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New claims against social workers

3 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 claimants 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 claimants detention had been unlawful from the start because of the nearest relatives objection. Whilst the mental health trust had acted lawfully and had a defence against any damages claim this made no difference to the local authoritys 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 claimants 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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