS Foundation Trust (3) Secretary
of State for Health), the Court of Appeal has eroded our good
advice.
Background
It takes a combination of social workers and clinicians to get a
person compulsorily detained under the Mental Health Act 1983. A
social worker has to make the application (we used to call them
approved social workers but nowadays they are known as approved
mental health professionals) and the application has to be
supported by two doctors. The approved mental health professional
cannot make the application if the nearest relative objects
(proceedings to displace the Nearest Relative are used to get
around an unreasonable objection).
Facts
In TTM v LB Hackney & Others the approved mental health
professional honestly, but mistakenly, believed that the claimant’s
nearest relative had lifted his earlier objection. Two doctors
supported the application to detain the claimant so he was
accordingly detained by the mental health trust.
The Court of Appeal found that the claimant’s detention had been
unlawful from the start because of the nearest relative’s
objection. Whilst the mental health trust had acted lawfully and
had a defence against any damages claim this made no difference to
the local authority’s position. Since the approved mental health
professional had not acted in accordance with the Mental Health Act
the detention was unlawful and a breach of the claimant’s human
rights which entitled him to compensation.
The Court of Appeal confirmed that habeas corpus is the correct
means by which to challenge an unlawful detention. Since the advent
of the Human Rights Act 1998 local authorities cannot rely on the
Mental Health Act as a blanket protection against claims for
unlawful detention.
Implications
Following the judgment, local authorities are likely to see an
increase in challenges alleging that the approved mental health
professional did not have reasonable grounds for believing that the
nearest relative consented to the application for detention.
There will be more claims and payments of damages.
Good risk management suggests that the decisions of approved
mental health professionals should be clearly documented.
You will need to make sure that lines of communication are
opened with your in-house lawyers so that the insurance team is
notified if there are any applications for habeas corpus.
Damages are likely to be small but if they were to exceed the
deductible they would have to be met from the insurance fund
because you are unlikely to be insured for these human rights
claims.
And next time we do a training session for social workers we
will have to tell them that a career in adult social work is not
the claims free paradise that it once was!
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