The Nearest Relative Handbook, 2nd Edition

The Nearest Relative Handbook

of related interest Community Care Practice and the Law Fourth Edition

Michael Mandelstam ISBN 978 1 84310 691 3

Safeguarding Vulnerable Adults and the Law Michael Mandelstam ISBN 978 1 84310 692 0

Children with Mental Disorder and the Law A Guide to Law and Practice Anthony Harbour ISBN 978 1 84310 576 3

Advance Directives in Mental Health Theory, Practice and Ethics Jacqueline Atkinson ISBN 978 1 84310 483 4

Guide to Mental Health for Families and Carers of People with Intellectual Disabilities Geraldine Holt, Anastasia Gratsa, Nick Bouras, Teresa Joyce, Mary Jane Spiller and Steve Hardy ISBN 978 1 84310 277 9

Mutual Support and Mental Health How to Make a Difference Maddy Loat ISBN 978 1 84310 530 5

Good Practice in the Law and Safeguarding Adults Criminal Justice and Adult Protection Edited by Jacki Pritchard ISBN 978 1 84310 937 2

Disabled Children and the Law Research and Good Practice Second Edition

Janet Read, Luke Clements and David Ruebain ISBN 978 1 84310 280 9

The Nearest Relative Handbook Second Edition

David Hewitt

Jessica Kingsley Publishers London and Philadelphia

Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen's Printer for Scotland. First edition published in the United Kingdom in 2007 by Jessica Kingsley Publishers. This edition published in the United Kingdom in 2009 by Jessica Kingsley Publishers 116 Pentonville Road London N1 9JB, UK and 400 Market Street, Suite 400 Philadelphia, PA 19106, USA www.jkp.com Copyright © David Hewitt 2007, 2009

All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication) without the written permission of the copyright owner except in accordance with the provisions of the Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Applications for the copyright owner’s written permission to reproduce any part of this publication should be addressed to the publisher. Warning: The doing of an unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution. Library of Congress Cataloging in Publication Data Hewitt, David, 1964The nearest relative handbook / David Hewitt. -- 2nd ed. p. cm. Includes bibliographical references and index. ISBN 978-1-84310-971-6 (pb : alk. paper) 1. Guardian and ward--England. 2. Guardian and ward--Wales. 3. Capacity and disability--England. 4. Capacity and disability--Wales. 5. Mental health laws--England. 6. Mental health laws--Wales. 7. Insanity (Law)--England. 8. Insanity (Law)--Wales. I. Title. KD785.H49 2008 346.4201'8--dc22 2008030208 British Library Cataloguing in Publication Data A CIP catalogue record for this book is available from the British Library ISBN 978 1 84310 971 6 ISBN pdf eBook 978 1 84642 690 2 Printed and bound in Great Britain by Athenaeum Press, Gateshead, Tyne and Wear

For my father, William Hewitt (1930–1981)

Acknowledgements I would not have been able to write this book without the curiosity, promptings, assistance and support of a large number of people. I am grateful to them all, but should like to express my particular thanks to Christopher Curran, Angela Downing and Mat Kinton, who generously agreed to read and comment upon this book while it was in draft. Any inaccuracies that remain are entirely mine. In addition, I am grateful to Joan Rapaport for allowing me to use her own indispensable work on the nearest relative. More generally, I should also like to thank my colleagues and friends for the help and opportunities they have been so willing to give me. They include Julie Austin, William Bingley, Tina Bond, Jeff Cohen, Charlotte Emmett, Stephen Evans, Malcolm Golightley, Catherine Grimshaw, Adam Hartrick, Chris Heginbotham, John Holmes, John Horne, Helen Kingston, Catherine McKenna, Ann Meadowcroft, Mike Ogley, Egon Prtak, David Roberts, Georgina Rowley, Richard Stone, Gerard de Zeeuw, and particularly Bill Leason. I should also like to thank the many readers who commented – often favourably – on the first edition of this book. They include Rob Brown, Yvonne French, Richard Jones and Jim Wiseman. My greatest debt of gratitude is owed to my mother, Anita Hewitt, and to my partner, Leigh. I know that to acknowledge my debt is certainly not to discharge it.

Contents LIST OF ABBREVIATIONS USED IN THIS BOOK

Introduction

8

9

1. The Recent History of the Nearest Relative

13

2. The Nearest Relative of an Adult

29

3. The Nearest Relative of Some Minors

63

4. Ceasing to be the Nearest Relative

69

5. Admission and the Nearest Relative

99

6. Discharge and the Nearest Relative

139

APPENDIX 1 STATUTORY EXTRACTS

153

APPENDIX 2 REGULATIONS

171

APPENDIX 3 SPECIMEN DOCUMENT

177

APPENDIX 4 LIST OF LEGAL CASES CITED

179

REFERENCES

183

SUBJECT INDEX

185

AUTHOR INDEX

189

List of abbreviations used in this book AMHP

Approved Mental Health Professional

ASW

Approved Social Worker

DPA 1998

Data Protection Act 1998

ECHR

European Convention on Human Rights

ECtHR

European Court of Human Rights

IMHA

Independent Mental Health Advocate

JCHR

Joint Committee on Human Rights

MHA 1983

Mental Health Act 1983

MHA 2007

Mental Health Act 2007

MHRT

Mental Health Review Tribunal

RC

Responsible Clinician

RMO

Responsible Medical Officer

Introduction Every so often, we are reminded that even now, more than a quarter of a century down the line, the Mental Health Act still has secrets to reveal. That is particularly so with the parts of the Act that deal with the nearest relative, and the reminders have come as often from Strasbourg as from the Strand. The role of nearest relative, or something like it, has been with us for a long time. That we still do not know everything about it might have something to do with the legislation itself. One thing is clear, even without the intervention of the courts: while the means by which the role will devolve upon a nearest relative are unsophisticated, they are also strangely, perhaps unnecessarily, complex.

Purpose That fact alone does not, however, account for all the argument about the nearest relative. There is a further complication; that we do not, in truth, know what the role is for. Although some might like to see the nearest relative as a patient’s representative, it seems that is not the purpose of the role, and, indeed, was not even its purpose before the 1983 Act was amended by that of 2007. And the Parliamentary debates that produced the new Act revealed something else we do not know: whether the nearest relative is a good thing or a bad thing; a bulwark against the abuse of patients or a significant contributor towards it.1 Perhaps we should not be surprised at the close scrutiny the role of nearest relative receives. Apart from that of patient, it is, after all, the only role in the whole mental health legal process that is not performed by a clinician, a lawyer, a social worker, a judge or a politician. Despite that, it carries with it some of the privileges these professionals enjoy. And yet, those privileges are enjoyed only at the discretion of the professionals. Maybe that explains why the nearest relative still exists, and why he or she

1

See, for example, Hansard, 26 February 2007, col 1403 (Baroness Royall of Blaisdon).

9

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THE NEAREST RELATIVE HANDBOOK

remained relatively untroubled by the significant changes the Government made to the 1983 Act. I wrote this book because I felt there was still sufficient ignorance or confusion about the nearest relative to justify it. My aim, however, remains a modest one: simply to set out the relevant law in a way that is clear and accessible. If I achieve that aim, the book will be of interest – and use – to practitioners, patients and nearest relatives alike.

What is a nearest relative? Once identified, a nearest relative will have significant powers. Those powers are contained in the Mental Health Act 1983, but although the rules for identifying a nearest relative are firm, they are also complex. Furthermore, there has long been a suspicion that the Act could do more to prevent abuse. Anyone subject to the Mental Health Act will have some of his or her principal rights taken away. In particular, he or she may be detained in hospital and forced to accept treatment for mental disorder, and he or she may have conditions imposed upon any subsequent discharge. The Act attempts to balance this loss of rights by providing some important safeguards. The nearest relative is one of those safeguards. Most detained patients, and many that are about to be detained, will have a nearest relative. The job of a nearest relative is to protect the patient by, it seems, acting in his or her interests. To that end, the nearest relative is given a number of powers. They include the power: ·

to object to detention or, conversely, to apply for it

·

to discharge a patient from detention or, less directly, to ask a Mental Health Review Tribunal to do so, and

·

to receive information about a patient’s detention.

These powers should not be underestimated. Although few patients are caused to be detained by their nearest relative, many will owe their liberty to that person, either because he or she would not allow an application to be made, or because he or she understood the power of discharge and was not afraid to exercise it. The powers of the nearest relative are also subject to important limits, which, if he or she exceeds them, will lead to him or her being stripped of the role. Until recently, however, it was only if he or she exceeded. The nearest relative is identified by a mental health professional, not chosen by a patient, and the rules that guide the process can be highly complex. This book explains those rules and gives examples of how they might be applied. It also discusses each of the powers of the nearest relative and the circumstances in which they might cease to apply.

INTRODUCTION

11

The role of nearest relative is often performed by someone close to the patient – a spouse, for example, or a carer, a sibling or a child. This might be logical and even desirable, but it can also create problems.

Changes Although the nearest relative should act in the interests of a patient, it is not always clear where those interests lie. In any case, experience shows that not every nearest relative respects the obligations of the office. Some of the changes made to the Mental Health Act since the first edition of this book was published aim to address this unfortunate state of affairs. So, for example, a patient now has the right to apply for his or her nearest relative to be displaced; and whoever sought it, a displacement order may be made by the court simply because a nearest relative is unsuitable for the role. A patient still has no influence over the initial selection of his or her nearest relative, however, and will have to bear the inconvenience, and possibly the cost, of any displacement proceedings. Whether this is an improvement on the previous state of affairs – and, crucially, whether it complies with the European Convention on Human Rights – remains to be seen.2 It was, of course, Convention considerations, and the litigation they produced, that prompted the Government to include nearest relative amendments in the 2007 Act. Although this new edition of my book looks in detail at those amendments, it contains little discussion of the proposals that preceded them. For that, readers are respectfully referred to paragraphs 1.23–1.77 of the first edition. The changes made by the 2007 Act are not the only difference between the first and second editions of this book. As might be expected, perhaps, I have also added such detail as seems relevant from the revised Code of Practice, the new Reference Guide and the new regulations, and also the new procedural rules for displacement applications. In order to supplement that detail, I have left in the text any old material – such as was contained in, for example, the old Memorandum on the Mental Health Act or the 1999 version of the Code of Practice – that still seems apposite and is not contradicted by the new Code. When quoting from the old Code or Memorandum, however, I have expressly referred to it as such. Because it might prove to be a significant bone of contention, I have included in this edition some material on ‘suitability’. For those struggling to understand what that loaded term might mean, the Parliamentary process yielded one or two nuggets, if not some hostages to fortune. I have tried to ensure that this book remains abreast of significant developments in the case law, and I have added some more practical examples – in the 2

See, for example, Mental Health Act Commission 2008, para. 4.18.

12

THE NEAREST RELATIVE HANDBOOK

process, increasing their number by more than a third. Finally, I have taken this opportunity to revise, re-arrange and, in more than one case, correct the text. I hope that, in so doing, I have made it more comprehensive and comprehensible. In its second edition, this book realises the form I first conceived for it. That is gratifying, of course, but I know as well that it is chiefly due to the benevolence of those that read and used – and bought – the first edition, and to the indefatigability of my publisher. David Hewitt Manchester December 2008

A note on citations In citing Acts of Parliament, I have followed usual practice, so that, for example, 14 Geo III, c 49, which I have given as the citation for the Act for Regulating Private Madhouses of 1774,3 denotes the forty-ninth statute passed in the fourteenth year of the reign of King George III. I have also followed usual practice in referring to Her Majesty’s judges: Judges of the High Court, who are more formally known as ‘Mr (or Mrs) Justice Jackson’ (for example), are referred to here as ‘Jackson J’ or ‘HHJ [meaning His (or Her) Honour Judge] Jackson’. The same applies to Lords Justices of Appeal, who sit in the Court of Appeal and are formally known as ‘Lady (or Lord) Justice Hale’ (for example): they are referred to here as ‘Hale LJ’. Members of the Judicial Committee of the House of Lords are referred to here simply as ‘Lord Mustill’ (for example).

3

See para. 1.2.

CHAPTER 1

The Recent History of the Nearest Relative Although most of them now seem well established, the provisions in the Mental Health Act 1983 concerning the nearest relative – and particularly those dealing with his or her selection – have become very controversial. This chapter asks why that is so. First, however, a brief historical diversion might be in order.

Early history 1.1 In seventeenth- and eighteenth-century England, it was to families that the role of caring for the insane was primarily entrusted. But that caring role became harder in the nineteenth century, with the onward march of industrialisation and the attendant increase in urban living. Soon, the most significant role played by many families was to admit their relatives to the large new asylums. Significantly, even early admission documents tended to give equal space for the comments of doctors and relatives.1 1.2 The origins of the nearest relative (NR) might, perhaps, be found in the Act for Regulating Private Madhouses, which was introduced in 1774.2 It required that private madhouses be licensed, and introduced a process of certification for all but pauper lunatics.3 Crucially, the Act also said that, alongside the name of the advising physician or apothecary, the admission certificate should bear the name of the person committing the patient to confinement. That person was often a relative. 1.3 The Madhouses Act of 1828 went further, in requiring, not only the provision of two medical certificates, but also that a relative of the patient positively

1 2 3

Rapaport 2002, pp.75–77. 14 Geo III, c 49. Porter 1987, p.152. See also Rapaport 2003.

13

14

THE NEAREST RELATIVE HANDBOOK

authorise his or her confinement. That relative, or a proxy, would have to visit the patient at least once every six months.4 1.4 In 1845, the role of relatives was developed further, when the Lunacy Act of that year gave them the power to apply to an external regulator, the Lunacy Commission.5 1.5 The next significant step was the Lunacy Act 1890, which gave powers to the husband or wife of a confined patient, or to his or her ‘relative’. For the first time, the term ‘relative’ was defined. It would mean ‘a lineal ancestor, or a lineal descendant not more remote than great-grandfather or great-grandmother’.6 There was no hierarchy of such relatives, however, and no statutory way of distinguishing between them. Once recognised, a relative would have the power to petition the justices, either for a patient’s admission or for his or her discharge. For the first time, it would also be possible for a substitute to be appointed, who could petition on behalf of a spouse or relative who was incapable of doing so. 1.6 As far as discharge was concerned, the 1890 Act distinguished between a private patient and one maintained by organs of the state. The former could be discharged by the person who had petitioned for his or her detention, or, if that person was dead or otherwise incapable, by any spouse, or by any father or any mother, or, finally, by ‘any one of the nearest kin of the patient’.7 Discharge could, however, be barred by the relevant medical officer, who would have to certify that the patient was dangerous and unfit to be at large. In such circumstances, discharge would only be effective if it was ratified by two visitors of the institution in which the patient was confined or by members of the Board of Control when it visited the institution.8 1.7 The Lunacy Act gave no such powers to the relative of a pauper patient, who could only be discharged by the authority that was liable to maintain him or her or by any two members of the visiting committee of the relevant institution.9 It would, however, be open to a relative of the patient (amongst others) to make application to the committee in that regard, but he or she would have to give an undertaking that, if released, the patient would no longer be maintained at the public expense, and would be properly taken care of and prevented from doing injury to himself or herself or to others.10

4 5 6 7 8 9 10

9 Geo IV, c 41. 8 and 9 Vic, c 100. 53 Vic, c 5. Lunacy Act 1890, s 72. Ibid., s 74. Ibid., ss 73 and 74. Ibid., s 79.

THE RECENT HISTORY OF THE NEAREST RELATIVE

15

1.8 These powers were supplemented by the Mental Treatment Act 1930, which gave a relative the power to object to a patient’s confinement (unless he or she did so unreasonably or was unavailable).11 1.9 In the post-war period, the Percy Commission marked a watershed in the regulation of mental health care.12 It accepted that relatives had a vital role to play, both in monitoring the need for a patient’s continued detention and in securing and providing aftercare. As a result, though the Commission recognised the possibility that relatives might abuse patients, it suggested such events would be rare. 1.10 The Percy Commission did not distinguish between different degrees of relationship. It did, however, recommend that where there was disagreement about care, it was the views of the relative nearest to the patient that should prevail. This was the first sign of a distinction that would eventually resolve itself into section 26 of the Mental Health Act 1983 (MHA 1983). Where, however, the disagreement was between relatives of equal proximity to the patient, the Percy Commission said only that hospitals would have to use their own discretion in deciding which of them to prefer. 1.11 When Parliament decided to give effect to the recommendations of the Percy Commission, it showed itself to be rather more concerned about the possibility of abuse.13 Indeed, Dr Edith Summerskill, who was at that time the shadow spokesman for health, voiced a concern that now seems prescient. Speaking in a debate on the Bill that would become the Mental Health Act 1959, she said: There is another point I want to make about the nearest relative. It is easy to dismiss this, but it is quite conceivable that the nearest relative is not necessarily the person most concerned to promote the welfare of the patient. […] At the moment we are discussing imponderables, but I confess that I find it difficult to suggest an alternative. No doubt we are thinking of our relatives and that ‘but by the grace of God there goes…’ some of us. We should be quite content that our relatives should be there to look after our welfare, but can that be said about all people?14

1.12 When it finally emerged, the MHA 1959: ·

11 12 13 14 15

introduced a hierarchical list of relatives (which is said to owe something to the Book of Common Prayer)15

20 and 21 Geo V, c 23. The Report of the Royal Commission of the Law Relating to Mental Illness and Mental Deficiency, 1957, London, HMSO, Cmnd 169. See also Rapaport 2002, p.87. Rapaport 2002, p.91. Hansard, 598 736, quoted in Rapaport 2003, p.52. Rapaport 2002, p.93.

16

THE NEAREST RELATIVE HANDBOOK ·

gave a nearest relative the power to detain a patient, or to object to his or her detention or seek his or her discharge

·

permitted a nearest relative to delegate his or her powers and

·

included a mechanism by which a nearest relative might be displaced.16

1.13 These nearest relative features of the 1959 Act found their way into its successor.

The Mental Health Act 1983 1.14 The Mental Health Act 1983 (MHA 1983) contains the following provisions concerning the nearest relative: ·

the definition of ‘nearest relative’ (and of ‘relative’)17

·

the nearest relative of a child or young person in care18

·

the nearest relative of a minor under guardianship19

·

the nearest relative of a child that is a ward of court20

·

the appointment by a court of an acting nearest relative21 and

·

the discharge and variation of orders appointing an acting nearest relative.22

Problems with the nearest relative 1.15 As we shall see, the nearest relative of a patient who is, or is to be, subject to MHA 1983 has a significant role to play. That role might include:

16 17 18 19 20 21 22 23 24 25

·

applying for the patient’s admission under section 2, 3 or 7 of MHA 198323

·

objecting to an application under section 3 or 7 of MHA 198324

·

receiving certain information about the patient25

7 and 8 Eliz II, c 72. MHA 1983, s 26. See Chapter 2 and Appendix 1. MHA 1983, s 27. See paras. 3.3–3.10 and Appendix 1. MHA 1983, s 28. See paras. 3.12–3.18 and Appendix 1. MHA 1983, s 33. See Appendix 1. MHA 1983, s 29. See paras. 4.25–4.56 and Appendix 1. MHA 1983, s 30. See paras. 4.92–4.103 and Appendix 1. MHA 1983, s 11(1). See paras. 5.37–5.52. MHA 1983, s 11(4). See paras. 5.84–5.88 and 5.90. MHA 1983, ss 132–133. See paras. 5.99–5.147.

THE RECENT HISTORY OF THE NEAREST RELATIVE ·

discharging the patient26 and

·

in certain circumstances, applying to a Mental Health Review Tribunal (MHRT) for the patient’s discharge.27

17

1.16 The identity of the nearest relative is to be determined according to criteria contained in section 26 of MHA 1983.28 Thus, a patient’s spouse or civil partner will ordinarily take precedence over all other candidates.29 However, the criteria are complex: a spouse or civil partner might, for example, be overreached by the patient’s child, parent or sibling, and all of them might be trumped by someone with whom the patient has been residing.30 1.17 Crucially, the section 26 criteria are fixed and inflexible, and they do not afford a patient any role in the determining of his or her nearest relative. As a result, a patient might find him- or herself with a nearest relative whom he or she neither approves of nor wants. 1.18 The Mental Health Act Commission has drawn attention to the problems that can arise where, for example, the nearest relative has previously abused the patient;31 and it has pointed out that his or her right to be notified of a proposed MHA 1983, section 3 admission might enable the nearest relative ‘to establish or re-establish contact with a patient in the most vulnerable of circumstances’.32 1.19 Because of the number and extent of the powers possessed by the nearest relative, and the attendant possibilities of abuse, it was always likely that MHA 1983, section 26 would be the subject of legal challenge. When that challenge finally came, it was based upon the European Convention on Human Rights (ECHR). 1.20 Although the ECHR became part of the domestic law of England and Wales only in October 2000, when the Human Rights Act 1998 came into force, it has been available to residents of the United Kingdom for much longer. They have, for example, had a right to petition the European Court of Human Rights (ECtHR) in Strasbourg since 1966. 1.21 It is Article 8 of the ECHR that has been particularly relevant to proceedings concerning the nearest relative provisions in MHA 1983. The Article states: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’33 26 27 28 29 30 31 32 33

MHA 1983, s 23(2). See paras. 6.2–6.36. MHA 1983, s 66(1)(g) and (h). See paras. 6.37–6.55. See Chapter 2. MHA 1983, s 26(1)(a). MHA 1983, s 26(5)(b), (1)(b)–(c) and (7). Mental Health Act Commission 1997, para. 10.10.3. Mental Health Act Commission 1999, para. 4.46. See, for example, Hewitt 1999.

18

THE NEAREST RELATIVE HANDBOOK

1.22 The two most significant ECHR challenges to the nearest relative provisions in MHA 1983 came in the cases of: ·

JT v. United Kingdom (2000)34 and

·

FC v. United Kingdom (1999).35

JT v. United Kingdom JT had been detained under section 3 of MHA 1983. She had a difficult relationship with her mother and wished her to be replaced as nearest relative with a social worker. JT claimed that because it did not make this possible, section 26 of MHA 1983 was in breach of ECHR, Article 8. When the case reached the ECtHR, the UK Government conceded that this was so. It agreed to pay JT damages of £500,together with her costs,and it promised to amend MHA 1983 (a) to permit a detained patient to apply to the court to replace a nearest relative to whom he or she reasonably objected and (b) to prevent certain categories of person from acting as nearest relative. It was not evident from this case whether the Government was planning to make the necessary changes immediately or merely as part of its on-going review of MHA 1983. An earlier case had, however, given a clear indication in this regard.

FC v. United Kingdom The circumstances of this case were very similar to those of the JT case and again, the Government conceded that section 26 of MHA 1983 breached Article 8 of the ECHR.As well as agreeing to pay the patient damages (this time of £2000), the Government promised to make a ‘legislative change [which] would form part of a more general review of the mental health legislation in the United Kingdom’.

Honouring its promise 1.23 The Government made several attempts to honour its promise to the ECtHR. They all came as part of its somewhat protracted review of mental health law, which included a White Paper, two draft Mental Health Bills and a substantive Bill. For a long time, the Government contemplated the repeal of MHA 1983, but ultimately, it settled for simply amending the Act in several key respects.36

34 35 36

JT v. United Kingdom, Application No 26494/95, Judgment of 30 March 2000; (2000) 1 FLR 909. FC v. United Kingdom, Application No 37344/97, Judgment of 7 September 1999. See, for example, Hewitt 2002a, 2002b, 2002c, 2003, 2004a and 2004b; Hewitt, Memorandum [DMH 21] in Joint Committee on the Draft Mental Health Bill, Draft Mental Health Bill, Volume II, HL Paper 79–II, HC 95–II, Ev 279; Hewitt 2005a, 2005b and 2006.

THE RECENT HISTORY OF THE NEAREST RELATIVE

19

A declaration of incompatibility 1.24 By the time of the second draft Mental Health Bill, some five years had elapsed since the Government made its promise to the ECtHR in the FC case. The failure to honour that promise in the intervening years led to considerable frustration within the domestic courts and, in the case of R (M) v. Secretary of State for Health, to the High Court making a formal declaration that MHA 1983, section 26 was incompatible with Article 8 of the ECHR.37 When, in February 2007, this case reached the ECtHR, the Government said it still proposed to honour its promise, and it pointed to the changes that would be made by the substantive Mental Health Bill of 2006.38

Practicability 1.25 The Government’s failure to reconcile the nearest relative provisions in MHA 1983 with the ECHR led some practitioners to adopt makeshift solutions of their own. One such was revealed in the case of R (E) v. Bristol City Council,39 which came before the High Court in January 2005. 1.26 At the heart of this case was the requirement, contained in section 11(4) of MHA 1983, that before making an application for a patient’s detention under section 3, an Approved Social Worker (ASW) (the forerunner of the Approved Mental Health Professional (AMHP)) should consult his or her nearest relative. No such consultation need take place, however, if it is ‘not reasonably practicable’. R (E) v. Bristol City Council E had a very difficult relationship with her sister, S, who, under section 26(1) of MHA 1983, was her nearest relative. E feared that, in future, she might be considered for detention under section 3 of the Act, and the relevant local authority said that if that were so, its ASW would have to consult S. E said that this prospect caused her considerable distress, a fact acknowledged by her Responsible Medical Officer (RMO), and agreed for the purposes of the proceedings.When the matter came to court,the judge went as far as to say:'[I]t is not in the best interests of [E] for [S] to be involved in any way with [E] and, in particular, with the assessment and/or treatment of [E]’s mental health problems.'40 E applied for judicial review to prevent the ASW consulting S. Referring to section 11(4) of MHA 1983, E said that in the circumstances of her case, it was 37 38 39 40

R (M) v. Secretary of State for Health [2003] EWHC 1094 (Admin). M v. United Kingdom, Application No 30357/03, Decision of 13 February 2007. R (E) v. Bristol City Council [2005] EWHC 74 (Admin). See para. 1.26. Ibid., at [9].

20

THE NEAREST RELATIVE HANDBOOK

‘not reasonably practicable’ for an ASW to consult S, and that therefore it would not be necessary for such consultation to take place.

Judgment The High Court found for E. Under Article 8 of the ECHR, she would have a right to respect for, amongst other things, her private life. The court said that now that the Human Rights Act 1998 was in force, it was incumbent on all public authorities to act compatibly with the ECHR. In particular, the court (which was itself a public authority) had a duty to interpret legislation in a way that was compatible with the ECHR.41 However, the court added that there were also domestic authorities that allowed it to interpret ‘not reasonably practicable’ in a way that would be favourable to E.The court’s reasoning was as follows: · ‘It is important not to equate “practicable” with “possible”. When considering whether a course of action is possible, it is not permissible to consider the results of that course of action; if it can be done, it must be done. But when considering whether a course of action is practicable it may be permissible to look at the end result. Like so many other words in the English language “practicable” will take considerable colour from the context in which it is used.’42 · ‘The word “practicable” is an ordinary English word of great flexibility: it takes its meaning from its context. But, whenever used, it is a call for the exercise of common sense, a warning that sound judgment will be impossible without compromise. Sometimes the context contemplates a situation rarely to be achieved, though much to be desired: the word then indicates one must be satisfied with less than perfection […] Sometimes, […] what the context requires may have been possible, but may not for some reason have been “practicable”. Whatever its context, the quality of the word is that there are circumstances in which we must be content with less than 100 per cent: and it calls for judgment to determine how much less.’43 · ‘Practicability itself is not a black and white concept and lends itself to questions of judgment, fact and degree.’44 The judge noted that the then current Code of Practice suggested something rather different. In fact, it stated: ‘Practicability refers to the availability of the

41 42 43 44

HRA 1998, s 3(1). Owen and another v. Crown House Engineering Limited [1973] 3 All ER 618, per Griffiths J at p.621. Dedman v. British Building and Engineering Appliances Ltd [1974] 1 WLR 171, per Scarman LJ at p.169. See also Re P (Adoption) (Natural Father’s Rights) [1994] 1 FLR 771, per Ewbank J at pp.772 and 773. R (C) v. The London Maudsley NHS Trust and the Mental Health Review Tribunal [2003] EWHC 3467 (Admin), per Nicholas Blake QC at [11].

THE RECENT HISTORY OF THE NEAREST RELATIVE

21

nearest relative and not to the appropriateness of informing or consulting the person concerned.’45 To this, the judge said:‘[…] in my judgment, the passage I have quoted from above is wrong. The author, with respect, has fallen into the trap of confusing the different concepts of “possibility” and “practicability”. The words in paragraph 2.16 are contrary to the authorities I have referred to and, with respect, to common sense. Is the approved social worker really bound to inform/consult the nearest relative of a patient who may intensely dislike a patient and/or who would, or might, not act in the patient’s best interest? The answer,in my judgment,is of course not and particularly so where the patient,as here, is competent and has strongly expressed her wish that her nearest relative, [S], is not informed or consulted.’46 Did this mean that the ASW would be relieved of his or her MHA 1983, section 11 duty? The judge said: ‘That, in my judgment, requires a balancing act to be performed […]. On the one hand, Parliament clearly intended for the nearest relative of a patient to have the opportunity of playing a significant role in the protection of the patient or otherwise acting in his or her interests. […] It is not lightly to be removed by invoking impracticability.On the other hand,to confine practicability, as does the Code of Practice, is far too restrictive and could lead and, in my judgment, would lead to positive injustice in the breach of [E]’s rights under Article 8. There is no reason to believe that an approved social worker will act otherwise than in the claimant’s best interests.[E], who is competent, does not wish for [S] to carry out the functions of the relative under the Mental Health Act.’47

1.27 The approach taken by the judge in this case had earlier found favour with Richard Jones.48 It had, however, been opposed by the Mental Health Act Commission, which suggested that it invests too much in the subjective views of practitioners.49 1.28 The offending passage, paragraph 2.16, was removed from the Code of Practice after this case. Nothing resembling it appears in the new Code of Practice.50 1.29 When required by section 11(4) of MHA 1983 to consult a nearest relative, an Approved Mental Health Professional (AMHP) should apply this case cautiously and only after careful deliberation. It has no general application. There will, mercifully, be few cases in which the potential consequences of consulting a nearest

45 46 47 48 49 50

Department of Health and Welsh Office 1999, para. 2.16. R (E) v. Bristol City Council [2005] EWHC 74 (Admin), at [28]. Ibid., at [29]. See, for example, Jones 2004, paras. 1–123 and 1–124. Mental Health Act Commission 2001, paras. 2.53–2.56. Department of Health 2008, Mental Health Act 1983: Code of Practice [‘Code of Practice’].

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THE NEAREST RELATIVE HANDBOOK

relative will be as grave for the patient as they were said to be in E.51 It is only where the facts are comparable that the judgment in that case will be relevant and the duty to consult might be waived. 1.30 It should also be borne in mind that the decision in E applies to a very restricted range of activity. Although, in an appropriate case, it might excuse an AMHP from the duty of consultation – and the statutory hospital managers from their duty to provide certain information52 – it cannot be used to deprive a nearest relative of any of his or her other rights under MHA 1983. That is so, no matter how errant the nearest relative might have been (or be said to have been). The case of E does not, therefore, provide a comprehensive solution to the problems identified by the ECtHR – and acknowledged by the UK Government – in the cases of JT and FC.

Same-sex cohabitees 1.31 There was also legal challenge concerning the way the nearest relative provisions dealt with same-sex relationships; or rather, the fact that those provisions did not deal explicitly with such relationships. 1.32 For a long time, the same-sex partner of a detained patient enjoyed fairly restricted rights. The main problem lay with section 26 of MHA 1983, which defined the phrase ‘husband or wife’. Section 26(1) of the Act gives principal nearest relative rights to the person whom it describes, while section 26(6) allows a cohabitee to qualify as the husband or wife of the patient provided the two have lived together for at least six months. Until it was amended by the Mental Health Act 2007, however, this provision only applied explicitly to heterosexual cohabitees. 1.33 In Harrogate BC v. Simpson,53 Ewbank J said: ‘I agree that the expression “living together as husband and wife” […] is not apt to include a homosexual relationship. The essential characteristic of living together as husband and wife, in my judgment, is that there should be a man and a woman.’ As recently as 1999, this analysis was approved by the House of Lords.54 1.34 A challenge finally came in the case of R (SSG) v. Liverpool City Council and the Secretary of State for Health,55 which was heard by the High Court in October 2002.

51 52 53 54 55

See the first paragraph of the box above. Code of Practice, paras. 2.32 and 2.33. See also paras. 5.99–5.147. (1985) 17 HLR 205, CA. Fitzpatrick v. Sterling Housing Association Limited [1999] 4 All ER 705. R (SSG) v. Liverpool City Council and the Secretary of State for Health, CO/1220/2002, Maurice Kay J.

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23

R (SSG) v. Liverpool City Council and the Secretary of State for Health This case concerned SSG, a woman who was a lesbian, had paranoid schizophrenia and depression, and wanted her female partner, with whom she had been living since 1999, to be recognised as her nearest relative. Having at one time complied with this wish,the local authority decided no longer to respect it and, instead, purported to recognise the patient’s mother as her nearest relative. The patient, who was not on good terms with her mother, sought judicial review,claiming a breach of ECHR,Article 8.The local authority had some sympathy with this argument but felt that the current law did not permit it to respect her wish. With the assistance of the Department of Health, the matter was concluded upon agreed terms, which were approved by Maurice Kay J.

Judgment The terms of the agreed order included the following: ‘It is declared that the homosexual partner of a patient within the meaning of section 145 of the Mental Health Act 1983 can be treated as a “relative” within section 26(1) of the Mental Health Act 1983. Having regard to the specific statutory context and applying section 3 of the Human Rights Act 1998, the homosexual partner can be treated as falling within the phrase “living with the patient as the patient’s husband or wife as the case may be” in section 26(6) and accordingly as a relative within section 26(1) MHA 1983.’

1.35 In its own guidance, the Department of Health said that the consent order produced in this case ‘can and should be followed by decision makers: local authorities can and should regard same sex partners as within the extended definition of husband and wife under section 26’.56 1.36 The result of the SSG case, therefore, was that, provided the two had lived together for six months, one homosexual cohabitee would qualify as the ‘husband or wife’ of the other under section 26(6) of MHA 1983 and, therefore, as his or her nearest relative under section 26(1). In this important respect, MHA 1983 gave homosexual patients rough parity with heterosexual patients – albeit the less well-favoured of them.57 Eventually, however, some same-sex couples would gain greater rights.

56

57

This passage appeared in guidance that has now been removed from the Department of Health website. A brief note on the case, and a copy of the consent order, may now be found at www.dh.gov.uk/en/Healthcare/NationalServiceFrameworks/Mentalhealth/DH_4077674 See paras. 2.38–2.41.

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Amendments 1.37 The Mental Health Bill 2006 was introduced into the House of Lords in November 2006.58 On 19 July 2007, after a turbulent passage through both Houses of Parliament, the Bill received the Royal Assent and became the Mental Health Act 2007 (MHA 2007).59 1.38 The new Act made a number of changes that affected the way the nearest relative would perform his or her role. Those changes included: ·

the introduction of a single, simplified definition of ‘mental disorder’ and the abolition of the four separate classes of which it had previously been composed. This meant, first, that there was no longer any possibility of – or need for – a patient to be reclassified as suffering from a different form of mental disorder and, second, that the nearest relative lost the rights he or she (among others) had previously enjoyed in that regard,60 and

·

the replacement of Supervised Discharge, in respect of which the nearest relative had a number of rights,61 with Supervised Community Treatment,62 in respect of which he or she has almost none.

1.39 As far as concerns the nearest relative, MHA 2007 made a number of changes.63 The most significant of them are as follows:

58 59 60 61 62 63 64 65 66 67

·

In the case of parties to a civil partnership under the terms of the Civil Partnership Act 2004, each will be the nearest relative of the other regardless of the length of their civil partnership.64

·

A patient him- or herself may seek the appointment of an acting nearest relative.65

·

A patient may apply to discharge, or to vary, an order appointing an acting nearest relative.66

·

There is a further ground for displacement: the nearest relative of the patient is ‘not a suitable person to act as such’.67

Department of Health and Home Office, Mental Health Bill, November 2006, HL Bill 1 54/2. Mental Health Act 2007, c 12. See, for example, paras. 7.41 et seq. of the first edition of this book. See Chapter 6 of the first edition of this book. MHA 1983, s 17A–G, as inserted by MHA 2007, ss 32–36 and Schedules 3 and 4. See, for example, Hewitt 2007a and 2007b. MHA 1983, s 26(1), as inserted by MHA 2007, s 26(2). See paras. 2.24–2.29. MHA 1983, s 29(2)(za), as inserted by MHA 2007, s 23(4). See para. 4.28. MHA 1983, s 30(1)(a), as amended by MHA 2007, s 24(2)(a). See paras. 4.93 and 4.97. MHA 1983, s 29(3)(e), as inserted by MHA 2007, s 23(5)(b). See paras. 4.53–4.56. See also Hansard, 17 January 2007, cols 666, 667, 670 and 671; Joint Committee on Human Rights, Session 2006–07, Fourth

THE RECENT HISTORY OF THE NEAREST RELATIVE

25

·

A nearest relative displaced under this ground may apply to discharge, or to vary, the discharge order, but only if he or she obtains leave of the court.68

·

The court may appoint as acting nearest relative, not only the person who made or was named in the relevant application, but, in the alternative, anyone else who, in its opinion, is a suitable person to act as such.69

·

The court may appoint an acting nearest relative for an indefinite period70 if it makes an order (a) because the patient has no nearest relative, or because it is not reasonably practicable to ascertain whether he or she has a nearest relative or who the nearest relative is71 or (b) because the nearest relative is incapable of acting as such because of illness72 or (c) the nearest relative is unsuitable.73

·

A displaced nearest relative may only apply to a Mental Health Review Tribunal (MHRT) if the reason for displacement was not that he or she is unsuitable, or too ill, to act as nearest relative.74

Comment 1.40 The changes made by MHA 2007 gave civil partners the same nearest relative rights as married people.75 They did nothing, however, to change the position of same-sex cohabitees who eschew a formal partnership. The rights of such people will remain the same as those of heterosexual partners who choose to cohabit, and not to marry.76 1.41 The new right that patients will enjoy, to apply to displace their nearest relative, might prove popular, and the Government will hope that it resolves the difficulties – and cures the ECHR incompatibilities – revealed by the cases of FC and JT. It is notable, however, that if a patient wishes to avail him- or herself of this right, he or she will have to take the initiative, and also, possibly, to bear the

68 69 70 71 72 73 74 75 76

report, Legislative Scrutiny: Mental Health Bill, HL Paper 40 HC 288, 4 February 2007, paras. 30–37 and Appendix 3, paras. 23–25. MHA 1983, s 30(1A), as inserted by MHA 2007, s 24(3). MHA 1983, s 29(1A)(b), as inserted by MHA 2007, s 23(3). See para. 4.78. MHA 1983, s 30(4B), as inserted by MHA 2007, s 24(7). MHA 1983, s 29(3)(a). See paras. 4.36 and 4.37. MHA 1983, s 29(3)(b). See paras. 4.38–4.40. MHA 1983, s 29(3)(e). See paras. 4.53–4.56. MHA 1983, s 66(1)(h), as amended by MHA 2007, s 25. It would seem that this was not the Government’s original intention. See Jones 2006, para. 1–414. See para. 2.39.

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cost of doing so. This position may be contrasted with the one that, it seems, will obtain in the case of some so-called Bournewood patients.77 1.42 The possibility, which was also introduced by the 2007 Act, that a nearest relative might be removed simply because he or she is ‘unsuitable’ for the role has caused some concern, not least because it seems that removal will be possible even where there is no evidence that a patient has been abused.78 Concern has also been expressed that the new ground will make it possible for professionals to secure the displacement of a nearest relative who has simply proved less biddable than they hoped. The Joint Committee on Human Rights (JCHR) said: [I]f left undefined, [the concept of suitability] is […] potentially too broad in enabling a nearest relative who is in conflict with mental health professionals to be removed on the initiative of those professionals.79

1.43 Paradoxically, perhaps, the JCHR also found that the suitability requirement might not protect the patient in the way the minister envisaged. It said: [T]he concept [of suitability] is too narrow to enable a patient to displace a nearest relative with whom they emphatically do not get along, unless there is some undercurrent of abuse.80

1.44 Finally, and more generally, the Parliamentary debate that produced MHA 2007 also revealed rather more about what the nearest relative is for (or, more accurately, what the Government believed the nearest relative to be for). He or she is an independent actor with a mind of his or her own. According to the then Health Minister, Lord Hunt: [T]he powers of nearest relatives mean that they are not just patient representatives, although most nearest relatives very effectively represent their patient relatives. […] [I]n order to exercise his power, the nearest relative must be free to act in a way that represents his understanding of the best interests of the patient. Sometimes that might mean that the nearest relative will use, or not use, his powers in ways that do not concur with the wishes of the patient. Of course, many people chosen by the patient would feel duty-bound to act in the way that the patient wished, but the powers of the nearest relative have not been designed to work in that way. […] Given the role, the nearest relative needs to be able to

77 78 79 80

Mental Capacity Act 2005, Schedule A1, cl 143(2)(a); The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008, SI 2008 No 1315, reg 5. Rt Hon Rosie Winterton MP, Hansard, 18 June 2007, col 1099. See para. 4.55. Joint Committee on Human Rights, 2007, Legislative Scrutiny: Mental Health Bill, Fourth Report of Session 2006–07, HL Paper 40, HC 288, 4 February, para. 37. See also Hewitt 2007c. Ibid.

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27

act, as I said, in a way that represents their understanding of the patient’s best interests and not simply to carry out the patient’s wishes.81

81

Lord Hunt of King’s Heath, Hansard, 17 January 2007, cols 670 and 671. See also Bartlett and Sandland 2007, pp.165 et seq.

CHAPTER 2

The Nearest Relative of an Adult This chapter explains how, in the case of an adult, his or her nearest relative is to be identified.

Introduction 2.1 A person will have a ‘nearest relative’ if he or she is, or is about to be: ·

liable to be detained in hospital under the Mental Health Act 1983 (MHA 1983)1

·

a community patient or

·

subject to guardianship.

2.2 The following will not have a nearest relative:

1 2

3

·

a ‘restricted patient’ (in other words, one detained under MHA 1983 in the course of criminal proceedings and subject to a restriction order made under section 41, even if he or she is on conditional discharge)2

·

a patient who has been remanded to hospital under section 35 or section 36 of MHA 1983

·

a person who is subject to an interim hospital order made under section 38 of MHA 19833 or

·

a patient who is informal or in the community (unless he or she is to be made subject to MHA 1983).

But see para. 2.2. R(H) v. Mental Health Review Tribunal, CO/2404/2000, Longmore J, 7 December 2000. See also Department of Health 2008, Reference Guide to the Mental Health Act 1983 [‘Reference Guide’], paras. 33.5 and 33.6. Department of Health, 2008, Mental Health Act 1983: Code of Practice [‘Code of Practice’], para. 8.3.

29

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2.3 The nearest relative of a patient is determined according to the criteria set out in section 26 of MHA 1983.4 Where the patient is a child, different criteria apply if he or she (a) is in care, (b) has a guardian or (c) is the subject of a residence order.5 Otherwise, the nearest relative of a child patient is ascertained in the same way as the nearest relative of an adult patient. 2.4 A patient can neither choose his or her nearest relative nor prevent the appointment of someone he or she considers unsuitable for the role. For this reason, section 26 of MHA 1983 became somewhat controversial.6 Where the person appointed is unsuitable, however, a patient, or others, may apply to remove him or her as nearest relative.7 2.5 It is possible that after section 26 of MHA 1983 has been applied, a patient will be found not to have a nearest relative. In such circumstances, an Approved Mental Health Professional (AMHP) who is assessing the patient should advise him or her that he or she may apply to the county court for the appointment of a person to act as nearest relative.8 2.6 Next-of-kin. A person will have no special standing under MHA 1983 just because he or she is a patient’s ‘next-of-kin’. That person might also be the patient’s nearest relative, but only if he or she qualifies for the role according to the criteria discussed below.9 2.7 In most circumstances, it will be the responsibility of the relevant AMHP to identify the nearest relative. That will be so, for example, where a patient is to be admitted to hospital under MHA 1983. Where, however, a nearest relative has a right to information about the patient’s detention, the responsibility of ensuring that he or she receives it may fall upon the AMHP or ‘the managers’ of the hospital concerned.10 2.8 The task of ascertaining a patient’s nearest relative might be an awkward one, but it need not be particularly onerous. In most cases, the person who must be involved in the statutory process is not the one whom section 26 determines to be the nearest relative; it is the person who appears to be that. The key question is not whether the decision-maker’s view was objectively accurate, but simply whether it was reasonable.11 4 5 6 7 8 9 10 11

See Appendix 1. See Chapter 3. See paras. 1.15–1.22. See paras. 4.53–4.56. Code of Practice, para. 8.5. Ibid., para. 8.2. See paras. 5.99–5.147. See, for example, R (WC) v. South London and Maudsley NHS Trust and another [2001] EWHC 1025 (Admin) ; R (Robinson) v. The Hospital Managers of the Park Royal Hospital, Queen’s Bench Division (Stanley Burnton J), 26 November 2007.

THE NEAREST RELATIVE OF AN ADULT

31

2.9 The following points should be borne in mind:

12 13 14 15 16 17

·

There can be only one nearest relative for a patient (although one person may be the nearest relative to more than one patient).

·

It is possible that a person will not be the nearest relative of the person that is his or her nearest relative.12

·

Once a nearest relative has been identified for a patient, no one else may perform the role unless the nearest relative divests him- or herself – or is divested of – the role.

·

A person determined as the nearest relative of a patient will not, however, be obliged to perform that role: provided the relevant formalities are observed, he or she may assign it to another person.13 A nearest relative who is unwilling either to perform the role or to assign it to someone else may not be compelled to do so. It might be argued, however, that any consultation with such a person is not reasonably practicable and therefore should not take place;14 or that the person’s unwillingness to engage with the MHA 1983 process makes it unnecessary to provide the information to which he or she would otherwise be entitled.15

·

A person may be the nearest relative of a MHA 1983 patient, even though that person is suffering from mental disorder himself or herself. Provided he or she is capable of acting as such, his or her nearest relative status will not be affected.

·

A person might be incapable of acting as nearest relative because of his or her own mental disorder, or of any other illness. That is not a reason to disregard him or her, but it might be a reason (a) to seek his or her removal as nearest relative under section 29 of MHA 198316 or (b) to argue that it would be ‘impracticable’ to consult him or her.17

·

The identity of a patient’s nearest relative might change over time (for example, if the patient marries or the nearest relative dies).

See para. 2.91. See paras. 4.2–4.24. See paras. 5.59–5.70. See paras. 5.99–5.147. See paras. 4.38–4.40. At one time, this was the course advocated by the Department of Health where two detained patients were married to each other. (See Gostin 1986, para. 8.02.1.) See paras. 5.59–5.70.

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General rules 2.10 Section 26 of MHA 1983 provides a list, setting out the relatives eligible to be the nearest relative of a patient and placing them in discrete categories. It also sets out how (a) one category of relative will take precedence over another and (b) one relative might gain precedence over others in the same category. 2.11 It is, of course, the case that while the nearest relative will have to be a ‘relative’ according to the section 26 list, only one such relative can have the role at a given moment. Nevertheless, other section 26 relatives might have a part to play in the care of someone with a mental disorder. An AMHP must, for example, have regard to the wishes of such relatives when deciding whether it is necessary or proper for an admission application or a guardianship application to be made by him or her.18 2.12 Most of the list appears in section 26(1), but account must also be taken of important provisions in section 26(4) and (7) of MHA 1983.19 As far as a patient’s nearest relative is concerned, the order of priority established by the full list might be expressed as follows: 1. any relative (see (2)–(9) below) (a) with whom the patient ordinarily 20 21 resides or (b) who provides care for the patient or 2. a husband or a wife, or a civil partner (or, in some cases, a cohabitee)22 3. a son or a daughter

23 24

4. a father or a mother

25

5. a brother or a sister 6. a grandparent 7. a grandchild 8. an uncle or an aunt

9. a nephew or a niece26 or

18 19 20 21 22 23 24 25 26

MHA 1983, s 13(1A)(b). See Appendix 1. After paragraph 33.63 (at pages 278 and 279), the Reference Guide sets out 'Seven steps to identify the nearest relative'. See paras. 2.73–2.80. MHA 1983, s 26(4). See paras. 2.81–2.90. See paras. 2.18–2.23, 2.24–2.29 and 2.30–2.41. See paras. 2.42–2.52. Ibid. See paras. 2.53 and 2.54. MHA 1983, s 26(1).

THE NEAREST RELATIVE OF AN ADULT

33

10. anyone else with whom the patient has ordinarily resided for at least 27 five years. 2.13 In broad terms, under section 26(1) and (3) of MHA 1983, anyone in a superior category will enjoy precedence over anyone in an inferior category. That means, for example, that: ·

a spouse or civil partner will be the nearest relative in preference to another of the patient’s relatives (unless the other relative falls within category 1 above)

·

a parent will take precedence over everyone but a child, a spouse or civil partner, or anyone in category 1, and

·

a daughter will have equivalent status to a son, a mother to a father, and a sister to a brother.

Example 1 Philippa is detained under MHA 1983. She has a brother, Barry, a mother, Martha,and a son,Simon.They are her only living relatives.Ordinarily,Philippa’s son, Simon, would take precedence over Martha and Barry as her nearest relative. Example 2 Philip has two living relatives: an aunt, Agnes, and a grandmother, Gertie. Ordinarily, Gertie would take precedence over Agnes as his nearest relative, but if Philip ‘ordinarily resided’ with Agnes or was ‘cared for’ by her,she would be his nearest relative.

2.14 Where there is more than one person in a single section 26 category – for example, where a patient has two or more siblings – it is the older or oldest of them that will be the nearest relative.28 Example 3 Pauline is unmarried,but has a son,Sid,and a brother,Brian.Her father,Felix,and her grandfather,George,are both still alive.It is Sid who will be Pauline’s nearest relative, because for these purposes a child takes precedence over a patient’s sibling, parent or grandparent.

27 28

MHA 1983, s 26(7). MHA 1983, s 26(3).

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Example 4 If, as well as Sid, Pauline had a second son, Sam, the older of the two would be her nearest relative.

2.15 A person related to a patient in a way not specified in the list will not qualify to be his or her nearest relative under section 26(1) and (3). That is so of any cousins or stepchildren the patient might have: in effect, their entitlement is no greater than that of someone who is in no way related to the patient. Such a person might, however, become the nearest relative if: ·

he or she is appointed to that role by the court29

·

the role is assigned to him or her by the person who is the nearest relative30 or

·

the patient ‘ordinarily resides’ with him or her and has done so for at least five years.31

2.16 Even if he or she would otherwise qualify under section 26, a person cannot be the nearest relative of a patient if: ·

the person is under 18 years of age and neither the spouse or civil partner, nor a parent, of the patient32 or

·

the patient is ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man, but the person is currently not so resident.33

2.17 In either of these cases, the patient’s nearest relative is to be determined as if the under-age or foreign-resident person were dead.34 (In other words, that person will be disregarded and attention will turn to the next person, if any, on the statutory list.) Example 5 Peter is to be detained under MHA 1983. His only relatives are: a cousin, Cecil; an uncle, Umberto; and a sister, Stephanie. Ordinarily, Peter’s sister, Stephanie, would be his nearest relative.She is,however,only 17 years of age. Cecil may be disregarded, because he is not a ‘relative’ of Peter’s for the purposes of section 26. In those circumstances, it is Umberto, as the first adult on the list, who will be Peter’s nearest relative.

29 30 31 32 33 34

MHA 1983, s 29. See paras. 4.25–4.107. The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 [‘Regulations’], reg 24. See paras. 4.2–4.24 and Appendix 2. MHA 1983, s 26(7). See paras. 2.73–2.80. MHA 1983, s 26(5)(c). MHA 1983, s 26(5)(a). See paras. 2.60–2.65.

THE NEAREST RELATIVE OF AN ADULT

35

Example 6 If, rather than being his sister, Stephanie were Peter’s mother, she would qualify as his nearest relative, even if she were under 18. (Parents – and spouses – under 18 years of age are an exception to the general rule.) Example 7 It is discovered that Peter ordinarily resides with Umberto. Therefore, even if she is his mother, Stephanie will be trumped by Umberto as Peter’s nearest relative. The same will not be the case if it is Cecil who ordinarily resides with Peter: Cecil is not a section 26 relative.

Husbands and wives 2.18 When determining a patient’s nearest relative, his or her ‘husband or wife’ will usually enjoy precedence over everyone else, including any siblings, parents or grandparents the patient might have.35 (For these purposes, a cohabitee might qualify as a patient’s husband or wife.)36 2.19 A spouse under 18 years of age may be a patient’s nearest relative.37 2.20 A spouse might, however, be trumped by a section 26 relative with whom the patient ordinarily resides38 or whom he or she is cared for by.39 Example 8 Paloma is married to Hector and will therefore be his nearest relative, even though he also has a brother, Bartolo, a mother, Marisa, and a grandfather, Gaspar. That will be so, even if Paloma is under 18 years of age: she will still take precedence over Gaspar, Marisa and Bartolo. Example 9 Bartolo might take precedence over Paloma if he ordinarily resides with Hector or cares for him. That will only be the case,however,if (a) Paloma,being ordinarily resident with (or caring for) Hector, is younger than Bartolo; or (b) Paloma neither resides with nor cares for Hector.

35 36 37 38 39

MHA 1983, s 26(1) and (3). See paras. 2.30–2.37 and 2.38–2.41. MHA 1983, s 26(5)(c). See paras. 2.73–2.80. See paras. 2.81–2.90.

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2.21 Where the patient is party to a polygamous marriage, the usual rule will apply and it is the older (or oldest) of his or her spouses who will be the nearest relative.40 2.22 A patient’s spouse will not be his or her nearest relative if: ·

the two are permanently separated (whether by agreement or by court order) or

·

one of them has deserted the other and the two remain apart.41

2.23 In order for one spouse to have deserted the other: ·

the parties must live separately (although they might do so in the same house)

·

one of them, being capable, must have formed the intention of deserting the other and must not have been justified in doing so and

·

the other must not have consented to the desertion.

Example 10 Paulo is married to Wendy but having an affair with May. Wendy is ignorant of the affair: she and Paulo live together and are only occasionally apart. Wendy is Paulo’s nearest relative. Example 11 Paulo continues to see May without Wendy’s knowledge. In fact, he stays at her house two nights a week, telling Wendy that he is out of town on business. Wendy remains his nearest relative.He is still married to Wendy and cannot be said either to have separated from her or deserted her. Furthermore, his relationship with May does not yet appear to be such that they can be said to be living together as husband and wife. Example 12 Paulo tells Wendy about his affair with May. At first, little changes, and Wendy therefore remains Paulo’s nearest relative. Before long, however, they begin to sleep in separate bedrooms and, eventually, to occupy different parts of the house. It is unlikely that one of them can be said to have deserted the other, so the key question is whether they are now separated. That will be a question of fact,based on the circumstances of the case.If – as is likely – Paulo is indeed now separated from Wendy, she will no longer be his nearest relative. It is unlikely, however,that May has become Paulo’s nearest relative,because the two are not married and cannot be said to be living together as husband and wife. Paulo has

40 41

MHA 1983, s 26(3). MHA 1983, s 26(5)(b). See Reference Guide, para. 33.16. See also para. 2.23.

THE NEAREST RELATIVE OF AN ADULT

37

a daughter,Demelza,by a previous relationship,and it is likely that she will be his nearest relative.

Example 13 Paulo moves in with May.She might become his nearest relative,but not straight away.

Civil partners 2.24 When determining a patient’s nearest relative, any civil partner he or she might have will usually enjoy precedence over everyone else, including any siblings, parents or grandparents of the patient.42 2.25 In this context, a civil partner is someone who, along with the patient, is party to a civil partnership registered under section 2 of the Civil Partnership Act 2004.43 (It is only two people of the same sex who may enter into a civil partnership.)44 2.26 A civil partner might, however, be trumped by a section 26 relative with whom the patient ordinarily resides45 or whom he or she is cared for by.46 Example 14 Gertrude and Alice are civil partners, but it is Gertrude’s brother, Leo, who cares for her. Although he does not live with Gertrude, the care Leo provides might give him precedence over Alice as Gertrude’s nearest relative, but only if Alice is younger than Leo and neither lives with nor cares for Gertrude.

2.27 A civil partner under 18 years of age may be a patient’s nearest relative.47 (In order for a civil partnership to be registered, both partners must be at least 16 years of age.)48 2.28 A patient’s civil partner will not be his or her nearest relative if:

42 43 44 45 46 47 48 49

·

the two are permanently separated (whether by agreement or by court order) or

·

one of them has deserted the other and the two remain apart.49

MHA 1983, s 26(1) and (3). Civil Partnership Act 2004, c 33. Civil Partnership Act 2004, s 3(1)(a). See paras. 2.73–2.80. See paras. 2.81–2.90. MHA 1983, s 26(5)(c). Civil Partnership Act 2004, s 3(1)(c). MHA 1983, s 26(5)(b).

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2.29 In order for one civil partner to have deserted the other: ·

the two must live separately (although they might do so in the same house)

·

one of them, being capable, must have formed the intention of deserting the other and must not have been justified in doing so and

·

the other must not have consented to the desertion.

Cohabitees Heterosexuals 2.30 Where a man and a woman live together as husband and wife, each is to be regarded as the husband or wife of the other (as the case might be) – and therefore his or her nearest relative – provided their cohabitation has lasted for at least six months.50 Example 15 Primo was married to Wynona, so that, at the time, each was the other’s nearest relative. Ten months ago, however, they split up and Primo moved in with Carlotta. Provided the two live together as husband and wife, and have done so for at least six months, it is Carlotta who will be Primo’s nearest relative. Example 16 If Primo split up with Wynona and moved in with Carlotta, not ten months, but three months ago, neither woman is Primo’s nearest relative: Wynona because, though she is his wife, the two are separated; and Carlotta because she has not yet lived with Primo for six months. If there is no other section 26 relative who can be said to ‘care for’ Primo, it is any child, followed by any parent or sibling (etc.), who will be his nearest relative.

2.31 It seems that in deciding whether two people have cohabited for six months, account should be taken of all periods when they were apart, including any time one or other of the parties has spent detained, whether in prison or in hospital (and even though such absences are compulsory). Whether or not a period apart will bring an end to a couple’s cohabitation will depend upon the nature of the relationship to that point.51

50 51

MHA 1983, s 26(6). R (Robinson) v. The Hospital Managers of the Park Royal Hospital, Queen’s Bench Division (Stanley Burnton J), 26 November 2007. See paras. 2.34 and 2.35.

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2.32 Even though a man and a woman might live together as husband and wife, if one of them is married to someone else, it is the spouse who will be his or her nearest relative unless: ·

the patient is permanently separated from the spouse (whether by agreement or by court order) or

·

one of them has deserted the other and the two remain apart.52

2.33 Whether two people are living together as husband and wife is something that will have to be determined according to the facts of each case. However, the High Court has identified the following questions, which, though they are not comprehensive, will be relevant in all cases. ·

Are the two people living together in the same household?

·

Do they share daily tasks and duties?

·

Is there stability and a degree of permanence in their relationship?

·

Does the way financial matters are handled indicate that they are cohabiting?

·

Do the parties have a sexual relationship with each other?

·

Are there children of the relationship?

·

What is the intention (and the motivation) of the parties?

·

Would a reasonable person of normal perceptions consider that the two people were cohabiting?53

Example 17 Pauline is married to Henry but having an affair with another man, Laurence, without Henry’s knowledge. She stays at Laurence’s house two nights a week, telling Henry that she is out of town on business. It is unlikely that Pauline can be said to have deserted Henry, or that the two are now separated. Pauline is likely, therefore, still to be Henry’s nearest relative (and vice versa). Example 18 Gradually, Pauline comes to spend more time with Laurence and less with Henry,and before long she is at Laurence’s house as much as at the matrimonial home. Pauline’s nearest relative remains Henry as long as the two are still married and cannot be said to have separated, and unless one of them deserts the other.

52 53

MHA 1983, s 26(5)(b). See para. 2.23. Mummery v. Mummery [1942] P 107, per HHJ Tyrer.

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Example 19 The relationship between Pauline and Henry deteriorates still further. Her visits to the matrimonial home become less and less frequent. She has moved her belongings to Laurence’s house and now opens a bank account with him. While no doubt of interest,and although they might in time become significant, these facts are of secondary importance in deciding whether Pauline remains Henry’s nearest relative.The key question is still whether the two are now separated,or whether one can be said to have deserted the other.Unless that is so, Laurence cannot hope to become Pauline’s nearest relative.

2.34 In one case, a man, R, was admitted to hospital under section 3 of MHA 1983, having earlier presented to the A & E Department of a hospital in the hope of obtaining accommodation. It was R’s aunt who was consulted as his nearest relative and she did not raise any objection to his admission. The history, however, was rather more complicated. ·

In January, R re-kindled a relationship with his former partner, M, and midway through the month, he moved most of his belongings into her flat.

·

In mid-February, however, R was sent to prison, where he spent two months.

·

Upon his release from prison, R moved the remainder of his belongings into M’s flat and the couple became engaged.

·

In July, R was briefly admitted to hospital.

·

In September, R had an argument with M’s mother, who had come to stay with her. The police were called and R agreed to move out of the flat temporarily. He spent six days sleeping either in his car or at the homes of friends.

·

It was on the seventh day that R was detained.

·

When R told her of his detention, M immediately cut short a visit she was making to another part of the country and returned to visit him in hospital. It became clear that the couple’s relationship was still subsisting.

·

M considered herself to be R’s nearest relative because she believed they had co-habited for six months. Four days after his admission, she made an order for his discharge from section. The Responsible Medical Officer (RMO) did not bar discharge, because he did not believe M to be R’s nearest relative. He noted that R had been engaged to someone else the previous year; that he was of no fixed

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abode when assessed for his present admission; and that the records indicated that the aunt was his nearest relative. 2.35 In this case, the court heard oral evidence from R, who said that, at the time of his admission to hospital in September, he was concerned that his relationship with M might be over. For this reason, the court found that it had been appropriate to consult R’s aunt as his nearest relative. The fact that R’s relationship with M had in fact survived, and was still subsisting, was irrelevant. It was not as settled and permanent as MHA 1983 envisaged. The clock stopped, the court said, when R left M’s flat in September. At the time of his detention, he was not living with her as if she were his wife.54 2.36 It will be noted that although one member of a cohabiting heterosexual couple might be the other’s nearest relative, he or she will have to surmount at least one obstacle – the six-month rule – that is not placed in way of members of a married couple or civil partners. 2.37 If, at the time his or her nearest relative needs to be determined, one member of a cohabiting heterosexual couple is a hospital in-patient – so that he or she might be said no longer to be living together with the other person – that other person will still be his or her nearest relative, provided the two were living together as husband and wife when the patient was admitted to hospital.55 If a previous cohabitation had come to an end before the patient was admitted to hospital, his or her nearest relative will, of course, be determined by a criterion other than this one. That will be so, whatever the interval between the end of the cohabitation and the hospital admission. Example 20 Psamtic has been in hospital for three months and is now to be detained there. He was brought to hospital from the home he had shared with Nashwa for 30 years. It is Nashwa who will be Psamtic’s nearest relative. Example 21 If Psamtic had ceased to cohabit with Nashwa before he was brought to hospital, she will not be his nearest relative. That is so whether the separation came a year,a month or even a day before Psamtic’s admission.The key question will be whether theirs was a genuine separation.

54 55

R (Robinson) v. The Hospital Managers of the Park Royal Hospital, Queen’s Bench Division (Stanley Burnton J), 26 November 2007. MHA 1983, s 26(6).

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Homosexuals 2.38 Following the SSG case,56 the same rules apply to homosexual cohabitees as to heterosexual cohabitees:57 one is to be regarded as the ‘husband or wife or [perhaps more appropriately] civil partner’ of the other, and so his or her nearest relative, provided: ·

their cohabitation has lasted for at least six months and

·

if either of them is married to, or in a civil partnership with, another person, he or she and the other are permanently separated or one has deserted the other.

2.39 Thus, although many homosexuals have been given parity with some heterosexuals, it is in fact with the least privileged of them: like straight people who merely cohabit, gay people who are not in a civil partnership must satisfy the six-month rule. Example 22 Patrick and Colin are in a homosexual relationship and have lived together for ten months. Patrick is still married to Wendy, but Colin will be his nearest relative (and he Colin’s) provided Patrick is permanently separated from Wendy or one of them has deserted the other. Example 23 If Patrick is not,as a matter of fact,separated from Wendy,or if one of them has not deserted the other, Wendy will be his nearest relative, even though he is now in a relationship with Colin and regardless of the time he and Colin have lived together. Example 24 If Patrick and Colin have lived together,not for ten, but for two months, neither will be the nearest relative of the other.If,as a matter of fact,Patrick is separated from Wendy (or one has deserted the other), neither she nor Colin will be the nearest relative. However, provided he continues to live with Patrick (and provided Patrick and Wendy are not reconciled),Colin will become his nearest relative in another four months’ time.

56 57

R ( SSG) v. Liverpool City Council and the Secretary of State for Health, LS (Interested party), CO/1220/2002. See paras. 1.34–1.36. MHA 1983, s 26(6).

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2.40 Where, in the case of two homosexuals who cohabit, they are civil partners, that fact alone will make one the nearest relative of the other, regardless of the length of their cohabitation.58 Example 25 If, in example 24, Colin and Patrick were to become civil partners, each would be the nearest relative of the other, regardless of the length of their cohabitation (and even if it was less than six months).

2.41 If, when the identity of his or her nearest relative needs to be determined, one member of a cohabiting homosexual couple is a hospital in-patient, then, again, his or her cohabitee will also be his or her nearest relative if the two were living together as civil partners when the patient was admitted to hospital.59

Parents and children 2.42 In general terms, when determining a patient’s nearest relative, any children he or she might have will take precedence over the patient’s parents, siblings and grandparents (etc.).60 2.43 A child might be ‘trumped’ as nearest relative by: ·

a spouse or civil partner of the patient61 or

·

a relative with whom the patient ordinarily resides62 or whom he or she is cared for by.63

2.44 A parent might be ‘trumped’ as nearest relative by:

58 59 60 61 62 63 64 65 66

·

a spouse or civil partner of the patient64

·

a child of the patient or

·

a relative with whom the patient ordinarily resides65 or whom he or she is cared for by.66

See paras. 2.24–2.29. MHA 1983, s 26(6). See paras. 2.38–2.41. MHA 1983, s 26(1) and (3). See paras. 2.18–2.23, 2.24–2.29, 2.30–2.37 and 2.38–2.41. See paras. 2.73–2.80. See paras. 2.81–2.90. See paras. 2.18–2.23, 2.24–2.29, 2.30–2.37 and 2.38–2.41. See paras. 2.73–2.80. See paras. 2.81–2.90.

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2.45 In the case of a child who is under 18 years of age: ·

he or she cannot be his or her parent’s nearest relative but

·

he or she may be the nearest relative of his or her own child.67

Example 26 Pazia has two relatives:a daughter,Devorah,and a nephew,Nahum.Ordinarily,it would be Devorah who would be Pazia’s nearest relative,because in section 26 a patient’s children take precedence over any nephews or nieces.Nahum might, however, become Pazia’s nearest relative if (a) he ordinarily resides with Pazia or cares for her, or (b) Devorah is under 18 years of age. Example 27 If Pazia – and, of course, Devorah – were under 18 years of age that would not prevent Pazia being Devorah’s nearest relative.

Illegitimacy – Mother 2.46 For these purposes, an illegitimate child is to be regarded as the legitimate child of its mother.68 This means, for example, that where a single woman has two sons, one of whom is legitimate and one illegitimate, each son is equally entitled to be considered for the role and it is simply the older of the two who will be the nearest relative.

Illegitimacy – Father 2.47 An illegitimate child might also be regarded as the legitimate child of its father, but only if the father has ‘parental responsibility’ for him or her.69 Where a father does not have parental responsibility for his illegitimate child, he will not be a relative for the purposes of section 26. He might, however, become the child’s nearest relative:

67 68 69 70 71

·

by being appointed to the role by the court70

·

by having the role assigned to him by the person who is the nearest relative71 or

MHA 1983, s 26(5)(c). MHA 1983, s 26(2)(a). MHA 1983, s 26(2)(b). See Reference Guide, para. 33.10. See also paras 2.48 and 2.49. MHA 1983, s 29. See paras. 4.25–4.107. Regulations, reg 24. See paras. 4.2–4.24 and Appendix 2.

THE NEAREST RELATIVE OF AN ADULT ·

45

if the child patient ordinarily resides with him and has done so for at least five years.72

Parental responsibility 2.48 This is governed by the Children Act 1989.73 In broad terms: ·

A mother will have parental responsibility for her child.74

·

A father will have parental responsibility for his child if he was married to the mother when the child was born,75 or if he marries the mother subsequently (in which case the child will be said to be ‘legitimated’).76

·

Where the father is not married to the mother, he might acquire parental responsibility, but only if: (a) he becomes registered as the child’s father (and the birth itself was registered on or after 1 December 2003); (b) he makes a ‘parental responsibility agreement’ with the mother; (c) the court orders that he should have such responsibility;77 or (d) he becomes the child’s guardian, either by order of the court78 or by agreement with the mother or another guardian.79

·

A stepparent might acquire parental responsibility for a child, either (a) by agreement with those who already have such responsibility or (b) by order of the court.80

·

Where, although he is not married to the mother, the father has parental responsibility for a child, he will lose it: (a) if the court makes an order to that effect;81 (b) when the child reaches 18 years of age;82 or (c) if the child is adopted.83

Example 28 Padraig and Shauna never married and are now living apart. They have two children: a son, Sean, who is 16 years of age, and a daughter, Deirdre, who is 10. 72 73 74 75 76 77 78 79 80 81 82 83

MHA 1983, s 26(7). See paras. 2.73–2.80. See Appendix 1. Children Act 1989, s 2(1) and (2). Children Act 1989, s 2(1). Legitimacy Act 1976, s 2. Children Act 1989, s 4(1). Children Act 1989, s 5(1). See paras. 3.12–3.18. Children Act 1989, s 5(3) and (4). See paras. 3.12–3.18. Children Act 1989, s 4A(1). Children Act 1989, s 4A(2) and (3). Children Act 1989, s 91(7) and (8). Adoption Act 1976, s 12(1).

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Sean is to be detained under MHA 1983. Padraig is older than Shauna, but she will be Sean’s nearest relative unless Padraig has parental responsibility for him.

Example 29 Padraig and Shauna resume their cohabitation. Shauna remains Sean’s nearest relative. Example 30 Eventually, and for the first time, Padraig and Shauna get married. At that point, Sean is ‘legitimated’ and Padraig is treated as his father. As Padraig is older than Shauna, he will supplant her as Sean’s nearest relative.

2.49 A father who acquires parental responsibility for his child by virtue of the Children Act 1989 will lose it once the child is no longer covered by that Act; in other words, once he or she attains the age of 18.

Stepchildren 2.50 A step-relationship is not one of those set out in the section 26(1) list. This means that if the stepchild of a patient is to be his or her nearest relative, he or she will have to: ·

qualify as a non-relative (by having ordinarily resided with the patient for at least five years)84

·

be appointed to that role by the court85 or

·

have the role assigned to him or her by the person who is the nearest relative.86

Adopted children 2.51 An adopted child is to be treated as the child of his or her adoptive parent or parents.87 A child will have only two parents at any one time, whether they are his or her natural parents or one or other of them has adopted him or her. An adoptive parent will usually enjoy parental rights to the exclusion of the natural parent whom he or she has replaced.88 Where a patient is the adopted child of both parents, or where he or she has one adoptive parent and one natural parent, the standard rule will apply: as between the two of them, it is simply the older 84 85 86 87 88

See MHA 1983, s 26(7). See paras. 2.55–2.59 and 2.73–2.80. MHA 1983, s 29. See paras. 4.25–4.107. Regulations, reg 24. See paras. 4.2–4.24 and Appendix 2. See also Reference Guide, para. 33.10. Adoption and Children Act 2002, s 46(2). See Reference Guide, para. 33.9. Adoption Act 1976, s 39(1) and (2).

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who will take precedence. Furthermore, where it is necessary to determine the nearest relative of either parent, the adopted child will enjoy the same right to be considered as any natural child enjoys. Example 31 Pablo has two parents: an adoptive father, Federico, and a natural mother, Marcella.Because Federico is the older of the two,it is he who is Pablo’s nearest relative. That would also be so if, like Federico, Marcella, rather than being Pablo‘s natural mother, had adopted him. Example 32 Penelope has a number of children: two sons, Scott and Sheldon, by her first husband, Frank; and two daughters, Daisy and Darlene, by her second husband, Hank. As both Frank and Hank are now dead, and because Penelope has no other relatives, the oldest of her children will be her nearest relative. Example 33 Further enquiries reveal that although Penelope regarded Daisy and Darlene as her own children, their mother was in fact Hank’s first wife. Therefore, as the two girls are merely her stepchildren, neither of them can qualify as Penelope’s nearest relative,and it is to the older of Scott and Sheldon that that role will fall. Example 34 Yet further enquiries reveal that Penelope adopted Daisy and Darlene two years ago.In those circumstances,they fall into the same section 26(1) category as Scott and Sheldon,and,again,the oldest of the four will be Penelope’s nearest relative. Example 35 Scott is the eldest of the four children and would therefore be Penelope’s nearest relative.For the past couple of weeks,however,Darlene has been caring for her. If the nature and degree of that care is sufficient, Darlene will trump Scott as Penelope’s nearest relative. (If she were not Penelope’s adopted daughter and merely her stepdaughter, Darlene could not gain precedence in this way: unless the role was given to her by the court or the rightful nearest relative, she would only acquire it by ordinarily residing with Penelope for at least five years.)

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Children in care (etc.) 2.52 Different considerations apply in the case of children (a) who are in care, (b) for whom a guardian has been appointed or (c) who are the subject of a residence order.89 In broad terms, the nearest relative: ·

of a child in care is the local authority90

·

of a child with a guardian is the guardian91 and

·

of a child who is the subject of a residence order is the person named in that order.92

Half-siblings 2.53 When dealing with half-siblings, MHA 1983 says two things that might at first appear contradictory. First, it says that when applying section 26, ‘any relationship of the half-blood shall be treated as a relationship of the whole blood’.93 Later, however, the Act talks of ‘relatives of the whole blood being preferred to relatives of the same description of the half-blood’.94 2.54 In fact, these provisions can be reconciled and they may be summarised as follows: ·

the half-sibling of a patient will qualify to be his or her nearest relative in the same way as a full sibling but

·

where the patient has both a full sibling and a half-sibling, the former will take precedence over the latter.

Example 36 Peter has two surviving relatives: his grandmother, Gladys, and a half-brother, Henry. In this case, the fact that Henry is not Peter’s full brother is immaterial: he will be entitled to be considered under MHA 1983 in the same way that a full brother would have been.In fact,Henry will be Peter’s nearest relative,because section 26(1) gives a sibling (or half-sibling) precedence over a grandparent. Example 37 If, as well as his half-brother, Peter has a full brother, Simon, it is Simon who will be his nearest relative, because, when a choice must be made between two

89 90 91 92 93 94

See Chapter 3. MHA 1983, s 27. MHA 1983, s 28. Ibid. MHA 1983, s 26(2). MHA 1983, s 26(3).

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relatives in the same class, one of the whole blood is to be preferred to one of the half-blood.

Other relatives 2.55 Where there is a relative who (a) ordinarily resides with the patient95 or (b) cares for him or her,96 that relative will take precedence over everyone else in the section 26(1) list and will therefore be the patient’s nearest relative. That is so, even if the patient also has a spouse or civil partner, for example, or a child, a parent or a sibling.97 In the case of such a resident or caring relative, there is no minimum period of residence or care before he or she might qualify as the nearest relative.98 (It should be borne in mind, however, that a spouse (for example) might also ordinarily reside with, or care for, the patient and so qualify as the patient’s nearest relative in that regard.) 2.56 For these purposes, a person will be a patient’s ‘relative’ if their relationship is one of those set out in the section 26(1) list. This means that a mere cousin or stepchild of the patient will not come within this provision.99 If such a person is to qualify as the patient’s nearest relative, he or she will have to do so as a non-relative (in other words, by having ordinarily resided with the patient for at least five years).100 Alternatively, of course, he or she might have the role of nearest relative assigned to him or her or be appointed to that role by the court.101 2.57 If there is more than one relative who meets either of these conditions, the older or oldest of them will be the nearest relative.102 Example 38 Patricia has a husband, Hubert, and a son, Steve, neither of whom either lives with her or cares for her. For the past six years,in fact, Patricia has resided with her niece, Nadia. It is Nadia who will be her nearest relative and, in the circumstances of this case,it makes no difference that Patricia has a husband and a son. The length of her residence with Nadia is also irrelevant: provided Patricia was ordinarily resident with her, Nadia would be the nearest relative whether it had

95 96 97 98 99 100 101 102

See paras. 2.73–2.80. See paras. 2.81–2.90. MHA 1983, s 26(4). The position is different in the case of non-relatives with whom a patient ordinarily resides or who care for him or her. See para. 2.50. MHA 1983, s 26(7). See paras. 2.73–2.80. See paras. 4.2–4.24 and 4.25–4.107. MHA 1983, s 26(3).

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been a year, a month or even a day. The same would be true if, rather than the two residing together, Nadia had simply provided care to Patricia.

Example 39 If Hubert also ordinarily resided with Patricia,or if he lived elsewhere but cared for her,he and Nadia would have equal precedence as her nearest relative,and it is to the older of them that the role would fall.

2.58 When it becomes necessary for the AMHP to determine a patient’s nearest relative, the patient might be in hospital and therefore no longer residing with any other person (or residing with a whole ward-full of them). In those circumstances, the relative with whom he or she ordinarily resided – or who cared for him or her – immediately before he or she came into hospital will be the nearest relative.103 If, at the time he or she was admitted to hospital, the patient was neither ordinarily residing with nor being cared for by a relative, his or her nearest relative will be determined by criteria other than these. 2.59 Where a person, A, is the nearest relative of his or her relative, Z, because he or she provides care to him or her, Z will not necessarily be A’s own nearest relative. The MHA 1983 does not state that any nearest relative relationship will be symmetrical, and A might well have a section 26 relative who is closer to him or her than Z.104

Relatives living abroad 2.60 Where a person who would otherwise be the nearest relative is ordinarily resident105 outside the United Kingdom, the Channel Islands or the Isle of Man, it is necessary to consider the whereabouts of the patient:

103 104 105 106 107

·

If the patient is ordinarily resident in the UK (etc.), any expatriate relative cannot be his or her nearest relative (and is to be treated for that purpose as if he or she were dead).106

·

If the patient himself or herself is not so resident, a person may qualify as nearest relative even though he or she is ordinarily resident outside the UK (etc.).107

MHA 1983, s 26(4). See para. 2.91. See paras. 2.73–2.80. MHA 1983, s 26(5)(a). See Mental Health Act Commission, Nearest Relatives of Non-UK Residents, 17 July 2006 – www.mhac.org.uk/?Qtnode/40

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2.61 For these purposes, the United Kingdom is Great Britain (which consists of England, Wales and Scotland) and Northern Ireland.108 2.62 A person will not be ordinarily resident in the United Kingdom if his or her presence there is unlawful.109 2.63 The concept of ordinary residence is discussed below.110 It will have to be considered afresh according to the facts of each case. 2.64 It seems that it might take longer for a person to be regarded as ordinarily resident in a country than in a town. In one child-care case, Lord Brandon said, in a slightly different context: A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.111

2.65 A relative who is ordinarily resident outside the UK does not cease to be so by going on holiday, no matter that his or her holiday might be a lengthy one. Example 40 Philippa lives alone. She has two surviving relatives: Reginald, who, like her, lives in Manchester;and Ricardo, who lives in Lisbon. Reginald is Philippa’s uncle, and Ricardo, her brother. Although, as Philippa’s brother, Ricardo would come first on any list drawn up under section 26(1) of MHA 1983,it is Reginald who will be her nearest relative. Ricardo must be disregarded, because, although Philippa lives in the UK, he does not. Example 41 It would still be necessary to disregard Ricardo even if Reginald did not exist. The result of so doing would be that Philippa had no nearest relative. Example 42 If Philippa lived, not in Manchester, but with her brother in Lisbon, it is Ricardo who would be her nearest relative (if Philippa were to come to England and need to be detained under MHA 1983).

108 109 110 111

Interpretation Act 1978, s 5 and Schedule 1. R v. Barnet LBC, ex parte Shah [1983] 2 AC 309, per Lord Scarman at 343G to 344B; R (A) v. West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin), per Mitting J at [22]. See paras. 2.73–2.80. C v. S (A Minor) (Abduction) [1990] 2 FLR 442 at 454, HL.

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Other people 2.66 Where there is someone who is not a patient’s relative according to the section 26(1) list, but who has, nevertheless, ordinarily resided with him or her for at least five years, that person will become the patient’s nearest relative, albeit by a somewhat circuitous route, as follows: ·

The person, A, will qualify as a ‘relative’ of the patient by reason of their ordinary residence together.112 (He or she will, however, rank last on the section 26 list.)113

·

As a ‘relative’ who ordinarily resides with the patient, A will then be afforded precedence over all other relatives.114

·

If, however, there is another relative, B, who ordinarily resides with, or cares for, the patient, he or she will take precedence as nearest relative. That is so, unless B qualified as a relative of the patient in the same way as A. (In such circumstances, it is the older of A and B that will be the nearest relative.)115

2.67 Where a patient is married or in a civil partnership, however, a non-relative who ordinarily resides with him or her will not become the nearest relative unless the patient and his or her spouse or civil partner are permanently separated or one of them has deserted the other.116 Example 43 Preston has only one relative, his brother, Barrington, who will be his nearest relative.For the last three years,however,Preston has lived with Fiona,who has been his friend since they were both children. Even though Barrington ranks higher than her on the section 26 list, Fiona will become Preston’s nearest relative, but only if the two continue to live together for another two years. In the interim, Barrington will remain Preston’s nearest relative. Example 44 If, rather than his friend, Fiona were Preston’s niece, the length of time she had resided with him would be irrelevant;she would already be his nearest relative. Example 45 If Preston were in a civil partnership with Cyril, it is Cyril who would be his nearest relative, regardless of the respective claims of Barrington and Fiona.

112 113 114 115 116

MHA 1983, s 26(7). MHA 1983, s 26(7)(a). MHA 1983, s 26(4). MHA 1983, s 26(3). MHA 1983, s 26(7)(b), read with s 26(5)(b). See para. 2.23.

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2.68 Where someone whose relationship with the patient is not one of those described in section 26(1) and ordinarily resides with him or her but has not yet done so for five years, that person will only become the patient’s nearest relative: ·

by being appointed to that role by the court117 or

·

by having the role assigned to him or her by the person who is the nearest relative.118

2.69 The five-year period will have to have been continuous, and it will remain so where the patient and the person with whom he or she ordinarily resides are temporarily separated (for example, during a holiday). Example 46 If,in example 43 above,Preston were to go abroad for a fortnight without Fiona, that would not break the continuity of their residence together.If,however,the foreign sojourn lasted for six months, and if, rather than a holiday, its purpose was business, it is likely that Preston and Fiona would be said no longer ordinarily to reside together.

2.70 If, at the time his or her nearest relative needs to be determined, a patient is a hospital in-patient and therefore no longer residing with any other person (whether ‘ordinarily’ or otherwise), any non-relative with whom he or she ordinarily resided immediately before he or she came into hospital will be the nearest relative.119 If the patient was not ordinarily residing with anyone, his or her nearest relative would be determined by a criterion other than this one. 2.71 It has been suggested that where a patient lives communally with others – in a religious community, for example, or a care home – it might be that he or she can be said ordinarily to reside with them, so that if there is no one else that qualifies under section 26, the oldest of those others might be his or her nearest relative.120 Although this suggestion might seem outlandish, it is probably correct, if only from a strict, legal perspective. Much will depend upon the nature of the living arrangements and the extent to which they are truly shared. Example 47 Piotr lives with his wife,Waclawa,in a kibbutz in the Peak District. All members of the kibbutz have equal access to its facilities and share tasks equally. If, in Piotr’s case,the oldest member of the kibbutz were to be afforded any place on 117 118 119 120

MHA 1983, s 29. See paras. 4.25–4.107. Regulations, reg 24. See paras. 4.2–4.24 and Appendix 2. MHA 1983, s 26(4). See paras. 2.73–2.80. Jones 2006, para. 1–420.

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the section 26 list, it would be because he or she ordinarily resided with Piotr. While she remained with Piotr, however, Waclawa would always be his nearest relative.

2.72 Where, by virtue of the ordinary residence provisions, a patient acquires a nearest relative who is unwilling – or fears he or she might be unable – adequately to perform the role, the nearest relative might be invited to assign his or her powers to someone else.121 If a nearest relative is incapable of acting as such by reason either of mental disorder or of another illness, an application might be made for an order replacing him or her with someone else.122 The same approach might be adopted where the nearest relative is believed to be unsuitable for the role.123 It might be argued that, pending his or her replacing, it would not be reasonably practicable to consult such a nearest relative about the patient’s admission to hospital or to guardianship under MHA 1983.124

Ordinarily resident 2.73 As has been shown, the notion of ordinary residence is an important one in the context of the nearest relative. In summary:

121 122 123 124 125 126 127

·

A relative who ‘ordinarily resides’ with a patient will probably be his or her nearest relative (as will one who ‘cares for’ the patient).125

·

A person who was not originally a section 26(1) relative will become one, and might also become the nearest relative, where he or she has ordinarily resided with the patient for at least five years. (He or she will not, however, enjoy precedence over a spouse or civil partner of the patient unless those two are permanently separated or one has deserted the other.)126

·

In the case of a person who is not ordinarily resident in the UK, he or she will not be the nearest relative if the patient him- or herself is so resident.127

Regulations, reg 24. See paras. 4.2–4.24 and Appendix 2. MHA 1983, s 29(3). See paras. 4.25–4.107. MHA 1983, s 29(3). See paras. 4.53–4.56. MHA 1983, s 11(4). See paras. 5.59–5.70. MHA 1983, s 26(4). MHA 1983, s 26(7), read with s 26(5)(b). See paras. 2.73–2.80 and 2.23. MHA 1983, s 26(5).

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2.74 Although MHA 1983 does not define ‘ordinarily resides’, a number of cases have examined what this might mean. It is clear, first of all, that there is no hard-and-fast rule, and that each case should be decided on its own merits.128 2.75 The classic definition of ‘ordinarily resident’ was given by Lord Scarman, in the Shah case. He ‘unhesitatingly’ said: [It] refers to a man’s abode in a particular place or country[,] which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether short or long duration.129

2.76 This definition was accepted and applied in the case of WC,130 although the result in that case was that the patient’s nearest relative was found to be his wife, even though he had been residing with his mother immediately before he was admitted to hospital.131 It seems that there need not be a ‘right’ answer in this regard, or at least that, if there is a right answer, the ASW is not bound to find it. In WC, the court said: Under the provisions of section 11(3) the [ASW] is not obliged to resolve this legal issue as to ordinary residence so as to get it right in absolute terms. What matters is who appears to him to be the nearest relative in the context of the rules set out in the relevant provisions of the Mental Health Act.132

2.77 More recently, Lord Slynn has suggested that a person’s ordinary residence is ‘a place where at the relevant time [he or she] in fact resides’.133 Furthermore: So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he [ordinarily] resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm[,] that is where during that period he is normally resident, however much he might prefer some more better or permanent accommodation.134

2.78 In one case, the parties were in dispute as to whether a patient might be said to be ordinarily resident with his parents, whose home he had left after a disagreement, or at his grandmother’s house, where he had sought refuge. The court

128 129 130 131 132 133 134

Mohammed v. Hammersmith and Fulham LBC [2002] UKHL 57, per Lord Slynn at [18]. R v. Barnet LBC, ex parte Shah [1983] 1 All ER 226, HL, at p.235. R (WC) v. South London and Maudsley NHS Trust and another [2001] EWHC 1025 (Admin). See Bartlett and Sandland 2007, p.168. R (WC) v. South London and Maudsley NHS Trust and another [2001] EWHC 1025 (Admin), per Scott Baker J at [12] [emphasis added]. Mohammed v. Hammersmith and Fulham LBC [2002] UKHL 57, at [18]. Ibid.

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refused to see these as the only alternatives, and said that those responsible for determining the patient’s nearest relative should have considered also the possibility that he may not have been ordinarily resident anywhere[,] and [they] should have specifically asked themselves – bearing in mind [the patient’s] itinerant lifestyle, his lack of stability and the condition of his mental health – whether he really had settled down sufficiently at his grandmother’s for her home to be regarded as his place of ordinary residence.135

2.79 It would appear, therefore, that the following propositions are true: ·

The place in which a patient is ordinarily resident is to be determined afresh in every case.

·

There is no hard-and-fast rule.

·

Everything will depend on where, as a question of fact, the patient is living (and eating and sleeping) at a particular time, and whether he or she has voluntarily accepted it as such.

·

This is so even if the patient would prefer to be – or will eventually go – somewhere else.

·

There might be no place in which a patient is ordinarily resident (in which case, his or her nearest relative will be determined otherwise than by this provision).

Example 48 Pascal has two living relatives: his niece, Naomi (who is 35 years of age), and his nephew,Nigel (33).Ordinarily,as the elder of his only relatives,Naomi would be Pascal’s nearest relative.For the last two years,however,Pascal has resided with Nigel, who is therefore his nearest relative. Example 49 Pascal and Nigel have a fierce row,and Pascal leaves the house in a state of great anger and spends the night in a bus shelter. If, having quit Nigel’s house, Pascal intends not to return to it,it is likely that he is no longer ordinarily resident with Nigel, and that Nigel has therefore ceased to be his nearest relative. In such circumstances, Pascal might have no ordinary residence, so that Naomi, being the older of his only two relatives, would be his nearest relative. If Pascal’s intentions vis-à-vis Nigel are less settled,it might be that the latter remains his nearest relative.

135

R v. Liverpool City Council, ex parte F, CO/2744/96, 16 April 1997, per McCullough J.

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Example 50 Pascal spends the next night at the home of his good friend, Fawn. It might be too early to conclude that he is ‘ordinarily’ resident with her.The following day, however,Pascal goes back to Nigel’s house to pick up his possessions,and when he gets back to Fawn’s house he says, ‘I feel this is where I belong’. It is possible that he is now ordinarily resident with Fawn, and that possibility will increase the longer he spends there. As she is not a relative of Pascal’s, however, Fawn will only have a chance of becoming his nearest relative if their arrangement lasts for five years (or if, within that period, they live together as husband and wife for at least six months). In the interim, as Nigel has lost it and Fawn not yet attained it, it seems the role of Pascal’s nearest relative will devolve upon Naomi.

2.80 It should be noted that ordinary residence is not the same as cohabitation, and that the former is potentially more significant than the latter. ·

Where two people are living together as husband and wife or civil partners, then, provided they have done so for at least six months, each will be treated as the husband, wife or civil partner (as appropriate) of the other and so entitled to precedence as his or her nearest relative.136

·

That precedence will be over-reached, however, by any relative with whom the patient ordinarily resides (or who cares for him or her).

·

In fact, this might be so, even though two people are actually husband and wife or civil partners.

Example 51 For the past sixty years, Percival has lived with two women: Wanda, whom he calls ‘my missus’; and his sister, Connie, whom he has taken to describing as ‘my help-meet’. Percival and Wanda share a bedroom, while Connie sleeps alone. For the purposes of MHA 1983,Wanda might be considered Percival’s wife.It is also likely that he ordinarily resides with her,but he might also be held to do the same with Connie. If so, that could have a curious consequence: because both are relatives – Connie as his sister, and Wanda, by virtue of her status as his ‘wife’ – Percival’s nearest relative would be the older of the two. That might be his sister,and not his ‘wife’.The same would be true if Wanda and Percival were married.

136

MHA 1983, s 26(6). See paras. 2.18–2.23, 2.24–2.29, 2.30–2.37 and 2.38–2.41.

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Cared for 2.81 Where a patient is ‘cared for’ by a relative, that relative will take precedence over all other relatives as his or her nearest relative, even if the patient has a spouse or civil partner.137 Example 52 Pedro has three living relatives: a son, Sebastian, whom he does not see from one month to the next; a niece, Nora, who cleans for him once a week; and a cousin, Christopher, who brings him his meals every day. Christopher is older than Nora, but if the only way he might qualify is by virtue of the care he provides, he will not be Pedro’s nearest relative: Christopher is Pedro’s cousin, and their relationship is not one of those described in section 26 of MHA 1983. Nora’s relationship with Pedro is that of uncle and niece, which is described in section 26. Therefore, if she can be said to provide care for Pedro, Nora will be his nearest relative and she will overreach Sebastian.(The same would be true if Pedro had a wife, unless his wife also provided care for Pedro and was older than Nora.)

2.82 Though the relevant provision in MHA 1983 gives precedence to anyone ‘the patient ordinarily resides with or is cared for by’, it is not the case that someone who cares for him or her must do so ‘ordinarily’ (for that word qualifies ‘resides’ and not ‘cared for by’).138 2.83 The words ‘cared for’ are not defined by MHA 1983, but they have been interpreted by the courts. In the case of Re D,139 the Court of Appeal held: ·

they are clear and everyday words

·

when seeking to apply them, an ASW (for which, read AMHP) must act in a pragmatic and common-sense manner, and

·

if a relative is to be considered the nearest relative under this provision, the services he or she provides need not have been provided over a long period, but they must be ‘more than minimal’.

2.84 In Re D, the services provided by the relative were sufficient to make her the nearest relative. She assisted the patient to manage his financial affairs, often paying his expenses out of her own pocket; checked whether he was eating properly and cooked for him when she thought he was not; and cleaned his soiled clothes and bed linen.

137 138 139

MHA 1983, s 26(4). Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848. Ibid.

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2.85 In the case of F, McCullough J said that when seeking to ascertain whether a relative has cared for a patient, [I]t will be necessary to take into account the duration, continuity and quality of the care afforded by the relative under consideration as having assumed the role […] and also the intention of the patient himself.140

2.86 It would appear, therefore, that the following propositions are true. ·

Whether or not a patient is cared for – and if so, by whom – is to be determined afresh in every case.

·

There is no hard-and-fast rule.

·

The words are to be taken in their normal, everyday sense.

·

The services provided by the relative must be more than minimal, but they need not have been provided over a long period.

·

However, the services will have to have about them a quality of continuity.

·

The intention of the patient is likely to be relevant.

Example 53 Gareth is hoping to be acknowledged the nearest relative of his grandfather, Philip. Unfortunately for Gareth, Philip also has a wife, Wilhelmina, and 11 children.Gareth, however,will point to the fact that he collects Philip’s newspaper every morning. That would not be enough were it not for the fact that Gareth also washes, dresses and feeds his grandfather every day and cleans his house on Thursdays. In those circumstances (and provided he is over 18 years of age), it is possible that Gareth will qualify to be Philip’s nearest relative.

2.87 Where the care provided is sufficient to make its provider the nearest relative of the patient, but it is provided by more than one person, it is the older (or oldest) of the carers who will in fact be the nearest relative. 2.88 Special care should be taken to ensure that two (or more) people are not regarded as joint carers where, in fact, one of them provides a disproportionate share of the patient’s care. The fact that the two (or more) proportions are not identical might, however, be irrelevant, unless they differ so greatly that one person might not, in truth, be said to care for his or her relative at all.

140

R v. Liverpool City Council, ex parte F, CO/2744/96, 16 April 1997.

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Example 54 Polly has four children:Catherine,who is 26 years of age;Carl (24);Claudia (22); and Clive (20). Polly’s husband died last year. Ordinarily, therefore, it would be Catherine, as the oldest child, that would be Polly’s nearest relative. However, the children now take it in turns to care for their mother: · Catherine, on Monday · Carl, on Tuesday and Wednesday · Claudia, on Thursday and · Clive, on Friday, Saturday and Sunday. The care provided is the same every day. It is likely that Catherine will remain Polly’s nearest relative. Section 26 gives the role to a person who provides care for a patient; not to the person that provides the most care. Where two or more people come within the same section 26 category – for example, by each providing care to the patient – there is but one way of distinguishing between them:it is the older or oldest person who will be the patient’s nearest relative. Example 55 If the tasks undertaken for Polly by Catherine are minimal when compared with those undertaken by her siblings, it might not be possible to say that she cares for Polly and she might not, therefore, be entitled to the degree of precedence afforded to Carl, Claudia and Clive. In those circumstances, it is the oldest member of this trio – Carl – who would be Polly’s nearest relative (even though Clive seems to be doing more caring than anyone else). Example 56 If, in truth, the care provided for Polly by her children is no more than minimal, her nearest relative will be Catherine – not by virtue of the care she provides (for she provides none), but simply because she is the oldest child.

2.89 Where a patient who is cared for by a relative ordinarily resides with someone else (who might or might not be a relative), either of the two might qualify as nearest relative and it is to the older of them that the role will fall. Example 57 Clarrie is aged 97 and her husband, Henry, is 99. Henry lives in a care home and is unable to care for Clarrie, so she lives with her son, Sid. He, however, works during the day, so the job of caring for Clarrie falls to her daughter – Sid’s sister – Dottie. Either Sid or Dottie might qualify as Clarrie’s nearest relative: Sid, because his mother ordinarily resides with him; and Dottie, because she provides care for her mother.As is usual in these situations,it is the older of the

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two who will take the role. That is Dottie, and the fact that she cares for her mother will entitle her to precedence over Henry, her father, as the nearest relative.

2.90 If the person who cares for a patient is not a relative – as that term is understood in section 26 of MHA 1983 – the care he or she gives will not enable him or her to qualify as the patient’s nearest relative. Example 58 If, in example 57, Dottie were not Clarrie’s daughter, but her stepdaughter, she would not be the nearest relative and that role would fall to Sid. (The same would be so if Dottie were merely the daughter of a friend of Clarrie’s.) That is because, for the purpose of section 26, a stepchild is not the ‘relative’ of a patient, and it is only by being a relative that someone who cares for a patient can become his nearest relative. If, however, the step-relationship were between Sid and Clarrie,Sid would still qualify as her nearest relative,because a non-relative can accede to the position where,rather than merely provide care, he or she ordinarily resides with the patient.

Asymmetrical relationships 2.91 MHA 1983 does not state that where one person is the nearest relative of another, the arrangement will be reciprocal. The following are examples of such asymmetrical relationships. ·

A is the nearest relative of Z, his relative, because he provides care for her. As far as A’s nearest relative is concerned, however, the care he provides for Z is irrelevant. If Z is the first of his relatives according to section 26, she will be his nearest relative; but if another relative ranks higher in the list, Z will be overreached.

·

B is Y’s aunt and also, because Y has no closer relatives, his nearest relative. B, however, has a number of closer relatives, including a son and a daughter. It is the older of them that will be her nearest relative.

CHAPTER 3

The Nearest Relative of Some Minors This chapter sets out the special rules that apply where it is necessary to ascertain the nearest relative of certain minors.

Introduction 3.1 With three exceptions, the rules for determining the nearest relative of a patient that is – or is to be – subject to the Mental Health Act 1983 (MHA 1983) are the same whether the patient is over or under 18 years of age.1 The exceptions relate to certain minors. 3.2 The minors to whom those different rules apply are: ·

children and young persons in care2

·

minors who are subject to guardianship under the Children Act 19893 and

·

minors who are wards of court.4

Children and young persons in care 3.3 Where a child or young person is in care, his or her nearest relative is to be determined according to the provisions of section 27 of MHA 1983. The effect of those provisions is that, in certain circumstances, section 26 – by which the nearest relative would otherwise be determined – will have no application. 3.4 The circumstances in which section 27 of MHA 1983 will apply are where the patient is a child or young person and:

1 2 3 4

See Chapter 2. See paras. 3.3–3.11. See paras. 3.12–3.18. See para. 3.19.

63

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THE NEAREST RELATIVE HANDBOOK ·

he or she is in the care of a local authority by virtue of a care order within the meaning of the Children Act 19895 or

·

the rights and powers of his or her parent are vested in a local authority by virtue of section 16 of the Social Work (Scotland) Act 1968.6

3.5 In either of these circumstances: ·

the nearest relative of the patient will be the relevant local authority unless

·

the patient is married or in a civil partnership, in which case the nearest relative will be his or her husband or wife, or civil partner.

3.6 This provision will apply only in the case of someone who is both a ‘child’ and a ‘patient’ within the meaning of MHA 1983, as described below: ·

A ‘child’ is defined in the Children Act 1989 as a person under the age of 18.7 This means, in effect, that the term ‘a young person’ is redundant: it cannot be meant to signify a person older than a ‘child’ – in other words, over 18 years of age – and this provision cannot be meant to apply to such a person.

·

A patient is ‘a person suffering or appearing to be suffering from mental disorder’.8

3.7 In the Children Act, the definition of ‘care order’ includes an interim care order made under section 38 of that Act.9 3.8 As we have seen,10 the term ‘husband or wife’ has been defined quite broadly:

5 6 7 8 9 10 11 12

·

both by MHA 1983 itself, which says that, in section 26, it includes cohabitees,11 and

·

by the courts, which have accepted that homosexual cohabitees might qualify as the ‘husband or wife’ of each other – and therefore as each other’s nearest relative – on the same basis as heterosexual cohabitees.12

MHA 1983, s 27(a). See Appendix 1. See also Department of Health 2008, Reference Guide to the Mental Health Act 1983 [‘Reference Guide’], paras. 33.21 and 33.22. MHA 1983, s 27(b). See Appendix 1. Children Act 1989, s 105(1). MHA 1983, s 145(1). Children Act 1989, s 31(11). See paras. 2.18–2.23, 2.30–2.37 and 2.38–2.41. MHA 1983, s 26(6). R ( SSG) v. Liverpool City Council and the Secretary of State for Health, LS (Interested party), CO/1220/2002.

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3.9 It is not clear whether – and if so, how far – these expanded definitions apply in the case of children (and young persons) who fall within section 27 of MHA 1983. However, the following points should be noted: ·

In stating that two cohabitees might (eventually) qualify as each other’s nearest relative, section 26 of MHA 1983 states in terms that that is so ‘in this section’. This suggests that the provision is not to apply in other sections of MHA 1983, and not, therefore, in section 27.

·

In finding as it did concerning homosexual cohabitees, the court was simply seeking to achieve parity, not between homosexuals and heterosexuals generally, but between cohabitees of those respective persuasions. It did not feel the need to ensure that mere cohabitees enjoyed the same rights as married partners.

3.10 This suggests: ·

that a local authority’s claim to be the nearest relative of a patient under section 27 of MHA 1983 will not be defeated by a mere cohabitee of the patient (even one who has enjoyed that status for more than six months).

·

that homosexual cohabitees are unlikely to enjoy the same rights under section 27 of MHA 1983 that they enjoy under section 26.

3.11 A child who enters into a civil partnership will have the same right in this regard that an adult has who does the same: he or she will be his or her partner’s nearest relative. (A person may enter into a civil partnership once he or she has attained the age of 16.)13

Minors subject to guardianship 3.12 Where a child or young person is subject to guardianship under the Children Act 1989, his or her nearest relative will be determined according to the provisions of section 28 of MHA 1983. The effect of those provisions is, again, that, in certain circumstances, section 26 will have no application. 3.13 Those circumstances are where the patient is a person under 18 years of age:

13 14 15

·

for whom a guardian has been appointed (under section 5 of the Children Act 1989)14 or

·

in respect of whom there is a residence order (under section 8 of the Children Act 1989).15

Civil Partnership Act 2004, s 3(1). MHA 1983, s 28(1)(a). See Appendix 1. See also Reference Guide, paras. 33.23–33.25. MHA 1983, s 28(1)(b). See Appendix 1.

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3.14 It is only a guardian appointed for a patient under section 5 of the Children Act who will become his or her nearest relative in this way.16 A person appointed the patient’s guardian under MHA 1983 will not qualify as his or her nearest relative under section 28. That person might, however, still qualify as the patient’s nearest relative: ·

by being appointed under the Children Act as well

·

by being named in a residence order or

·

by virtue of section 26 of MHA 1983.17

3.15 In these circumstances, the nearest relative of the child-patient will be (a) the guardian or (b) the person named in the residence order (as appropriate). 3.16 If there is more than one guardian, or if more than one person is named in a residence order, they will share the post of nearest relative and enjoy equal powers. (This position may be contrasted with the one that obtains in cases covered by section 26 of MHA 1983, according to which a patient can have only one nearest relative.) 3.17 A person who would otherwise qualify as the nearest relative of a patient under this provision will not do so if: ·

unlike the patient, he or she is not ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man18

·

he or she is the husband or wife, or the civil partner, of the patient, but is permanently separated from him or her, either by agreement or under an order of a court19

·

he or she has deserted or been deserted by the patient for a period that has not yet come to an end20 or

·

not being the patient’s husband, wife, civil partner or parent, he or she is under 18 years of age.21

3.18 There is no equivalent in section 28 of the provision in section 27 to the effect that the husband, wife or civil partner of a child-patient in care (etc.) will take precedence over the local authority (etc.) as his or her nearest relative.22 Where a minor is subject to guardianship under the Children Act 1989, any spouse or civil partner of his or hers will enjoy no such precedence.

16 17 18 19 20 21 22

MHA 1983, s 7. See paras. 2.10 et seq. MHA 1983, ss 28(2) and 26(5)(a). The notion of ‘ordinary residence’ is discussed in paras. 2.73–2.80. MHA 1983, ss 28(2) and 26(5)(b). See also para. 2.23. Ibid. MHA 1983, ss 28(2) and 26(5)(c). See para. 3.5.

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Minors who are wards of court 3.19 Where a minor is both a ward of court and (a) liable to be detained in hospital under an application for admission or (b) a community patient, his or her nearest relative will need the leave of the court if he or she is to exercise the powers conferred by that role.23

23

MHA 1983, s 33(2).

CHAPTER 4

Ceasing to be the Nearest Relative This chapter considers the circumstances in which a patient’s nearest relative will cease to be such.

Introduction 4.1 A patient’s nearest relative need not remain such forever. There are two circumstances in which a nearest relative might divest him- or herself, or be divested, of the role. They are: ·

where the nearest relative authorises someone else to act on his or her behalf and

·

where an ‘acting’ nearest relative is appointed by the court, effectively displacing the original nearest relative.

Authorising someone else to act on behalf of the nearest relative 4.2 The process by which a nearest relative might divest him- or herself of the role is set out, not in the Mental Health Act 1983 (MHA 1983), but in regulations made under that Act.1

Giving an authorisation 4.3 A nearest relative may authorise someone else to act on his or her behalf.2 According to the old version of the Code of Practice (which has now, of course, been superseded), the nearest relative might wish to give such an authorisation where he or she ‘would find it difficult to undertake the functions defined in the 1 2

The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008, SI 2008 No 1184 [‘Regulations’]. See Appendix 2. Regulations, reg 24(1).

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Act, or is reluctant for any reason to do this’. Furthermore, the old Code suggested that, in an appropriate case, an Approved Social Worker (ASW) (who has now, of course, been superseded by the Approved Mental Health Professional (AMHP)) consider proposing to a nearest relative that he or she delegate his or her functions to another person.3 Example 59 Basheer has a sister, Zubaida, who is a patient within the meaning of the Mental Health Act 1983.Basheer,who has always respected his neighbour,Nathan,asks him to be Zubaida’s nearest relative. Nathan is related neither to Basheer or Zubaida, nor to their elder brother, Daleel. As the elder of Zubaida’s brothers, Daleel would appear to be her nearest relative. Therefore, Basheer’s preference is irrelevant and Nathan would need to be authorised by Daleel if he was to become Zubaida’s nearest relative.

4.4 For any such authorisation to be valid, it must be given in writing4 (and it may be transmitted electronically).5 4.5 If the nearest relative gives such an authorisation, the person to whom it is given will be able to perform various functions of the nearest relative.6 Those functions are: ·

the ones conferred under Part 2 of MHA 1983 (which may relate not just to a Part 2 patient, but also to an unrestricted Part 3 patient),7 and

·

the right, under section 66 of MHA 1983, to apply to a Mental Health Review Tribunal (MHRT) in certain circumstances.8

4.6 The functions that a nearest relative may authorise someone else to perform do not include those conferred under section 69 of MHA 1983. An authorisation given by a nearest relative will not, therefore, enable someone else to make an application to a MHRT in respect of an unrestricted Part 3 patient who is either liable to be detained in hospital or subject to guardianship.9 4.7 It is the person to whom the authorisation is given who will be responsible for the performance of the relevant nearest relative functions, and, by giving the 3 4 5 6 7 8 9

Department of Health and Welsh Office 1999, para. 2.17. Regulations, reg 24(2). A precedent is set out in Appendix 3. Ibid., reg 24(8). Ibid., reg 24(3). Ibid., reg 24(3)(a). See, more generally, Chapters 5 and 6. Ibid., reg 24(3)(b). See Chapter 6. See paras. 6.38 and 6.39. See also Department of Health 2008, Reference Guide to the Mental Health Act 1983 [‘Reference Guide’], para. 33.27.

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authorisation, the original nearest relative will divest him- or herself of responsibility in that regard. 4.8 An authorisation may be given by a nearest relative at any time, whether or not the patient to whom it relates is, or is to be, detained or made subject to guardianship under MHA 1983.10 4.9 The nearest relative need not consult the patient before authorising someone else to perform his or her functions. Even if the patient is consulted by the nearest relative, his or her view on the subject will carry no weight and may be disregarded. 4.10 There is nothing in MHA 1983 to require the nearest relative to obtain the consent of the person whom he or she authorises to perform his or her functions. Nevertheless, the system seems to assume that the person so authorised is willing to perform the functions of the nearest relative. 4.11 The old Memorandum said explicitly that the person authorised to perform the functions of nearest relative need not be related to the patient.11 4.12 The new regulations provide, however, that there are some people who may not be authorised to perform the functions of the nearest relative.12 They are:

10 11 12 13 14 15 16 17 18 19

·

the patient him- or herself 13

·

anyone deemed not to be the nearest relative by virtue of section 26(5) of MHA 198314 and

·

a person who has been, and remains, displaced as nearest relative on the ground that he or she:15 (a) is incapable of acting as nearest relative by reason of mental disorder or other illness;16 (b) has unreasonably objected to the making of an application for admission for treatment or a guardianship application in respect of the patient;17 (c) has exercised, or is likely to exercise, without due regard to the welfare of the patient or the interests of the public his or her power to discharge the patient from guardianship;18 or (d) is otherwise not a suitable person to act as nearest relative.19

Reference Guide, para. 33.30. Ibid. Regulations, reg 24(1). See also Reference Guide, para. 33.28. Ibid., reg 24(1)(a). Ibid., reg 24(1)(b). See para. 4.13 and Appendix 1. Ibid., reg 24(1)(c). MHA 1983, s 29(3)(b). See paras. 4.38–4.40. MHA 1983, s 29(3)(c). See paras. 4.41–4.47. MHA 1983, s 29(3)(d). See paras. 4.48–4.52. MHA 1983, s 29(3)(e). See paras. 4.53–4.56.

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4.13 The people whom section 26(5) deems not to be the nearest relative – who may not, therefore, be authorised to perform those functions – are: ·

someone not ‘ordinarily resident’ in the United Kingdom, the Channel Islands or the Isle of Man, where the patient is so resident20

·

a husband, wife or civil partner of the patient, where the two are permanently separated (either by agreement or court order) or one has deserted the other,21 or

·

someone under 18 years of age who is neither a parent nor a spouse or civil partner of the patient.22

Example 60 Norman is the nearest relative of his sister, Pamela, who, like him, lives in Norwich. Norman has grown weary of the role and wishes to assign it to someone else. He has narrowed the choice down to three people: Pamela’s (and Norman’s) brother, Bertrand, who lives in France; her (and his) other brother, Barry, who lives in London but is only 14 years of age; and Tommy, a good friend of Norman’s, who lives in Brighton but is unknown to Pamela. Of these, it is only an authority given to Tommy that would divest Norman of the responsibility of being Pamela’s nearest relative. Her two younger brothers are both ineligible: Bertrand because, while Pamela is resident in the UK, he is not; and Barry because he is under 18 years of age.(If,rather than being unknown to Pamela, Tommy were to be her ex-husband, he too would be prohibited from having the role of her nearest relative delegated to him. Norman would have to find someone else for that role, or else retain it for himself. He could not, of course, authorise Pamela to perform it herself.)

4.14 Where the nearest relative authorises someone else to perform his or her functions, the authorisation will take effect when the other person receives it.23 The nearest relative must also forthwith give notice of the authorisation:

20 21 22 23 24 25

·

to the patient24

·

where the patient is liable to be detained in hospital, to the managers of that hospital25

The concept of ‘ordinary residence’ is discussed in paras. 2.73–2.80. See para. 2.23. MHA 1983, s 26(5). Regulations, reg 24(4). Ibid., reg 24(7)(a). This was not the position before MHA 1983 was amended. Ibid., reg 24(7)(b).

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·

where the patient is subject to guardianship, to the responsible local social services authority and the private guardian, if any26

·

in the case of a community patient, to the managers of the responsible hospital.27

4.15 Notice of any such authorisation must be given in writing and, if the recipient agrees, may be transmitted electronically.28 4.16 In the case of an informal patient, there is nothing to require a nearest relative who authorises someone else to perform his or her functions to give notice of the authorisation to the hospital managers (nor is there anything to prohibit him or her from doing so). Example 61 In example 60 above, Norman decides to authorise Tommy to perform the nearest relative functions in respect of Pamela. He confirms his decision with Tommy. Until he puts it in writing, however, the authority will not have been given and Norman will remain the nearest relative.In fact,that is the case unless and until the written authority is actually received by Tommy. Pamela must also be told of this development. Example 62 Two days before Norman made his decision, Pamela was admitted to hospital under section 2 of MHA 1983. Therefore, when Norman has put his authority in writing, he must give it, not only to Tommy, but also to the managers of the hospital to which Pamela was admitted.

Revocation of an authorisation 4.17 Even though he or she might have authorised someone else to perform his or her functions, a nearest relative does not forfeit the role entirely; and while ever he or she retains the role, a nearest relative may revoke the authorisation.29 He or she will have to give written notice of such revocation, but may do so at any time, whether or not the patient to whom it relates is, or is to be, detained or made subject to guardianship under MHA 1983.30

26 27 28 29 30

Ibid., reg 24(7)(c). Ibid., reg 24(7)(d). Ibid., reg 24(8). See also Reference Guide, para. 33.35. Ibid., reg 24(5). See also Reference Guide, paras. 33.30 and 33.35. Ibid.

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4.18 Where the nearest relative revokes an authorisation he or she gave to someone else, the revocation will take effect when the other person receives it.31 The nearest relative must also forthwith give notice of the revocation: ·

to the patient32

·

where the patient is liable to be detained in hospital, to the managers of that hospital33

·

where the patient is subject to guardianship, to the responsible local social services authority (or private guardian)34

·

in the case of a community patient, to the managers of the responsible hospital.35

4.19 There is nothing, save the statement that it may be transmitted electronically, to suggest that any such revocation must be in writing.36 It would be prudent, however, for it to be so (especially if the authorisation itself was in writing). 4.20 If the revocation related to an informal patient, the nearest relative would be well advised to notify the hospital managers that it has been revoked.

Expiry of an authorisation 4.21 Unless it is revoked, an authorisation given by the nearest relative will continue indefinitely. It will, however, come to an end: ·

if the person to whom it was given dies

·

if the person who gave it is displaced as nearest relative by the court or

·

if the person who gave it dies or ceases for some other reason to be the patient’s nearest relative.

4.22 This is to be contrasted with the position that obtains where a nearest relative is displaced by the court: the person whom the court appoints acting nearest relative will remain in post, even if the original nearest relative dies or is demoted on the section 26 list.37

31 32 33 34 35 36 37

Ibid., reg 24(6). Ibid., reg 24(7)(a). Again, this was not the position before MHA 1983 was amended. Ibid., reg 24(7)(b). Ibid., reg 24(7)(c). Ibid., reg 24(7)(d). See para. 4.15. See paras. 4.80–4.81.

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Example 63 In examples 60, 61 and 62 above, Bertrand becomes ordinarily resident in the UK.Because he is also Pamela’s brother,but older than Norman,he will become her nearest relative and the authority Norman gave to Tommy will cease to have effect. Example 64 Bertrand dies shortly after his arrival in the UK and, being the next eldest, her brother,Norman,becomes Pamela’s nearest relative once again.As such,he is in a position to authorise someone else to exercise his functions and could again choose Tommy in that regard. His previous authority has come to an end, however,so that if Tommy is indeed to exercise the nearest relative functions, a new authorisation will be required.

Example 65 Priyamkara is a patient under MHA 1983.His nearest relative,Nitesh,delegates his own powers as nearest relative to Donna. Nitesh dies and, consequently, Donna ceases to be Priyamkara’s nearest relative. Example 66 In example 65, if Donna had been appointed, not by Nitesh, but by the court, Nitesh’s death would have had no impact upon her status: she would have remained Priyamkara’s nearest relative. Example 67 In example 66, if, Nitesh having delegated his powers to Donna, the court displaced Nitesh and appointed Alex as acting nearest relative, Donna’s involvement would come to an end. In such circumstances where Alex is appointed by the court but not by Nitesh, Alex would remain Priyamkara’s nearest relative, notwithstanding Nitesh’s death.

4.23 There is no fixed procedure whereby a person who no longer wishes to undertake the role of nearest relative might reject the authorisation given to him or her by the original nearest relative. He or she should, however, discuss any concerns with the original nearest relative, in the hope, perhaps, that that person will agree to revoke the authorisation. If the authorisation no longer applies, the relevant powers will revert to the person who is the patient’s nearest relative by virtue of section 26 of MHA 1983.

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4.24 The court has the power to direct that the functions of nearest relative be exercised by someone other than the person who would otherwise be entitled to exercise them.38 That is so, whether the entitlement arises under section 26 of MHA 1983 or by virtue of an authorisation given by the person whom that section fixes with the role of nearest relative. This means, for example, that even where a person is authorised by the nearest relative to perform those functions in connection with a patient, that power may be taken away if the person becomes incapable of acting as the nearest relative by reason of mental disorder or other illness.39

Being displaced as nearest relative 4.25 The second circumstance in which the nearest relative might cease to be such is where an ‘acting’ nearest relative is appointed by the court, effectively displacing the original nearest relative. 4.26 The appointment of an acting nearest relative is covered in section 29 of MHA 1983.40

Application 4.27 An application for the appointment of an acting nearest relative must be made to a county court.41 (Such applications are often referred to as ‘displacement’ – or ‘appointment’ – applications.) It may be made where a patient is not currently subject to MHA 1983, but not if he or she is currently well (even if it is likely that he or she will become unwell again in the future).42 4.28 A displacement or appointment application may be made by: 1. The patient.43 This was not the position before MHA 1983 was 44 amended by the Mental Health Act 2007 (MHA 2007). 45

2. Any relative of the patient. Relative means the same here as in section 26(1).46 Therefore, the only relatives able to make application under section 29 are those who might have qualified as the patient’s nearest relative in any event. A relative whose relationship with the 38 39 40 41 42 43 44 45 46

MHA 1983, s 29(1). MHA 1983, s 29(3)(b). See Appendix 1. See also Reference Guide, paras. 33.38–33.40. MHA 1983, s 29(1). Reference Guide, para. 33.40. MHA 1983, s 29(2)(za). MHA 2007, s 23(4)(a). MHA 1983, s 29(2)(a). See paras. 2.9 et seq.

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patient is more distant than those set out in section 26(1) – for example, a cousin or stepchild of his or hers – will not be able to apply under section 29 (unless he or she falls within paragraphs (3) or (4) below). The same is true of a concerned bystander. 3. Any other person with whom the patient is residing (or, if the patient is in hospital, with whom he or she was residing before being 47 admitted to hospital). There is no requirement that the applicant be someone with whom the patient ordinarily resides.48 This suggests that mere residence is sufficient (and no thought need be given to a patient’s intentions, for example). 4. An Approved Mental Health Professional (AMHP).49 4.29 It is usually by an AMHP that a displacement or appointment application is made. The following are the circumstances in which the Code of Practice says that an AMHP should consider making such an application: ·

The AMHP believes a patient should be detained under section 3 of MHA 1983 or made subject to guardianship, but the nearest relative objects to such a course.

·

The AMHP believes that the nearest relative is likely to discharge a patient from detention or guardianship unwisely.50

·

A patient has no identifiable nearest relative, or his or her nearest relative is incapable of acting as such.

·

The AMHP has good reason to think that a patient considers his or her nearest relative unsuitable and would like him or her to be replaced.51

4.30 The existence of any one of these circumstances might prompt an AMHP to decide to make a displacement or appointment application him- or herself. That decision should only be made, however, if it would not be reasonable to expect the patient, or anyone else, to make the application. In that regard, an AMHP should bear in mind that some patients might wish to apply to displace their nearest relative but be deterred from doing so by the need to make a formal application to the court.52

47 48 49 50 51 52

MHA 1983, s 29(2)(b). The concept of ‘ordinary residence’ is discussed in paras. 2.73–2.80. MHA 1983, s 29(2)(c). Department of Health 2008, Mental Health Act 1983: Code of Practice [‘Code of Practice’], para. 8.10. Ibid., para. 8.11. Ibid., para. 8.12.

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4.31 Before making an application him- or herself, an AMHP should consider other ways of achieving a similar end. These include: ·

the nearest relative authorising someone else to perform functions on his or her behalf53 and

·

enabling the patient or someone else to make an application for themselves.54

Example 68 Sally is the nearest relative of her sister, Prunella who lives alone. Barry is Sally’s brother and Prunella’s stepbrother. He believes Sally should not be Prunella’s nearest relative. Even though he might have compelling reasons to do so, he cannot apply for Sally’s displacement because his relationship with Prunella – that of stepbrother and stepsister – is not one of those set out in section 26 and, therefore, he does not qualify as her ‘relative’ for the purposes of MHA 1983. It would seem that if there were to be an application, it would have to be made by an AMHP, or, of course, by Prunella herself. There might be a wider choice of applicants,however,if Prunella were to be residing with someone else or to have a closer relative than Barry.

4.32 MHA 1983 says only that, in the relevant circumstances,55 a displacement or appointment application may be made; not that it must be made. Nevertheless, a person who failed to make an application in those circumstances might be called upon to explain his or her failure. That is particularly so where the person concerned is an AMHP. 4.33 As when performing his or her other functions under MHA 1983, an AMHP who makes an application under section 29 will do so in a personal capacity. This means, for example, that he or she will not be bound to follow an instruction by the local authority on whose behalf he or she is considering a case to the effect that he or she should or should not make such an application. A local social services authority should, however, provide clear practical guidance to help AMHPs decide whether to make a displacement or appointment application. Before doing so, each authority should consult with the court. It should also ensure that AMHPs have access to the necessary legal advice and support.56

53 54 55 56

See paras. 4.2–4.24. Code of Practice, para. 8.15. See paras. 4.34–4.56. Code of Practice, para. 8.16.

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Grounds 4.34 There are five grounds upon which an application may be made for the appointment of an acting nearest relative. They are set out in paragraphs 4.36 to 4.56 below. 4.35 If the displacement or appointment application is to succeed, the ground(s) upon which it is based must exist, not only at the time of application, but also at the time of the final hearing.57 This means, for example, that a nearest relative who does not object to the making of an admission application may not be displaced merely because he or she did object at the time the application was made and was believed to have done so unreasonably. Example 69 Last week, it was proposed that Petras be admitted to hospital under section 3 of MHA 1983. When she was consulted, however, his nearest relative, Niele, objected to such a course being taken. An application was therefore made to displace her as Petras’s nearest relative and that application is to be heard tomorrow. This evening, Niele says she no longer objects to Petras’s detention. It is unlikely that her original objection will now afford sufficient justification for her being displaced as Petras’s nearest relative. THE FIRST GROUND

4.36 The first ground is that (a) the patient has no nearest relative within the meaning of MHA 1983 or (b) it is not reasonably practicable to ascertain whether he or she has a nearest relative or who the nearest relative is.58 4.37 The old Memorandum said that it might be appropriate to make an application under this ground where, for example, there is someone that does not qualify under section 26 but is nevertheless keen to perform the role of nearest relative.59 Example 70 Paulo lives on the moors, miles from anywhere, and had long been thought never to associate, or even to have contact, with anyone else. He appears to have settled in Britain after the war and severed all links with his family in Italy. Recently, however, he has begun to receive visits from a local historian, Hector, with whom he has begun to discuss his life and experiences. It becomes likely that Paulo will have to be detained under MHA 1983 and desirable, therefore, that he should have a nearest relative. Because of their developing relationship, 57 58 59

Brenda Lewis v. Mark Gibson [2005] EWCA Civ 587, at [38]. MHA 1983, s 29(3)(a). Department of Health 1995, para. 108.

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it might be appropriate to consider whether Hector should undertake that role,and if so,whether an application might be made to the court in that regard. (Any such application will, of course, have to be made by an AMHP.) THE SECOND GROUND

4.38 The second ground for displacement is that the person who is the patient’s nearest relative by virtue of section 26 of MHA 1983 is incapable of acting as such by reason of mental disorder or other illness.60 4.39 If an order is to be made on this ground, it will have to be shown that the effect of the disorder or illness is to render the nearest relative incapable of fulfilling the functions the role carries. It will not be sufficient merely to show: ·

that the nearest relative is suffering from mental disorder or another illness, without demonstrating its effect, or

·

that the nearest relative has acted in an irresponsible or unwise manner, without establishing a disorder or illness, and a causal link between that and the nearest relative’s irresponsibility or lack of wisdom.

4.40 It might not be necessary to apply to the court to displace a nearest relative who suffers from mental disorder. If it appears to the AMHP that because of the disorder the circumstances are such that consultation with the nearest relative is ‘not reasonably practicable’ (or would involve unreasonable delay), the requirement to consult that person will not apply and the AMHP may proceed with an application for the patient’s admission under section 3 of MHA 1983 without having performed the consultation.61 (However, and as discussed elsewhere,62 it is only the duty to consult – and possibly the duty to provide information to the nearest relative – that will cease to apply in this circumstance. The other rights of the nearest relative will remain unaffected.) Example 71 It is likely that Pattie will soon have to be detained in hospital under section 3 of MHA 1983. Pattie’s nearest relative is her mother, Mavis, but she too is exhibiting signs of mental disorder. She claims that the television has spoken to her, although she seems to understand that this is probably a hallucination. As far as Pattie is concerned, Mavis is sure that she shouldn’t be detained but is content that she receives treatment in hospital. It is unlikely that an application to displace Mavis would succeed: there is no suggestion that her mental disorder 60 61 62

MHA 1983, s 29(3)(b). MHA 1983, s 11(4). See paras. 1.29 and 1.30.

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makes her incapable of being Pattie’s nearest relative. (If, however, there are concerns that her capacity for the role will diminish in future, it might be suggested to Mavis that she authorise someone else to act as nearest relative on her behalf.) THE THIRD GROUND

4.41 The third ground for displacement is that the nearest relative unreasonably objects to the making of an application, either for admission for treatment or for guardianship, or that he or she is likely to do so.63 4.42 If guidance in the old Memorandum is to be followed, an AMHP, when deciding whether to make application under this ground, should consult his or her superiors and the doctors who, it is to be presumed, are willing to supply medical recommendations in support of any admission application.64 4.43 Whether or not it is unreasonable for the nearest relative to object to the patient’s compulsory admission will be judged objectively.65 In other words, the court will ask what a ‘reasonable person’ would do in the circumstances that obtain (and it will be irrelevant that the nearest relative believed him- or herself to be acting reasonably). (This position may be contrasted with the latitude afforded to an AMHP when he or she is called upon to determine a patient’s nearest relative. The lawfulness of any such determination will be judged according to a subjective standard. In other words, the AMHP will be judged simply on how he or she responded to the circumstances as they were understood to be, and not by reference to what a ‘reasonable person’ would have done.)66 4.44 The test the court will apply has been summarised as follows: [I]n considering whether [he or] she is reasonable or unreasonable we must take into account the welfare of the [patient]. A reasonable [nearest relative] surely gives great weight to what is better for the [patient]. [The nearest relative’s] anguish of mind is quite understandable: but still it may be unreasonable for [him or] her to withhold consent.67

4.45 It is not the case, however, that there is one ‘right’ decision a nearest relative might make, and that all other decisions will therefore be ‘wrong’. In each case, there will be a band of ‘reasonable’ responses, and provided his or her objection

63 64 65 66 67

MHA 1983, s 29(3)(c). See Bartlett and Sandland 2007, pp.170 et seq. Department of Health 1995, para. 108. W v. L [1974] QB 711, CA. See paras. 5.73–5.76. Re W (An Infant) [1971] 2 All ER 49, per Lord Hailsham LC at p.55, citing Lord Denning MR in Re L (An Infant) (1962) 106 Sol Jo 611 [interpolations are author’s own].

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to admission falls within that band, a nearest relative need not fear being displaced.68 So, for example, it has been held that: [I]t cannot possibly be outside that band of reasonable decisions for the [nearest relative] to agree with, and rely upon, a recent decision of a Mental Health Review Tribunal unless there has since been a change in the circumstances leading to that decision.69

This case demonstrated, however, ‘how difficult it is for the nearest relative to avoid being found unreasonable if his views differ from those of the hospital’.70 4.46 The use of an objective test in preference to a subjective one has been criticised, particularly because it implies that the nearest relative is simply a source of information for the professionals and not an independent actor with a perspective of his or her own to lend to the case. Bartlett and Sandland suggest: While the courts occasionally deny it, it is difficult to see that [section] 29 applications do not in the end collapse into a question of the court’s view of the best interests of the patient, and the courts are loathe [sic] to take a view divergent from the patient’s medical officers.71

4.47 Before adjudicating on the ‘reasonableness’ of any objection from the nearest relative, the court might wish to have evidence that compulsory admission to hospital is necessary. This is likely to come in the form of medical reports, or, more simply, of medical entries on the statutory admission forms. (The court should not, however, be influenced or distracted by any errors in the way those forms were completed.)72 Example 72 In example 71 above, when the time comes, Mavis objects to Pattie being detained under section 3 of MHA 1983.She says that neither the AMHP nor the doctors truly understand Pattie’s condition, and that they are far too eager to resort to detention.Though it will be possible to apply for Mavis to be displaced as nearest relative, it might be difficult to show on objective grounds that her objection to detention is unreasonable. The position would probably be different if she had given as the reason for her detention the suspicion that the world’s doctors have combined forces to outwit her. (This suspicion might also support displacement on the ground that Mavis is incapable of performing the role of nearest relative.)

68 69 70 71 72

Re W (An Infant) [1971] 2 All ER 49, per Lord Hailsham LC at p.56. Smirek v. Williams, Court of Appeal, 7 April 2000 (unreported), per Hale LJ at [17]. Ibid., per Hale LJ at [15]. See, for example, Bartlett and Sandland 2007, p.171. B (A) v. B (L) (Mental Health Patient) [1980] 1 WLR 116, CA.

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THE FOURTH GROUND

4.48 The fourth ground for displacement is that the nearest relative has exercised – or is likely to exercise – his or her power to discharge the patient, and that such was (or would be) without due regard to the welfare of the patient or the interests of the public.73 4.49 Where a nearest relative has exercised, or is likely to exercise, the discharge power in such a way, the old Memorandum said: ‘…the staff of the hospital concerned should consult the local social services authority, and if it is decided to apply to a county court, the hospital should provide any necessary evidence to support the application.’74 4.50 The old Memorandum also said that, where the nearest relative has already exercised his or her power of discharge, a displacement or appointment application should only be made if it is expected that the patient will be admitted to hospital again within three months.75 4.51 Whether or not, in exercising his or her power of discharge, a nearest relative had due regard to the patient’s welfare or the public interest will, again, be judged objectively.76 In other words, the court will ask what a reasonable person would do in the circumstances that obtain (and it will be irrelevant that the nearest relative believed him- or herself to have had due regard to the relevant factors). 4.52 It is a moot point whether, before the nearest relative has exercised his or her discharge power, it can ever be concluded that if he or she were to do so it would be ‘without due regard’. The court surely cannot know in advance the factors to which the nearest relative will have regard when the time comes. Example 73 In examples 71 and 72, Mavis finally withdraws her objection, with the result that the displacement proceedings come to an end. Once Pattie is detained, however, Mavis discharges her under section 23(2)(a) of MHA 1983. She says that in the five days that Pattie has been in hospital, she has received no medication, has not seen a doctor and has been allowed to abscond on no less than four occasions. She says she can provide better – and safer – care for Pattie at home. Though it will be possible to apply for Mavis to be displaced as nearest relative, it might be difficult to show on objective grounds that she used her discharge power without due regard to Pattie’s welfare or the interests of the

73 74 75 76

MHA 1983, s 29(3)(d). Department of Health 1995, para. 110. In regard to the old Memorandum, see the Introduction to this book. Ibid. Surrey County Council Social Services Department v. McMurray, Court of Appeal, 11 November 1994 (unreported).

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public. (This will be especially so if, a barring certificate having been issued by her Responsible Clinician, a Mental Health Review Tribunal subsequently decided that Pattie was not ‘dangerous’ and that she should therefore be discharged from detention.) The position would probably be different if Mavis had given as her reason for discharging Pattie the belief that the world’s doctors were against her. (Again, that belief might also support displacement on the ground that Mavis is incapable of performing the role of nearest relative.) THE FIFTH GROUND

4.53 The fifth ground is that the nearest relative of the patient is otherwise not a suitable person to act as such.77 4.54 Time, and the courts, will decide what it means for someone to be ‘unsuitable’ in this regard. 4.55 This ground was, of course, added by MHA 2007,78 and when the Bill that became that Act was debated in Parliament, the then Health Minister, Rosie Winterton, said, ‘[W]e intend the idea of unsuitability to cover situations in which there is no effective relationship between the patient and the nearest relative, or where the relationship has broken down irretrievably.’79 It seems, therefore, that a nearest relative might be unsuitable for the role, even if there is no history of abuse. This possibility, and others it introduces, has been the subject of adverse comment.80 Example 74 Phoebe suspects that, before long, she will have to be admitted to hospital under MHA 1983 once again. Her nearest relative is Noah, who Phoebe says abused her when she was a child. She says that when she thinks of Noah being involved in her life, and in particular, of his being consulted and given information about her detention, it makes her angry and upset. In fact, Phoebe’s psychiatrist says that this prospect might well precipitate the very relapse that she fears. It might be possible to persuade a court that Noah is not a suitable person to act as Phoebe’s nearest relative, and that he should be displaced in favour of someone else.

4.56 Even though it will be for the court to decide whether a particular nearest relative is ‘unsuitable’,81 an Approved Mental Health Professional (AMHP) will 77 78 79 80 81

MHA 1983, s 29(3)(e). MHA 2007, s 23(5)(b). Rt Hon Rosie Winterton MP, Hansard, 18 June 2007, col 1099. See paras. 1.42 and 1.43. Code of Practice, para. 8.13.

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have personal responsibility for deciding whether to make an application.82 The Code of Practice says that, when making that decision, an AMHP might consider whether: ·

there is any reason to think that the patient has suffered, or might suffer, abuse at the hands of the nearest relative (or of someone with whom the nearest relative is in a relationship)

·

there is any evidence that the patient is afraid of the nearest relative or seriously distressed by the possibility of that person being involved in their life or care, or

·

the patient and the nearest relative do not know each other or have only a distant relationship, or the relationship between them has broken down irretrievably.83

Example 75 In example 74, it might be preferable for any application to be made, not by Phoebe, but by an AMHP.

Procedure 4.57 The procedure for dealing with an application under section 29 of MHA 1983 is now set out in Part 8 of the Civil Procedure Rules (CPR) 199884 and paragraph 18.1 of the Practice Direction to that part.85 (The references in MHA 1983 to ‘Country Court Rules’ are out of date.)86 4.58 This means, for example, that:

82 83 84 85 86 87 88

·

such an application should be made to the county court for the district in which the patient’s place of residence is situated87

·

where the application is to discharge or vary a displacement order, it should be to the court that made that order88

·

the nearest relative must be made a party to the application, unless: (a) the application has been made under section 29(3)(a) on the ground that the patient has no nearest relative or that it is not

Ibid., para. 8.14. Ibid., para. 8.13. SI 1998 No 3132 (as amended). Available at www.justice.gov.uk/civil/procrules_fin/contents/parts/part08.htm Available at www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part08.htm Reference Guide, para. 33.63. Civil Procedure Rules [CPR] Rule 8.1(6) and CPR Part 8 Practice Direction [PD] para. 18.2(1). CPR Rule 8.1(6) and PD para. 18.2(2).

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reasonably practicable to ascertain who the nearest relative is;89 or (b) the court orders that the nearest relative need not be made a party90 ·

the court may order that someone else be made a party to the application.91 A patient may (and should) be given an opportunity to participate in the proceedings92

·

the Part 8 procedure must be followed

·

the application must be made on the CPR Part 8 claim form.93

4.59 When making an application to displace a nearest relative, an AMHP should nominate someone else to take on the role if the application is successful.94 (The Reference Guide says both that the AMHP need not nominate an alternative nearest relative and that he or she may choose to put forward more than one name in that regard.)95 Local social services authorities should provide clear guidance to help an AMHP decide whom it might be appropriate to nominate as acting nearest relative.96 Wherever practical, an AMHP should consult the patient about his or her own preferences, and his or her views about the proposed nominee, before the application is made.97 Those preferences and views, and the process by which they were solicited, should be carefully recorded. They need not, however, be followed, and an AMHP may nominate as acting nearest relative someone not put forward by the patient him- or herself. If a decision is made to disregard the patient’s choice as nearest relative, the rationale for that decision should also be recorded. Although such a course is not mandatory, the AMHP should also seek the proposed nominee’s consent to act as nearest relative.98 Example 76 In examples 74 and 75, Amy, an AMHP, decides to make the application for Noah’s displacement. Amy asks Phoebe whom she would like to be her nearest relative and makes a careful note of Phoebe’s reply. The person named by Phoebe is her close friend, Jade. Amy knows, however, that Jade has been convicted of stealing money from Phoebe, and she decides not to nominate her as

89 90 91 92 93 94 95 96 97 98

CPR Rule 8.1(6) and PD para. 18.3(1)(a). CPR Rule 8.1(6) and PD para. 18.3(1)(b). See also Code of Practice, para. 8.20. CPR Rule 8.1(6) and PD para. 18.3(2). Brenda Lewis v. Mark Gibson [2005] EWCA Civ 587, per Thorpe LJ at [40] and Wall LJ at [44]–[46]. Available at www.hmcourts-service.gov.uk/courtfinder/forms/n208_1000.pdf Code of Practice, para. 8.18. Reference Guide, para. 33.42. Code of Practice para. 8.19. Ibid., para. 8.18. Ibid.

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acting nearest relative. Instead, and with his consent, she nominates Phoebe’s brother, Brandon. When hearing Amy’s application, the court accepts that Brandon is a suitable person and therefore appoints him Phoebe’s acting nearest relative.

4.60 Where a section 29 application is made because the nearest relative is incapable of acting as such by reason of mental disorder, it is likely that a ‘litigation friend’ will have to be appointed for him or her.99 This will certainly be so where the nearest relative’s mental disorder comes within the meaning of MHA 1983 and renders him or her incapable of conducting the proceedings.100 In those circumstances, the requirements of Part 21 of the Civil Procedure Rules will have to be fulfilled.101 It is possible that the Official Solicitor will agree to act as the litigation friend of a nearest relative in these circumstances, and that local agents will be appointed to appear at any court hearing. 4.61 When it is received by the court, a section 29 application will be dealt with by a circuit judge. (In other words, it cannot be dealt with by a mere district judge.)102 4.62 Displacement applications ‘have to be dealt with quickly’.103 However, there is at least one case in which such an application was not heard for a year,104 and another in which proceedings were only finally disposed of after two years.105 Until – and unless – the court appoints an acting nearest relative, the original nearest relative will continue to enjoy the powers granted to him or her by MHA 1983, even though a displacement application has been made and is waiting to be heard. (However, the court may make a displacement order on an ex parte or an interim basis.)106 4.63 Unless the court orders otherwise, a displacement application will be heard in private.107 In other words, the public will not be admitted and only the parties will be present when the hearing takes place. Hospital managers should provide support to enable detained patients to attend the hearing of such applications.108

99 100 101

102 103 104 105 106 107 108

CPR Rule 21.2(1). CPR Rule 21.1(2). Available at www.justice.gov.uk/civil/procrules_fin/contents/parts/part21.htm. See also CPR, Practice Direction – Children and protected parties – www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part21.htm CPR, Practice Direction – Allocation of cases to levels of judiciary, para. 11.1(a)(vii) – www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part2b.htm R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [39]. Derbyshire County Council v. Maude [1999] EWCA Civ 1760, per Sedley LJ. R (MH) v. Secretary of State for Health [2005] UKHL 60. See paras. 4.70 and 4.71 and 4.72 and 4.73. CPR Rule 8.1(6) and PD para. 18.6. Code of Practice, para. 8.20.

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4.64 The patient may be interviewed by the circuit judge or, at his or her direction, by a district judge. Any such interview may, but need not, take place in the presence of the other parties or be held at court.109 4.65 When hearing a displacement application, the court may accept as evidence of the facts it contains any report made by a medical practitioner.110 4.66 The court may also accept as evidence of the facts it contains any report made in the course of his or her official duties by: ·

a probation officer

·

an officer of a local authority

·

an officer of a voluntary body exercising statutory functions on behalf of a local authority or

·

an officer of a hospital manager.111

4.67 Where, in the course of displacement proceedings, a court considers such a report, the nearest relative ‘must be informed of the substance of any part of the report dealing with his [or her] fitness or conduct that the court considers to be material to the determination of the claim’.112 The patient may challenge such a report and will be able to introduce evidence of his or her own in order to do so. 113

DISCLOSURE

4.68 Where displacement proceedings are begun because a patient is to be brought under MHA 1983, or because the nearest relative has used his or her power of discharge, the court should be given the basic documents: the admission application form and the medical recommendations (and any renewal reports). Although it has been suggested that it would be sufficient for disclosure of any such documents to be given to his or her legal representative,114 the Court of Appeal has more recently held that they should also be disclosed to the nearest relative himor herself (and to the other parties).115 The only exception to this rule would be where there were competing factors, such as national security or risk to a child, that might outweigh it.

109 110 111 112 113 114 115

CPR Rule 8.1(6) and PD para. 18.7. See also Code of Practice, para. 8.22. CPR Rule 8.1(6) and PD para. 18.4(1). CPR Rule 8.1(6) and PD para. 18.4(2). (A ‘hospital manager’ has the same meaning here as in s 145(1) of MHA 1983.) CPR Rule 8.1(6) and PD para. 18.5. See also paras. 5.99 et seq. B (A) v. B (L) (Mental Health Patient) [1980] 1 WLR 116. R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [36] and [41]. See also Re D (Adoption Reports: Confidentiality) [1996] AC 593, per Lord Mustill at p.615.

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4.69 In fact, the Court of Appeal has gone further, suggesting that disclosure should be governed by the same considerations in displacement proceedings as in MHRT proceedings.116 If that were so, it would mean that: ·

a nearest relative would be entitled to see every relevant document received by the court unless disclosure would be likely to cause the nearest relative or some other person serious harm.

·

even if a document were withheld from a nearest relative on that ground, it might still have to be disclosed to any legal representative he or she chose to instruct.

HEARINGS ex parte

4.70 The county court may hear a section 29 application on an ex parte basis; in other words, in the absence of one or more of the parties.117 (In one case, a nearest relative was given two hours’ notice of a ‘displacement’ hearing and not served with any papers.)118 The ‘basic requirements of fairness in legal proceedings’ dictate that, if the circumstances so permit, the nearest relative, as well as the patient or his or her legal representative, must be informed of a displacement hearing before it takes place.119 Furthermore, it is good practice for a judge hearing an ex parte displacement application to enquire whether it was practicable for an absent party to be notified of the hearing, and any failure by the judge to do so might be a basis for an appeal against any interim displacement order. However, the failure either to give notice of an ex parte hearing or to enquire why no such notice was given will not deprive the court of its power to displace the nearest relative.120 4.71 If, however, an order is made against him or her without notice, a nearest relative may apply for it to be set aside or varied on that ground alone.121 INTERIM ORDERS

4.72 Whether or not the relevant hearing is held ex parte, the court may make an interim order under section 29, appointing an acting nearest relative until the application can be heard in full.122

116 117 118 119 120 121 122

R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [38]. CPR 23.8. See also CPR, Practice Direction 23, para. 3. R v. Uxbridge County Court, ex parte Binns [2000] MHLR 179. R (Adrian Holloway) v. Oxfordshire County Council, Oxford County Court and Oxfordshire and Buckinghamshire Mental Health Partnership NHS Trust [2007] EWHC 776 (Admin), per Beatson J at [33]. Ibid., at [43] and [49]. CPR 23.10(1). County Court Act 1984, s 38; R v. Uxbridge County Court, ex parte Binns [2000] MHLR 179.

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4.73 Where the court makes such an interim order, it is the case both (a) that an admission application may be made by an AMHP on the basis of his or her consultation with the interim acting nearest relative and (b) that the managers to whom that application is addressed may lawfully accept it.123 This will be so even if the patient is already detained under section 2 of MHA 1983. However, where the application was made – and the interim order granted – because the nearest relative unreasonably objected to the making of an application: ·

‘it is preferable’ that the application be heard in full before an admission application is made, ‘unless there are cogent reasons to the contrary,124 and

·

it has even been suggested that if a patient is detained in consequence of the order, he or she will have to be released if the court declines to make it final.125

Order 4.74 Having heard an application under section 29, the judge will have the discretion to make or not to make an order, and he or she may decline to make an order, even if one of the grounds for doing so has been established.126 4.75 The court may direct that the functions of the nearest relative in respect of a patient127 be exercisable by another, specified person.128 (That is the only part the court may play. Having made, or declined to make, such an order, the court will have no continuing role in the care and treatment of the patient under MHA 1983.) 4.76 When making an order, the person the court must specify as the acting nearest relative is the one nominated in the application. That is so, however, only if: ·

that person is willing to act as nearest relative and

·

in the opinion of the court, he or she is a suitable person to do so.129

4.77 If, the application having nominated two or more persons, the court forms the opinion that more than one of them would be a ‘suitable’ person to act as nearest relative, it should specify one of them whom it thinks ‘fit’.130 Though it is not 123 124 125 126 127 128 129 130

R v. Central London County Court, ex parte London [1999] 3 All ER 991, CA. See also R(M) v. Homerton University Hospital NHS Trust and Barnet, Enfield and Haringey Mental Health NHS Trust [2008] EWCA Civ 197. Ibid., per Stuart-Smith LJ at para. 24. Ibid., at para. 22. MHA 1983, s 29(1). See also Barnet LBC v. Robin [1998] EWCA Civ 1630. As to the relevant grounds, see paras. 4.34–4.56. See Chapter 5. MHA 1983, s 29(1). MHA 1983, s 29(1A)(a). As to suitability see paras. 4.53–4.56. MHA 1983, s 29(1A)(a).

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defined in MHA 1983, the latter quality would appear to be different from the former. 4.78 If no one was nominated in the application, or if the person nominated is not considered suitable for the role, the court must specify such person as is, in its opinion, a suitable person to act as the patient’s nearest relative. (In order to be so specified, that person must be willing to take on the role.)131 4.79 There would seem to be nothing to require that in the case of an application made by an AMHP, the relevant local social services authority, and not the AMHP him- or herself, be appointed to the role. It is possible, therefore, that either a local social services authority or an individual AMHP will be named as a patient’s acting nearest relative. Each authority should consider its position with regard to the second of these possibilities; and with regard to the first, it should ensure that its scheme of delegation allows for the role, if conferred upon it in this way, to be performed by the Director of Social Services. (Separate arrangements will have to be made if the Director is, in turn, to nominate someone else to exercise the powers delegated to him or her.) Example 77 Having heard an application made in respect of a patient, Prakash, the court decides that his nearest relative should be displaced. The application was made by an AMHP, Alfie, and it nominated as acting nearest relative Prakash’s sister, Sunita. The court, however,is not satisfied that Sunita is a suitable person to act as Prakash’s nearest relative, 132 so it declines to specify her in its order. (The result would be the same if Sunita were eminently suitable for the role but unwilling to undertake it.) Instead,and having satisfied itself of his suitability,the court directs that Alfie exercise the functions of nearest relative in respect of Prakash. 132

Effect of order

4.80 Where the court makes an order, directing that the functions of a patient’s nearest relative be exercisable by a named person, that person will be the patient’s nearest relative and will be entitled to exercise those functions while ever the order continues in force. (This includes the power to authorise someone else to perform the functions.) That is the case, even where, by making its order, the court

131 132

MHA 1983, s 29(1A)(b). As to suitability see paras. 4.53–4.56. For suitability see paras. 4.53–4.56.

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effectively displaced the original nearest relative and that person no longer has priority according to the statutory list (because, for example, he or she has died).133 As the Reference Guide states: ‘The order has first to be discharged to allow the person who would otherwise now be the nearest relative to take over.’134 The same applies if the acting nearest relative dies: ‘In that case no-one can exercise the rights of the nearest relative while the order remains in force, until the court discharges it or varies it to appoint a new acting nearest relative.’135 4.81 This is to be contrasted with the position that obtains where a person becomes nearest relative, not as the result of a court order, but by virtue of an authorisation granted by the original nearest relative. In those circumstances, the acting nearest relative will cease to be such if the original nearest relative dies or if he or she loses priority on the statutory list.136 4.82 The displaced nearest relative might not lose all of his or her powers. If, following the appointment of an acting nearest relative, the patient subsequently becomes liable to be detained, subject to guardianship or a community patient, the displaced nearest relative may apply to the MHRT for the patient’s case to be reviewed. That is so, however, only if a displacement order was made because the nearest relative (a) unreasonably objected to the patient’s admission to hospital or into guardianship137 or (b) used, or proposed to use, his or her discharge power without due regard.138 One such application may be made within 12 months of the displacement order and a further such application within each succeeding 12-month period.139 (The acting nearest relative will also have the right to apply to the MHRT.)140 4.83 In addition, the displaced nearest relative will continue to have a ‘legitimate interest’ in the welfare of the patient, which ‘should always be paid proper respect by the authorities in making decisions about and arrangements for [the patient’s] care’.141 (It is likely that the interest of a nearest relative will not be ‘legitimate’ where the circumstances are such that, following the case of R (E) v. Bristol City Council, it is considered ‘impracticable’ to consult him or her about a patient’s detention under section 3 of MHA 1983.)142

133 134 135 136 137 138 139 140 141 142

MHA 1983, s 29(6). See also Reference Guide, paras. 33.56–33.59. Reference Guide, para. 33.58. Ibid., para. 33.59. See paras. 4.21 and 4.22. MHA 1983, s 29(3)(c). See paras. 4.41–4.47. MHA 1983, s 29(3)(d). See paras. 4.48–4.52. MHA 1983, s 66(1)(h) and (2)(g). MHA 1983, ss 29(6) and 66(1). See para. 6.44. Surrey County Council Social Services Department v. McMurray, 11 November 1994, CA, per Hale J. R (E) v. Bristol City Council [2005] EWHC 74 (Admin). See paras. 1.25–1.30.

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Example 78 In example 77 above, the nearest relative whom the court displaced was Prakash’s mother, Meera. Though displaced, Meera will not forfeit all her rights: she will still be entitled to make one application to the MHRT in respect of Prakash per year and to be taken into consideration when the authorities make any decisions about his care.

4.84 Where a local social services authority is appointed acting nearest relative, it will have additional responsibilities towards the patient if he or she is admitted to hospital or to a care home.143 Those responsibilities will apply whether the treatment the patient is to receive is for a mental disorder from which he or she is suffering or for a physical disorder. In particular, the authority must: ·

arrange for the patient to be visited and

·

take such other steps in relation to the patient as would be expected to be taken by his or her parents.

Duration of order 4.85 When making an order under section 29, the court may specify the period for which it is to continue in force,144 but only if the order was made because: ·

the patient has no nearest relative within the meaning of MHA 1983, or it is not reasonably practicable to ascertain whether he or she has a nearest relative or who the nearest relative is145

·

the person who is the patient’s nearest relative by virtue of section 26 of MHA 1983 is incapable of acting as such by reason of mental disorder or other illness146 or

·

that person is otherwise not a suitable person to act as nearest relative.147

4.86 The old Memorandum suggested that the court might choose to specify the duration of a displacement order where, for example, the patient has children who could become his or her nearest relative, but none of them is yet 18 years of age. The court could appoint an acting nearest relative until the eldest child attains his or her majority.148 143 144 145 146 147 148

MHA 1983, s 116. MHA 1983, s 29(5). (A detailed table, setting out the duration of the various forms of displacement or appointment order, may be found at paragraph 33.56 of the Reference Guide.) MHA 1983, s 29(3)(a). See paras. 4.36 and 4.37. MHA 1983, s 29(3)(b). See paras. 4.38–4.40. MHA 1983, s 29(3)(e). See paras. 4.53–4.56. Department of Health 1995, para. 108.

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4.87 An order made in these circumstances will expire at the end of any period specified by the court.149 Alternatively, it may be discharged by the court upon application to it.150 4.88 The court may not specify the duration of a displacement order made because the nearest relative: ·

unreasonably objected – or was likely so to object – to the making of an application151 or

·

exercised – or was likely to exercise – the discharge power without due regard to the welfare of the patient or the interests of the public.152

4.89 In either of those circumstances, the order may be discharged by the court, upon application to it.153 If the order is not so discharged, the following rules will apply: ·

If, when the displacement order was made or within three months thereafter, the patient became subject to detention under section 3 or section 37 of MHA 1983, to guardianship or to compulsory community treatment, the order will expire when he or she ceases to be so subject.154

·

If the patient was not, and did not within three months become, so subject, the displacement order will expire three months after it is made.155

4.90 Discharge is the only event in a patient’s detention that might bring an end to an order displacing his or her nearest relative; an order transferring him or her to another hospital, or from hospital to guardianship (or vice versa), will not have that effect.156 4.91 Whether or not the court specifies – or is able to specify – for how long a displacement order is to remain in force, the order might still be discharged or varied by the court in the circumstances set out in MHA 1983, section 30.157

149 150 151 152 153 154 155 156 157

MHA 1983, ss 29(5) and 30(4B)(a). See paras. 4.93–4.96. MHA 1983, s 29(3)(c). MHA 1983, s 29(3)(d). See paras. 4.57 et seq. MHA 1983, s 30(4)(a) and (4A). MHA 1983, s 30(4)(b). MHA 1983, s 30(4)(a). See paras. 4.92–4.103.

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Example 79 Poppy is detained under section 3 of MHA 1983, and her nearest relative is her brother, Ben. The court displaces Ben because it considers him incapable of acting as nearest relative by reason of his own mental disorder, and it specifies that the order shall continue for three months – that is until Poppy’s daughter, Diane, attains her majority. Ben will be displaced for the next three months, unless, in the interim, the order is varied or discharged by the court. Example 80 If Ben was displaced,not by reason of his incapacity,but because,for example,he had exercised his power to discharge Poppy without due regard to her welfare, the court would not have had the power to specify the duration of the displacement order and,unless it was varied or discharged by the court in the interim,it would have come to an end only when Poppy was eventually discharged from detention.

The discharge or variation of a displacement order 4.92 A displacement order may be (a) varied or (b) discharged upon application to the court.158 DISCHARGE

4.93 An application to discharge a displacement order may be made by the patient or the acting nearest relative.159 4.94 An application to discharge a displacement order may be made by the nearest relative if (a) the nearest relative has now ceased to be such (for example, because the patient has married and his or her spouse has thereby become the nearest relative) or (b) the order was made:

158 159

·

either because the patient had no nearest relative within the meaning of MHA 1983 or because it was not reasonably practicable to ascertain whether he or she had a nearest relative or who the nearest relative was

·

because the nearest relative was incapable of acting as such by reason of mental disorder or other illness or

MHA 1983, s 30. MHA 1983, s 30(1)(a). (A detailed table, setting out who may apply for the discharge of a displacement or appointment order, and the circumstances on which they may apply, may be found at paragraph 33.62 of the Reference Guide.)

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because the nearest relative was held not to be a suitable person to act as such.160

4.95 This means that the nearest relative cannot apply to discharge a displacement order made because: (a) he or she unreasonably objected – or was likely so to object – to the making of an application; or (b) he or she exercised – or was likely to exercise – the discharge power without due regard to the welfare of the patient or the interests of the public.161 Only the acting nearest relative may apply for discharge or variation of a displacement order made on one of those grounds. 4.96 Where a nearest relative is displaced because he or she is unsuitable and wishes to apply to discharge the relevant order, he or she will need the leave of the court to do so.162 VARIATION

4.97 An application to vary a displacement order may be made by (a) the patient, (b) the acting nearest relative, (c) any relative of the patient if the acting nearest relative has died or (d) an AMHP.163 The only permitted result of such an application would be to replace the acting nearest relative with another person.164 4.98 When varying a displacement order, the person the court must specify as the acting nearest relative is the one nominated in the application. That is so, however, only if: ·

that person is willing to act as nearest relative and

·

in the opinion of the court, he or she is a suitable person to do so.165

4.99 If, the application having nominated two or more persons, the court forms the opinion that more than one of them would be a suitable person to act as nearest relative, it should specify one of them whom it thinks ‘fit’.166 Though it is not defined in MHA 1983, the latter quality would appear to be different from the former. 4.100 If no one was nominated in the application, or if the person nominated is not considered suitable for the role, the court shall specify such person as is, in its opinion, a suitable person to act as the patient’s nearest relative. (In order to be so specified, that person must be willing to take on the role.)167

160 161 162 163 164 165 166 167

MHA 1983, s 30(1)(b). MHA 1983, s 29(3)(d). MHA 1983, s 30(1A). MHA 1983, s 30(2) and (3)(a) Ibid. MHA 1983, s 30(2A)(a). As to suitability, see paras. 4.53–4.56. Ibid. MHA 1983, s 30(2A)(b). As to suitability, see paras. 4.53–4.56.

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4.101 Where the acting nearest relative dies: ·

an application either to discharge or to vary the displacement order may be made by any relative of the patient168 and

·

until – and unless – the order is discharged or varied, no one will be able to exercise the nearest relative functions with regard to the patient.169

4.102 Where a displacement order is discharged or varied subsequently, that will not affect the validity of anything done in pursuance of it.170 Summary of who may apply and what they may apply for · An acting nearest relative may apply for either discharge or variation of a displacement order. · A displaced nearest relative may apply for discharge, but not where he or she was displaced because he or she acted (a) unreasonably or (b) without due regard. He or she may not apply for variation. · An AMHP may apply for variation of a displacement order, but not for its discharge. · Any relative of the patient may apply to vary or discharge a displacement order, but only where the acting nearest relative has died.

4.103 An application to vary or discharge an order made under section 29 of MHA 1983 must be made to the court that made the order.171

Miscellaneous 4.104 Where, at the time an application is made for an acting nearest relative to be appointed with regard to him or her, a patient is detained under section 2 of MHA 1983, the period of his or her detention might not come to an end after 28 days; it will last until: ·

168 169 170 171 172

the application has been finally disposed of, if no such appointment is made,172 or

MHA 1983, s 30(3)(a). In this context, as in others, ‘relative’ means someone falling within the section 26(1) list. MHA 1983, s 30(3)(b). MHA 1983, s 30(5). CCR Order 49, Rule 12(2). MHA 1983, s 29(4)(a).

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if an order is made, for a further seven days after the application has been finally disposed of.173

4.105 An application under section 29 will have been made once a claim form has been issued by the court.174 4.106 An application under section 29 of MHA 1983 will be regarded as having been ‘finally disposed of ’: ·

where no appeal has been made against the court’s decision (whether or not it was to appoint an acting nearest relative) and the time for making it has expired or

·

where an appeal has been made and either heard or withdrawn.175

4.107 However, there is at least one case in which a displacement application was not heard for a year,176 and another in which proceedings were only finally disposed of after two years.177 Example 81 Perry is detained under section 2 of MHA 1983. He applies to a MHRT, which, on 1 February, decides to discharge him from detention, but to defer his discharge until 15 February.178 On 8 February, an application is made to displace Perry’s nearest relative.Because the date of his discharge has been deferred and not yet arrived, and because Perry is therefore still liable to be detained, the effect of section 29(4) is to extend the period of his detention beyond 15 February, until the displacement application (and appeal arising out of it) has been finally determined.

173

174 175 176 177 178

MHA 1983, s 29(4)(b). It seems that in either circumstance, an application may be made – and accepted – for a patient to be detained under s3 of MHA 1983, notwithstanding the fact that he or she is still detained under s2. See R(M) v. Homerton University Hospital NHS Trust and Barnet, Enfield and Haringey Mental Health Trust [2008] EWCA Civ 197. CPR 7.2(1). MHA 1983, s 29(4). Derbyshire County Council v. Maude [1999] EWCA Civ 1760, per Sedley LJ. R (MH) v. Secretary of State for Health [2005] UKHL 60. MHA 1983, s 72(3).

CHAPTER 5

Admission and the Nearest Relative This chapter considers the powers of the nearest relative where a patient is – or is to be – admitted to hospital, or to guardianship, under the Mental Health Act 1983.

Introduction 5.1 The nearest relative of a patient who is subject to the Mental Health Act 1983 (MHA 1983) has a number of significant powers. Those powers exist whether the patient is admitted to hospital or placed into guardianship, and they: ·

arise before a patient’s admission or reception

·

apply to, and continue during, detention or guardianship

·

relate to consultation and the providing of information and

·

enable the nearest relative to discharge a patient, or at least to apply to a Mental Health Review Tribunal (MHRT) to the same end.1

5.2 This chapter considers each of these circumstances. It is worth noting, however, that where the patient is both a child and a ward of court, these powers may only be exercised with the permission of the court.2 5.3 Advocacy. As well as having the powers set out below, the nearest relative may ask an Independent Mental Health Advocate (IMHA) to visit and interview a patient. Where such a request is reasonable and made by someone who appears to be the patient’s nearest relative, the IMHA must comply with it.3 (The patient may decline to be interviewed by the IMHA.)4 IMHA services are, of course, for

1 2 3 4

For discussion of this last power, see paras. 6.37 et seq. MHA 1983, s 33(2). See para. 3.19. MHA 1983, s 130B(5). See also Department of Health 2008, Mental Health Act 1983: Code of Practice [‘Code of Practice’], para. 20.18. MHA 1983, s 130B(6).

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patients, not nearest relatives (and any information provided about those services should make that clear).5 5.4 Aside from his or her rights under MHA 1983, a nearest relative who gives a patient substantial and regular care might, like a non-nearest relative carer, be entitled to an annual assessment of his or her own needs,6 and even to specific carer services.7 (These entitlements do not arise from the nearest relative’s status under the Act, however, and they are therefore beyond the scope of this book.)

Before admission 5.5 It is possible for either an Approved Mental Health Professional (AMHP) or the nearest relative to make application for a patient’s admission to hospital or for his or her reception into guardianship.8 (It is not possible for the nearest relative to apply for a patient to become a community patient.)

The best applicant 5.6 It seems that, if possible, an admission application should be made by an AMHP. The Code of Practice says: An AMHP is usually a more appropriate applicant than a patient’s nearest relative, given an AMHP’s professional training and knowledge of the legislation and local resources, together with the potential adverse effect that an application by the nearest relative might have on their relationship with the patient.9

5.7 A doctor who is approached directly by a nearest relative about making an application should advise him or her that it is preferable for an AMHP both to consider the need for the patient to be detained and to make any subsequent application.10 The doctor should therefore advise the nearest relative of his or her right to require that a local authority direct an AMHP to take the patient’s case into consideration,11 and should not advise him or her to make an application simply to avoid the need for assessment by an AMHP.12

5 6

7 8 9 10 11 12

Code of Practice, para. 20.14. Carers (Recognition and Services) Act 1995, s 1; Carers and Disabled Children’s Act 2000, s 1. See also Department of Health 1999a, National Service Framework for Mental Health, Standard 6; Department of Health 1999b, Caring about Carers: National Strategy for Carers. Carers and Disabled Children’s Act 2000, s 2. See paras. 5.37–5.47 and 5.48–5.52. Code of Practice, para. 4.28. Ibid., para. 4.30. Under MHA 1983, s 13(4). See paras. 5.10–5.17 and Appendix 1. Code of Practice, para. 4.30.

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5.8 In fact, where detention is in prospect, it should always be possible for a patient to be assessed by an AMHP. The old Code of Practice said: A nearest relative should not be put in the position of having to make an application for admission under the Act because it is not possible for an Approved Social Worker [for which read AMHP] to attend for assessment. Subject to resources, local authorities should provide a 24-hour ASW service to ensure that this does not happen.13

5.9 The old Code said that local authorities should have explicit policies on how to respond to repeated requests for assessment where the condition of the patient has not changed significantly.14

Requiring that a patient’s case be considered 5.10 Under section 13(4) of MHA 1983, a nearest relative may require a local social services authority to make arrangements for an AMHP to consider a patient’s case with a view to making an application for him or her to be admitted to hospital. The relevant local social services authority will be the one for the area in which the patient is residing. By resorting to this power, a nearest relative would be insisting, in essence, that the patient be assessed for possible detention. 5.11 Where such a requirement is made by the nearest relative:

13 14 15 16 17

·

the local social services authority will be responsible for receiving it and, if it is properly made, for making arrangements for an AMHP to consider the patient’s case

·

it would seem that the authority has no discretion in the matter: if the requirement is proper, the arrangements will have to be made15

·

the Act does not, however, restrict the power of an authority to make those arrangements; neither would it seem to require an AMHP to consider a patient’s case nor to prescribe the manner in which he or she might do so16

·

the authority may make the arrangements, even if it has not been required to do so by the patient’s nearest relative17

·

the AMHP will be responsible for the manner in which he or she considers the patient’s case.

Department of Health and Welsh Office 1999, para. 2.37. Ibid., para. 2.38. But cf. paras. 5.16 and 5.17. MHA 1983, s 13(4). MHA 1983, s 13(1).

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5.12 There is nothing to say that a nearest relative must put any such requirement in writing and it is likely that it may be purely verbal in nature. The requirement might not be made in so many words, however, so AMHPs and local social services authorities should pay particular attention to suggestions by a nearest relative to the effect that something ‘ought to be done’ or that a patient ‘should be in hospital’.18 5.13 In any discussions with him or her, the AMHP should ensure that the nearest relative is aware of the section 13(4) power. 5.14 It is the local social services authority alone that may make arrangements and thereby initiate the section 13(4) process. Therefore, if a nearest relative directs his or her requirement to an AMHP, the AMHP should pass it to, and await the response of, the relevant authority. 5.15 It is possible that a requirement of the kind made possible by section 13(4) will be communicated through an intermediary. The old Code of Practice said that local authorities should give guidance to ASWs as to whether a request from a nearest relative might be accepted via a GP or other professional. (It said that such a request should be accepted, provided the nearest relative intended that it be passed on to the local authority.)19 5.16 The obligation of a local social services authority under section 13(4) exists only in relation to a ‘patient’. The definition of this word in MHA 1983 is: ‘a person suffering or appearing to be suffering from mental disorder’.20 This means that even though a nearest relative might require it to make arrangements, the authority need not do so if it concludes that the patient is (a) neither suffering nor appearing to be suffering from mental disorder or (b) not residing within its area. Any such conclusion should be communicated to the nearest relative in writing and, because it might be susceptible to legal challenge, based upon compelling, current grounds. 5.17 Likewise, there is no power for the nearest relative to require that arrangements be made where the objective is not a patient’s admission to hospital, but his or her reception into guardianship. Example 82 Nerys is concerned for Pwyll, whose nearest relative she is. Nerys approaches an AMHP,Arval,and tells him,‘I think Pwyll should be in hospital.’ Arval believes Nerys’s approach might invoke section 13(4) of MHA 1983, so he puts her in touch with the relevant local authority. Because of what Nerys tells it, and 18 19 20

See Jones 2006, para. 1–150. Department of Health and Welsh Office 1999, para. 2.38. MHA 1983, s 145(1).

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because it is satisfied that Pwyll resides within its area, the local authority arranges for Arval to consider Pwyll’s case.

Example 83 If the local authority had taken the view that Pwyll was neither suffering nor appearing to suffer from mental disorder,or if,upon further investigation,it had discovered that he was not residing within its area, there would have been nothing in law to compel that authority to make the arrangements it made with Arval.The fact that a section 13(4) request may be made through an intermediary might, however, enable the appropriate local authority (once it was ascertained) to receive such a request via the first authority.

Taking a patient’s case into consideration 5.18 The only obligation in section 13(4) is placed upon the local social services authority that is required to act by the nearest relative. Though the authority might employ him or her, the AMHP is in law an independent actor and may decide for him- or herself whether to consider the patient’s case. The AMHP might decline to do so, especially if he or she concludes that the patient is (a) neither suffering nor appearing to be suffering from mental disorder or (b) not residing within the area of the authority. Any such conclusion should be communicated to the nearest relative in writing. Because it might be susceptible to legal challenge, the conclusion should also be based upon compelling, current grounds. 5.19 There is nothing in MHA 1983 to say what the process of considering a patient’s case will involve. It is likely that it is less intensive than the process an AMHP is required to complete before making an application for admission to hospital, when he or she must, of course, ‘interview the patient in a suitable manner’.21 The Code of Practice, however, says: At the start of an assessment, AMHPs should identify themselves to the person being assessed, members of the person’s family, carers or friends and the other professionals present. AMHPs should ensure that the purpose of the visit, their role and that of the other professionals are explained. They should carry documents with them at all times which identify them as AMHPs and which specify both the [local social services authority] which approved them and the [authority] on whose behalf they are acting.22

21 22

MHA 1983, s 13(2). Code of Practice, para. 4.50.

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5.20 The nature and extent of the process will vary according to the circumstances, and, in particular, to what is known about the patient. It might, however, be influenced by such things as: ·

how recently an AMHP last considered the patient’s case

·

whether the patient is currently receiving services for mental disorder (either as an out-patient or as an in-patient)

·

what, in general, is known about the patient, and, in particular, about his or her social and family circumstances

·

what other professionals – such as the patient’s GP – have to say about the patient and

·

what is known about the nearest relative. (As Richard Jones puts it, ‘It could be that the nearest relative is the mentally disordered member of the “patient’s” family’.)23

5.21 The AMHP that considers a patient’s case will do so ‘with a view to making an application for his admission to hospital’.24 That is likely to be less exacting than the exercise that will precede an admission application, in which an AMHP must: satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need.25

5.22 Both the process of taking a patient’s case into consideration and its result should be recorded in writing. 5.23 Once arrangements have been made, the AMHP will be personally liable for the way in which a patient’s case is considered or, if appropriate, for the decision not to consider the case. Example 84 Following the events in examples 82 and 83, the AMHP, Arval, agrees to consider Pwyll’s case.He is satisfied both that Pwyll is residing within the area of the relevant local authority and that there is evidence that he is suffering from mental disorder. Arval knows that Pwyll has been diagnosed as suffering from schizophrenia, and that he was last in touch with mental-health services six months ago. He also knows that there are concerns that Pwyll stops taking his medication and neglects himself. Those concerns have most often been raised

23 24 25

Jones 2006, para. 1–150. MHA 1983, s 13(5). MHA 1983, s 13(2).

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by Nerys. Arval therefore speaks to Nerys and identifies himself to Pwyll. He tells them that he proposes to consider whether an application should be made for Pwyll’s compulsory admission to hospital, and explains what that process will involve and who else might be involved in it.

Deciding not to apply for admission 5.24 Even though he or she may consider the case, there is nothing to require an AMHP subsequently to make an application for the patient’s admission to hospital (or to guardianship) if he or she does not believe that the relevant circumstances exist.26 An AMHP might, for example: ·

conclude that the statutory admission criteria are not met27

·

not be satisfied that an application ought to be made in respect of the patient28 or

·

not be of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him or her.29

5.25 In this regard, the Code of Practice states: Although AMHPs act on behalf of a [local social services authority], they cannot be told by the [authority] or anyone else whether or not to make an application. They must exercise their own judgement, based on social and medical evidence, when deciding whether to apply for a patient to be detained under the Act. The role of AMHPs is to provide an independent decision about whether or not there are alternatives to detention under the Act, bringing a social perspective to bear on their decision.30

5.26 Even though an AMHP might decide not to make an application, that will not be the end of his or her responsibilities. The old Code of Practice suggested that the ASW (for which read AMHP) must also:

26 27 28 29 30 31

·

reflect on any needs he or she had assessed the patient to have, and on how those needs were to be met

·

ensure that the nearest relative had a clear understanding of any alternative arrangements and

·

record those arrangements in writing.31

MHA 1983, s 13(5) (but cf. para. 5.42). See, for example, MHA 1983, ss 2(2) and 3(2) (but cf. Code of Practice, para. 4.81). MHA 1983, s 13(1A)(a). MHA 1983, s 13(1A)(b). Code of Practice, paras. 4.51 and 7.17. Department of Health and Welsh Office 1999, para. 2.31.

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5.27 Subject to the normal considerations of patient confidentiality, the AMHP should discuss his or her decision and the reasons for it with the nearest relative.32 That is so, whether or not his or her assessment was precipitated by a formal requirement by the nearest relative (and the making of arrangements by the local social services authority). 5.28 If, however, the involvement of the AMHP was brought about by the nearest relative under section 13(4), the AMHP must confirm his or her reasons in writing.33 When doing so, he or she should provide, as far as possible, sufficient details to enable the nearest relative to understand the decision while at the same time preserving the patient’s right to confidentiality.34 (The reasons might include the fact that the AMHP has concluded that the patient is not, in truth, a ‘patient’ within the meaning of MHA 1983.) 5.29 When drafting any reasons, the AMHP should take care not to breach the patient’s confidentiality in a way that might infringe the common law or the Human Rights Act 1998. The AMHP might, however, be susceptible to legal challenge if the reasons he or she gives are not sufficiently clear and detailed. 5.30 Furthermore, the AMHP should ensure that the nearest relative is aware of his or her own right to apply for the patient’s admission. If the patient wishes to utilise that right, the AMHP should suggest that he or she consult with the relevant doctors.35 Example 85 Following the events in examples 82 to 84, Pwyll tells Arval that he wishes to come into hospital and is willing to do so on an informal basis. Arval discovers from Nerys, and also from the GP, that on the three previous occasions that Pwyll was admitted to hospital, it was as an informal patient. Arval concludes that the relevant criteria for detention under the Mental Health Act are not met and decides not to apply for Pwyll’s admission to hospital. (This, despite a conversation in which the director of adult services said to Arval, ‘That Pwyll bloke needs locking up.’) Arval writes to Nerys, informing her of his decision and the reasons for it.He tells her that Pwyll is to be admitted to hospital informally but that she herself has the right as nearest relative to apply for him to be detained there. Arval tells Nerys what she will need to do if she wishes to exercise that right.

32 33 34 35

Code of Practice, para. 4.78. MHA 1983, s 13(4). See Appendix 1. Code of Practice, para. 4.80. Ibid., para. 4.79.

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Conflicts of interest 5.31 There are circumstances in which, according to MHA 1983 and regulations made under it, there will be a potential conflict of interest, such that an AMHP may not make an application for a patient’s admission under the Act nor a medical practitioner give a medical recommendation in support of it.36 5.32 Where an admission application is being made by the nearest relative, a medical practitioner may not give a medical recommendation in support of it in the circumstances set out in paragraphs 5.33 to 5.35. 5.33 Business conflict. This possibility will arise where the medical practitioner is ‘closely involved in the same business venture’ with the nearest relative.37 That will include ‘being a partner, director, other office-holder or major share-holder of that venture’.38 The possibility of conflict, and thus the prohibition, will arise ‘even if the business venture is not associated with the provision of services for the care and treatment of persons with a mental disorder’.39 As for the meaning of ‘business venture’, it includes ‘any form of commercial enterprise from which the person concerned’ – here, the medical practitioner or the nearest relative – ‘stands to profit’.40 It does not, however, include ‘societies and similar organisations which are essentially non-commercial, and from which the people concerned do not stand to profit’.41 Where, therefore, a medical practitioner and a nearest relative are trustees of the same charity, there would seem to be nothing to prevent the former giving a medical recommendation in support of a MHA 1983 admission application made by the latter. 5.34 Professional conflict. This possibility will arise where the medical practitioner (a) directs the work of, or employs, the nearest relative or (b) works under the direction of, or is employed by, the nearest relative.42 It would seem, therefore, that the possibility of conflict, and the prohibition, would arise where the nearest relative who proposed to apply for a patient’s detention was employed as a secretary by the GP whom he or she approached to provide a recommendation. 5.35 Personal conflict. This possibility will arise where the medical practitioner is related to the nearest relative as: ·

36 37 38 39 40 41 42 43

a parent, sibling or child43

MHA 1983, s 12A; The Mental Health (Conflicts of Interest) (England) Regulations 2008 [‘Conflict Regulations’], SI 2008 No 1205. Conflict Regulations, reg 5(2). Ibid. Code of Practice, para. 7.7. Ibid., para. 7.8. Ibid. Conflict Regulations, reg 6(2). Ibid., reg 7(1)(a) and (2)(b).

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an uncle, aunt, grandparent, grandchild, first cousin, nephew, niece, parent-in-law, grandparent-in-law, grandchild-in-law, sister-in-law, brother-in-law, son-in-law or daughter-in-law44

·

a half-sibling45

·

a spouse or ex-spouse, or a civil partner or ex-civil partner,46 or

·

someone who is living with the nearest relative as if they were a spouse or a civil partner.47

5.36 These are not the only circumstances in which a conflict of interest might arise and, therefore, the making of an application or the providing of a recommendation would be inappropriate.48

Application for admission 5.37 As we have seen, where a patient is to be subject to MHA 1983, it is preferable that an application to that effect be made by an AMHP. A nearest relative may, however, make application for a patient to be: ·

admitted for assessment, under section 2 of MHA 1983 (or, in a case of emergency, under section 4)

·

admitted for treatment, under section 3 of MHA 1983, or

·

received into guardianship.49

5.38 In the case of a child patient who is a ward of court, the nearest relative may only make an application for his or her admission to hospital with leave of the court.50 5.39 A nearest relative may not make an admission application unless he or she has personally seen the patient: ·

44 45 46 47 48 49

50 51

within the last 14 days, if the application is under section 3 of MHA 1983,51 or

Ibid., reg 7(1)(b) and (2)(c). Ibid., reg 7(1)(c). Ibid., reg 7(1)(d). Ibid., reg 7(1)(e). See, for example, Code of Practice, paras. 7.15–7.17. MHA 1983, s 11(1). For MHA 1983, s 2 and a discussion of admission for assessment, see Jones 2006, paras. 1–029 to 1–039; see also Code of Practice, Chapter 4. For MHA 1983, s 3 and a discussion of admission for treatment, see Jones 2006, paras. 1–040 to 1–053; see also Code of Practice, Chapter 4. For MHA 1983, s 4 and a discussion of admission for assessment in cases of emergency, see Jones 2006, paras. 1–054 to 1–060; see also Code of Practice, Chapter 5. For MHA 1983, s 7 and a discussion of guardianship, see Jones 2006, paras. 1–086 to 1–090; see also Code of Practice, Chapter 26. MHA 1983, s 33(1). MHA 1983, s 11(5).

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within the last 24 hours, if the application is under section 4.52

5.40 A nearest relative (or any other applicant) will not have ‘personally seen’ the patient where he or she purports to have done so only through an intermediary.53 Actual face-to-face contact is required. 5.41 It seems that this obligation is not the same as the one placed on an AMHP who wishes to apply for a patient to be admitted to hospital. The AMHP must first ‘interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment’ the patient needs.54 The Court of Appeal has held that this interview may, but need not, take place when the applicant ‘personally sees’ the patient (and so complies with the section 11(5) duty).55 5.42 Although he or she might have the power to do so, a nearest relative will not have the duty to make an admission application, even though the circumstances may seem to render it appropriate. The nearest relative is therefore in a different position to the AMHP, who, if the relevant circumstances exist, must make an admission application.56 5.43 The forms that a nearest relative must use are as follows: ·

for an application for admission for assessment (under section 2 of MHA 1983) – Form A157

·

for assessment in a case of emergency (under section 4) – Form A958 and

·

for treatment (under section 3) – Form A5.59

5.44 A properly completed application for detention under the Act, together with the required medical recommendations, will give the applicant (the AMHP or the nearest relative) the authority to convey the patient to the hospital named in the application.60 5.45 An application for a patient’s admission to hospital under section 2 or section 3 of MHA 1983 cannot stand alone. It must be supported by the written

52 53 54 55 56 57 58 59 60

MHA 1983, ss 4(5) and 11(5). R v. South Western Hospital Managers, ex parte M [1994] 1 All ER 161. MHA 1983, s 13(2). See also Code of Practice, paras. 4.48–4.55. Re Whitbread (Mental Patient: Habeas Corpus) [1997] EWCA Civ 1945, per Phillips LJ. MHA 1983, s 13(1A). See Appendix 1. Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 [‘Regulations’], SI 2008 No 1184, reg 4(1)(a)(i). (An application by an AMHP will be in Form A2.) Regulations, reg 4(1)(e)(i). (An application by an AMHP will be in Form A10.) Ibid., reg 4(1)(c)(i). (An application by an AMHP will be in Form A6.) MHA 1983, s 6(1).

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recommendations of two registered medical practitioners.61 That is so, even if the application is made by the nearest relative. Each recommendation should state that in the opinion of its author the relevant admission criteria are met.62 (An application will be treated as having been made under section 4 of MHA 1983 where it is supported by only one such recommendation.) 5.46 The Code of Practice says that if the nearest relative is the applicant, any AMHP and other professionals involved in the assessment of the patient should give advice and assistance. But they should not assist in a patient’s detention unless they believe it is justified and lawful.63 (It is not clear how an AMHP might give assistance to a nearest relative-applicant without assisting in the patient’s detention.) Example 86 Following the events in examples 82 to 85, Pwyll is admitted to hospital as an informal patient,but Nerys decides to apply for him to be detained there under MHA 1983. Arval does nothing but give Nerys Form A5 and the names of doctors who might be willing to provide the requisite medical recommendations.

5.47 If a patient is admitted to hospital under section 2 or section 3 of MHA 1983 upon application by his or her nearest relative, the ‘managers’ of the hospital must inform the relevant local social services authority, which will be the one for the area in which the patient resided immediately before his or her admission. (This requirement does not apply where the patient is admitted under section 4, but it probably should be fulfilled where a patient’s detention, having begun under section 4, continues under section 2.) The authority must then arrange for an AMHP to interview the patient and provide a report on his or her social circumstances.64 The information must be given, and the AMHP’s interview arranged, as soon as practicable. Any report will be provided to the hospital managers.

Application for guardianship 5.48 Although, as before, an AMHP is the preferred applicant, a nearest relative may apply for a patient to be admitted to guardianship under sections 7 and 8 of

61 62 63 64

MHA 1983, ss 2(2) and 3(3). The factors to be taken into account when deciding between an application for admission under s 2 and one under s 3 are set out in paragraphs 4.25 to 4.27 of the Code of Practice. As to which, see MHA 1983, ss 2(2) and 3(3) respectively. Code of Practice, para. 11.15. MHA 1983, s 14; Code of Practice, para. 30.12.

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MHA 1983.65 (No such application may be made by the nearest relative – or by anyone else – where the patient is a ward of court.)66 5.49 However, no such application may be made by the nearest relative unless he or she has personally seen the patient within the period of 14 days ending with the date of the application.67 5.50 Once again, and as with a hospital admission application, a nearest relative will be under no obligation to make a guardianship application. 5.51 When making a guardianship application, the nearest relative must use Form G1.68 5.52 An application for a patient’s admission to guardianship must be founded upon the written recommendations in the prescribed form of two registered medical practitioners.69 That is so, even if the application is made by the nearest relative. Each recommendation should state that in the opinion of its author the relevant admission criteria are met.70

Consultation 5.53 In some circumstances, where it is proposed to take certain steps concerning a patient, the nearest relative has the right to be consulted about those steps.

Before an application for admission for treatment 5.54 This is perhaps the best known of the circumstances in which a patient’s nearest relative must be consulted. A DUTY TO CONSULT

5.55 The relevant provision is section 11(4) of MHA 1983, which provides that: ·

65 66 67 68 69 70 71

an AMHP may not make an application for a patient’s admission for treatment (under section 3 of MHA 1983) if the patient’s nearest relative has notified either the AMHP or the local authority on whose behalf the AMHP is acting that he or she objects to the application being made71 but

MHA 1983, s 11(1). See Jones 2006, paras. 1–085 to 1–114; see also Code of Practice, Chapter 26. MHA 1983, s 33(3). MHA 1983, s 11(5). Regulations, reg 5(1)(a)(i) and (1)(b). MHA 1983, s 7(3). As to which, see MHA 1983, s 7(2). MHA 1983, s 11(4)(a).

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the requirement to consult the nearest relative will not apply where the AMHP has not consulted the person appearing to be the nearest relative, but it appears to the AMHP that, in the circumstances, such consultation (a) is not reasonably practicable or (b) would involve unreasonable delay.72

5.56 It is interesting that this provision, which is the result of an amendment made by MHA 2007, does not state in terms, as its predecessor did, that the nearest relative must be consulted. It is therefore curious that the provision should speak of ‘the requirement to consult the nearest relative’ (even though it goes on to waive that ‘requirement’ in cases of impracticability or delay). At best, any such requirement is purely implicit, arising from the fact that the nearest relative, who may notify the AMHP of his or her objection to any application, can hardly be expected to do so unless he or she is aware that the application is to be made and by whom. 5.57 No similar requirement exists with regard to a patient’s admission for assessment (under section 2 of MHA 1983), and an application to that end may be made by an AMHP even though he or she has not consulted the nearest relative. (Likewise, there will be no section 11(4) duty where the patient concerned is a ward of court.)73 5.58 If an AMHP does not consult a nearest relative, he or she should record the reasons for that omission.74 PRACTICABILITY

5.59 Even where it exists, the section 11(4) duty need not be fulfilled if it appears to the AMHP that, in the circumstances, consultation is not reasonably practicable. 5.60 The Code of Practice warns, however, that ‘consulting and notifying the nearest relative is a significant safeguard for patients’. Decisions not to do so on grounds of practicability should not be taken lightly, therefore, and an AMHP should consider all the circumstances of the case, including:

72 73 74 75

·

the benefit to the patient of the involvement of his or her nearest relative

·

the patient’s wishes, if he or she is capable, or any ‘advance statement’,75 if he or she is not

MHA 1983, s 11(4)(b). MHA 1983, s 33(1). Code of Practice, para. 4.63. See paras. 5.61 and 5.62.

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·

any detrimental effect the involvement of the nearest relative might have on the patient’s health and well-being

·

whether the patient’s objection is motivated by a desire to prevent information relevant to the assessment being discovered76

·

whether – and if so, how far – the nearest relative has been involved on previous occasions (although ‘unwillingness to act previously should not automatically be taken to imply current unwillingness’).77

5.61 An advance statement is made by a person when he or she is capable and sets out his or her wishes and preferences (for example, with regard to health care or social care). If the person were to become incapable, an advance statement might have to be taken into account when determining his or her best interests,78 but it would never be binding. It should be contrasted with an advance decision, which is a refusal of certain specified treatment and might, in some circumstances, be binding.79 (Unlike those made for other purposes, an ‘advance decision’ about a patient’s nearest relative will not be binding. It might, however, be taken into account in the way that an advance statement would be.) 5.62 While the factors set out above must certainly be considered by an AMHP when he or she is deciding whether it is practicable to consult a nearest relative, they will not necessarily bear equivalent weight. The fact that a patient has made an advance statement, indicating that he or she does not want his or her nearest relative to be consulted, or that any such consultation could have a detrimental effect upon him or her, might not relieve the AMHP of the duty to consult. The only circumstances in which it is clear that such relief might be claimed are the ones discussed in paragraphs 5.64–5.67. In the alternative, a patient’s wishes or the possible detrimental effect of consultation might suggest that the nearest relative is unsuitable to act as such and be used to support an application for his or her displacement on that ground.80 5.63 It would almost certainly not be ‘reasonably practicable’ for an AMHP to consult a nearest relative where:

76 77 78 79 80

·

he or she cannot obtain sufficient information to establish the identity or location of the nearest relative

·

to do so would require an excessive amount of investigation involving unreasonable delay

Code of Practice, para. 4.61. Ibid., para. 4.62. Mental Capacity Act 2005, s 4(6)(a). Mental Capacity Act 2005, ss 24–26. See paras. 4.53–4.56.

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consultation is not possible because of the nearest relative’s own health or mental incapacity81 or

·

the nearest relative has made it clear that he or she does not wish to be consulted.

5.64 In addition, the High Court has accepted that consultation will not be practicable – and will therefore be unnecessary – where there is credible evidence that it would cause a breach of the patient’s right to respect for his or her private and family life under Article 8 of the ECHR.82 5.65 To guard against this eventuality, an AMHP must ask whether consultation, or the knowledge that it was to take place or had taken place, would: ·

cause the patient emotional distress or physical harm

·

lead to deterioration in his or her mental health or

·

expose him or her to the possibility of financial or other exploitation.83

5.66 If consultation would have the effect described above, it should not take place. This question must be asked, whether or not the patient is capable and/or objecting to his or her nearest relative being consulted. 5.67 In the case in question, the patient’s distress was occasioned by the poor relationship she had with her nearest relative, which, the court accepted, made it inappropriate for the ASW to consult her. In so holding, the court contradicted paragraph 2.16 of the old Code of Practice, which stated that consultation might not be dispensed with merely because it is considered inappropriate. The court said that this paragraph was both ‘wrong’ and ‘contrary to common sense’,84 and even before the old Code was revised, the paragraph was withdrawn. 5.68 The practice adopted in this case might be seen as a way of circumventing perceived – and acknowledged – difficulties with the nearest relative.85 It is only a partial solution, however, and although it might relieve the AMHP of the duty of consultation (and, possibly, the managers of the duty to provide certain information86), it will not affect the nearest relative’s other rights and powers. In any case, there will be few occasions on which the effect of consultation upon the patient will be as detrimental as, the court accepted, it would be here. The court acknowledged this, stating that the significant role of the nearest relative is not lightly to 81 82 83 84 85 86

Code of Practice, para. 4.59. R (E) v. Bristol City Council [2005] EWHC 74 (Admin). See paras. 1.25–1.30. See also Bartlett and Sandland 2007, pp.172 and 173. See Code of Practice, para. 4.60. R (E) v. Bristol City Council, supra, at [28]. See paras. 1.15–1.22. See paras. 5.99–5.147.

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be removed.87 (That cautious note has now found its way into the Code of Practice.)88 5.69 Consultation should not be dispensed with on grounds of ‘practicability’ merely because the nearest relative objects to the making of an application.89 If his or her objection is unreasonable, an application should be made to the court for an order displacing him or her as nearest relative; if it is not unreasonable, the objection should be allowed to prevail. 5.70 The old Code of Practice said that even if an Approved Social Worker (for which read AMHP) was not able to consult the nearest relative before making an application under section 3 of MHA 1983, he or she should continue to try to do so afterwards, if only to inform the nearest relative of his or her power of discharge. The old Code said that if and when he or she succeeded in giving the nearest relative such information, the ASW must so inform the hospital where the patient was now liable to be detained.90 Example 87 Some months ago, when he was capable of doing so, Paton made an advance statement, indicating that if he should need to be admitted to hospital again, he would not want his nearest relative, Niall, to play any part in the process. Paton has subsequently become incapable and his mental state has deteriorated, to the extent that an AMHP,Ailsa,must decide whether he should be detained for treatment. Having applied the relevant criteria, Ailsa concludes that Niall is Paton’s nearest relative. She knows about, and carefully considers, Paton’s advance statement,but in the absence of any information as to why it was made, she decides to disregard it and to consult Niall.Ailsa believes that Niall has been consulted on every previous occasion when Paton has been detained, and she concludes that the advantages to Paton of having his nearest relative consulted would outweigh any disadvantages.Ailsa’s approach would appear to be lawful. Example 88 Before she consults Niall, Ailsa receives more information. She learns from Paton’s new psychiatrist that Niall is now believed to have been abusing Paton for the past five years, and that if Paton becomes aware that his advance statement has been disregarded and Niall consulted about his admission, his mental state will deteriorate still further. Ailsa might now argue that consultation with

87 88 89 90

R (E) v. Bristol City Council [2005] EWHC 74 (Admin), at [29]. See para. 5.60. Code of Practice, para. 4.63. Department of Health and Welsh Office 1999, para. 2.16. (This comes from the part of that paragraph that was not withdrawn in the light of the E case.)

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Niall should be avoided on the ground that it is impracticable.91That same ground might be used to excuse a failure to provide certain information to Niall,but it will not affect his other rights as nearest relative.It might be possible to seek Niall’s displacement as nearest relative on the ground that the circumstances of the case make him unsuitable to act in that capacity, or even to persuade him to authorise someone else, who would be more acceptable to Paton, to exercise the nearest relative functions on his behalf. UNREASONABLE DELAY

5.71 The duty to consult the nearest relative also does not apply if it appears to the AMHP that in the circumstances such consultation would involve unreasonable delay. 5.72 There is nothing to say at what point a delay becomes unreasonable. Initially, that will be a question for the AMHP on the facts of a particular case, but ultimately, it might be one for the court to answer. APPEARING TO BE THE NEAREST RELATIVE

5.73 The requirement imposed on the AMHP is that he or she consult, not the nearest relative, but the person appearing to be the nearest relative of the patient. The two are not necessarily the same thing. 5.74 The test in this regard is entirely subjective. In other words, it will simply ask whether the person consulted appeared to the AMHP to be the patient’s nearest relative. It will be irrelevant whether, in forming that view, the AMHP acted reasonably.92 The question might be ‘whether it was open to the decision-maker on the information available to him to reach the conclusion he did’.93(The latitude afforded to the AMHP in this regard is to be contrasted with the somewhat stricter, objective standard, by which the court, when invited to displace a nearest relative, will judge the ‘reasonableness’ of his or her objection to admission.)94 5.75 When an AMHP is deciding whether – and if so, whom – to consult, he or she will not have a duty to make reasonable enquiries. It was said of ASWs that they need not ‘don the mantle of Sherlock Holmes’, and that any decision of an ASW would only be susceptible to legal challenge if he or she: ·

91 92 93 94

failed to apply the criteria in section 26 when attempting to determine the patient’s nearest relative

For further discussion about practicability see paras.5.59–5.70. Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848, CA. G D v. The Hospital Managers of the Edgware Community Hospital and the London Borough of Barnet., CO/5733/2008, Burnett J, 27 June 2008. See paras. 4.41–4.47.

ADMISSION AND THE NEAREST RELATIVE ·

acted in bad faith or

·

in some other way reached a conclusion that was plainly wrong.95

117

5.76 However, an AMHP will not have satisfied this requirement where the person he or she consults is, as a matter of law, incapable of being the nearest relative (for example, because he or she is ordinarily resident in the Republic of Ireland).96 THE TIMING OF CONSULTATION

5.77 The Act says only that consultation must take place before an application is made; it makes no express provision as to the application’s precise timing. The old Memorandum suggested that consultation might lawfully take place before (a) the ASW (for which read AMHP) had seen the patient (as he or she is required to do by section 11(5) of MHA 1983) or (b) one or both of the medical recommendations had been obtained.97 The consultation must, however, relate to the application that is proposed.98 Furthermore, it would seem that where consultation is deferred too long, it will not be consultation at all and the patient’s subsequent detention will be unlawful.99 THE FORM OF CONSULTATION

5.78 Ordinarily, it is desirable for an AMHP to consult the nearest relative in a face-to-face meeting. It would seem, however, that he or she might, in the alternative, do so through an intermediary.100 Where an intermediary is necessary, it is preferable that the role be performed by another AMHP. 5.79 It would seem that the purpose of the consultation is two-fold: ·

to provide information to the AMHP to help him or her decide whether to apply for the patient’s admission and

·

to put the nearest relative in a position to object to any such application.101

5.80 It has been held that the essence of consultation is ‘the communication of a genuine invitation to give advice and a genuine consideration of that advice’.102 Therefore, it will be insufficient for an AMHP merely to inform the nearest 95 96 97 98 99 100 101 102

R (WC) v. South London and Maudsley NHS Trust and another [2001] EWHC 1025 (Admin), per Scott Baker J at [27]. R v. South Western Hospital Managers, ex parte M [1994] 1 All ER 161. See paras. 2.60–2.65. Department of Health 1995, para. 30. Re Whitbread (Mental Patient: Habeas Corpus) [1997] EWCA Civ 1945, per Phillips LJ. G D v. The Hospital Managers of the Edgware Community Hospital and the London Borough of Barnet., CO/5733/2008, Burnett J, 27 June 2008. See para. 5.80. R v. South Western Hospital Managers, ex parte M [1994] 1 All ER 161. Re Whitbread (Mental Patient: Habeas Corpus) [1997] EWCA Civ 1945, per Phillips LJ. R v. Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 All ER 164, per Webster J at 167.

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relative of the proposed application.103 Where consultation was left to ‘the very last moment’, there was a danger that it would ‘seriously inhibit the chances of [the nearest relative] having any effective input into the process and the chances of his having an opportunity to make an objection’. In those circumstances, what took place ‘could not properly be considered consultation at all’, but would ‘amount to a misuse of power, albeit for the best of motives, that infected the application process from beginning to end’. So held Burnett J in a case in which the clinical team feared that, if he were consulted too early, a nearest relative would spirit the patient away, possibly out of the jurisdiction. Therefore, by the time the ASW consulted the nearest relative, briefly and by telephone, the matter had been discussed at a meeting of professionals and suitable arrangements made with the police; a warrant had been obtained under section 135(1) of MHA 1983; and four policemen, two doctors and an ambulance were already waiting at the patient’s home.104 5.81 It has further been held that, whatever its form, the consultation must be ‘full and effective, to ensure that the nearest relative has the opportunity to play his [or her] full part in the process’.105 Therefore, although there is nothing to state that the consultation may not be conducted via correspondence (or, one might add, e-mail or text messaging), it is hard to see how the use of such means would satisfy this requirement. 5.82 When consulting a nearest relative, the AMHP should: ·

ascertain his or her views, both about the patient’s needs and about the nearest relative’s own needs in relation to the patient

·

inform the nearest relative why an application for detention is being considered and what its effects would be, and

·

inform the nearest relative of his or her role and rights under MHA 1983.106

5.83 The duty to consult is placed on an individual AMHP, who will be personally liable for ensuring that it is properly and lawfully performed. Care should be taken, therefore, in communicating with the nearest relative not to breach the patient’s confidentiality in a way that might infringe the common law or the Human Rights Act 1998. That said, an AMHP might be susceptible to legal challenge if the information he or she gives to the nearest relative is not sufficiently clear and detailed. 103 104 105 106

Re Briscoe [1998] EWHC 771 (Admin). G D v. The Hospital Managers of the Edgware Community Hospital and the London Borough of Barnet., CO/5733/2008, Burnett J, 27 June 2008. See para. 5.77. R v. South Western Hospital Managers, ex parte M [1994] 1 All ER 161, per Laws J at pp.175, 176. Code of Practice, para. 4.64.

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OBJECTION

5.84 If the nearest relative gives notice that he or she objects to an application for a patient’s admission under section 3 of MHA 1983, no such application may be made.107 (If the objection is unreasonable, that might be a reason for seeking to displace the nearest relative.)108 Although a nearest relative may withdraw an objection, he or she should expect to be asked by an AMHP to provide written confirmation to that effect.109 5.85 Although an objection by the nearest relative to a patient admission for treatment under section 3 of MHA 1983 will have significant consequences, the AMHP need not expressly invite such an objection.110 If his or her objection is to be respected, the nearest relative will have to tender it before an admission application has been ‘made’. It has been held that this is achieved only when the application ‘is given to the hospital staff ’.111 (In fact, if an application that is to provide a lawful basis for a patient’s admission under MHA 1983 is served upon a person, that person must be authorised to receive it.)112 Under section 6(1) of MHA 1983, of course, an admission application will provide authority for a patient to be conveyed to the hospital where he or she is to be detained, even if it has not been served there. All that is necessary is that the application is ‘duly completed’ under the Act. The implication of this holding, therefore, is that a patient may not be detained under section 3 of MHA 1983 if his or her nearest relative’s objection is made after the patient has been conveyed to the hospital but before the requisite forms have been received by its staff. 5.86 If the nearest relative does not object to a patient being admitted under section 3, or if he or she merely ‘wishes to sit on the fence’, the AMHP may proceed with the application113 The same is so where the nearest relative withdraws his or her objection. In such circumstances, however, it would be prudent for the AMHP who subsequently makes a detention application to obtain written confirmation that the nearest relative’s objection has been withdrawn.114 5.87 Once a decision has been taken to detain a patient under section 3, it is not open to an AMHP to seek to over-reach the nearest relative’s objection by applying for the patient to be detained under section 2 instead.115 This is made

107 108 109 110 111 112 113 114 115

MHA 1983, s 11(4)(a). Under s 29 of MHA 1983, as to which, see paras. 4.41–4.47. Re Shearon [1996] COD 223, DC, per Brown LJ. See Jones 2006, para. 1–122. Re GM (Patient: Consultation) [2000] MHLR 41. G D v. The Hospital Managers of the Edgware Community Hospital and the London Borough of Barnet., CO/5733/2008, Burnett J, 27 June 2008. See paras. 5.77 and 5.80. Regulations, reg 3(1)(a). R (G) v. Ealing LBC [2002] EWHC 1112 (Admin), per Scott Baker J at [10]. Re Shearon [1996] COD 223, DC, per Simon Brown LJ. R v. Wilson, ex parte Williamson [1996] COD 42.

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clear by section 11(4), the amended version of which states that impracticability or delay will only serve to waive the consultation ‘requirement’ where the AMHP has not already consulted the nearest relative.116 5.88 Where an application is, or is to be, made for a patient to be admitted, not under section 3 of MHA 1983, but under section 2, the nearest relative has the right to be informed – but not consulted – about that application. The nearest relative may be so informed either before or after the application is made, and he or she will not have the right to object to it.

Before an application for guardianship 5.89 A nearest relative has the same consultation rights in connection with a guardianship application that he or she has in connection with an application for admission to hospital. Once again, the relevant provision is section 11(4) of MHA 1983, which provides that: ·

an AMHP may not make an application for a patient’s admission to guardianship (under section 7 of MHA 1983) if the patient’s nearest relative has notified either the AMHP or the local social services authority on whose behalf the AMHP is acting that he or she objects to the application being made117 but

·

the requirement to consult the nearest relative will not apply where the AMHP has not consulted the person appearing to be the nearest relative, but it appears to the AMHP that, in the circumstances, such consultation (a) is not reasonably practicable or (b) would involve unreasonable delay.118

5.90 The same considerations apply with regard to consultation prior to a guardianship application as apply where the application that is to be made is for a patient’s admission to hospital.119 Example 89 It is proposed to admit Padruig to guardianship. The relevant AMHP, Aleck, is aware that when Padruig was capable,he made an advance statement indicating that if he ever needed to be made subject to MHA 1983 he did not wish his nearest relative, Nessa, to be involved in the process. Aleck believes, however, that Padruig did this because he thought the information Nessa gave would show him in a bad light.Aleck decides,therefore,to disregard Padruig’s advance 116 117 118 119

MHA 1983, s 11(4)(b). MHA 1983, s 11(4)(a). MHA 1983, s 11(4)(b). See paras. 5.54–5.88.

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statement.When he approaches her,however,Nessa tells Aleck in no uncertain terms that she does not wish to have anything to do with the matter. Aleck therefore completes the admission application, indicating that it was impracticable to consult Nessa, who appeared to be Padruig’s nearest relative. The course taken by Aleck would appear to be proper.

Other circumstances 5.91 There are no other circumstances in which MHA 1983 requires that the nearest relative be consulted. There are, however, at least four situations in which, according to the new Code of Practice, a nearest relative might expect to be consulted. They are where: ·

consideration is being given as to whether a patient may be treated compulsorily, or whether he or she is detained in hospital or a community patient120

·

a patient is to be transferred to another hospital.121 (The old Memorandum said the nearest relative should also be consulted if a patient was to be transferred into guardianship.)122 The reasons for the proposed transfer should be explained to the nearest relative123

·

a patient is to be discharged from hospital and his or her aftercare is being planned. Subject to the patient’s views, the nearest relative, among others, may have to be involved in the planning of that aftercare124

·

a patient is to be discharged on Supervised Community Treatment. A care plan should be prepared in the light of consultation with the patient and, subject to the normal considerations of confidentiality, the nearest relative.125

Consulting other people 5.92 It is only a patient’s nearest relative whom an AMHP has a specific statutory duty to consult. The Code of Practice says, however, that it is important to recognise the value of involving other people in the decision about a patient’s possible compulsory admission to hospital. Those who might also be involved are a patient’s carer(s), and his or her friends or relatives.126 If a patient is under 18 years 120 121 122 123 124 125 126

Code of Practice, para. 24.55. Ibid., para. 30.22. This reflects the reality of Regulation 26(1)(a). (See para. 5.123.) Department of Health 1995, para. 84. Code of Practice, para. 30.17. Ibid., para. 27.12. Ibid., para. 25.17. Ibid., para. 4.66.

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of age, consideration should be given to consulting any parent of his or hers who is not the nearest relative.127 5.93 Factors to be taken into account by an AMHP in deciding whether to discuss a patient’s case with someone other than the nearest relative include: ·

whether the urgency of the case will permit such a discussion128

·

the patient’s wishes

·

the nature of the relationship between the patient and the person in question, and

·

whether there is evidence of hostility, abuse or exploitation in that relationship.129

5.94 If circumstances permit, an AMHP should also consult: ·

anyone else involved in providing mental health care or other kinds of service to the patient whose detention is in prospect130 and

·

any relevant attorney under a Lasting Power of Attorney or deputy appointed by the Court of Protection in respect of the patient.131

Defective consultation 5.95 In some cases, the consultation requirements of MHA 1983 will not have been met. This might be because: ·

the AMHP mis-identified the nearest relative,132 consulted someone that need not have been consulted and therefore failed to consult the person that should have been consulted, or

·

even though he or she correctly identified the nearest relative, the AMHP did not consult that person (whether or not he or she consulted someone else).

5.96 Where there is a defect in consultation with the nearest relative, significant problems can be caused. In many cases, those problems will be worse for an AMHP and a local social services authority than for the managers of any hospital that has detained the patient subsequently.133 5.97 It seems clear that where the application for a patient’s admission to hospital appears to be duly made, the relevant managers may act upon it, for example by 127 128 129 130 131 132 133

Ibid., para. 4.67. Ibid., para. 4.66. Ibid., para. 4.68. Ibid., para. 4.69. Ibid., para. 4.70. See Chapter 2. See, for example, Jones 2006, paras. 1–076 and 1–077.

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detaining the patient.134 If, subsequently, the managers receive information that suggests the application was defective – because, for example, the correct nearest relative was not consulted – the patient’s continued detention might be unlawful. In such circumstances, the patient might bring proceedings, first, for a writ of habeas corpus, securing his or her immediate discharge from detention, and, second, for damages for wrongful imprisonment.135 The managers might be liable to the patient in that regard, if only from the point the defect came to light. They should therefore consider what steps to take in order to regularise the position. Those steps might include: ·

informing the patient of the position (if his or her mental state is such that he or she can receive this information)

·

advising, and possibly assisting, the patient to obtain legal advice

·

invoking the MHA 1983, section 23(2)(a) power to discharge the patient from detention

·

considering whether the patient ought to be detained afresh and

·

informing the relevant AMHP and local social services authority of the position.

5.98 An AMHP and a local social services authority will not be able to avail themselves of the defence that is open to the hospital managers. Where there has been a defect in consultation with the nearest relative, they will often be liable to the patient, not only from the point that defect was discovered, but in respect of the entire period of his or her detention. They might, however, seek to avoid such liability by arguing that, in the circumstances of the case, the person who was (wrongly) consulted appeared to be the nearest relative, so that the consultation requirement was in fact fulfilled.136

Information 5.99 The nearest relative is entitled to receive various pieces of information, either (a) in his or her own right or (b) on behalf of the patient. 5.100 The nearest relative might also be able to demand sight of relevant documents, even where MHA 1983 gives him or her no specific right to do so. The principles that might apply in such circumstances are set out in paragraphs 5.140 to 5.147. 134 135 136

MHA 1983, s 6(3). See also Re S-C (Mental Patient: Habeas Corpus) [1996] 1 All ER 532, CA, per Sir Thomas Bingham at pp.542 and 543. In BB v. Cygnet Health Care and Lewisham LBC [2008] EWHC 1259 (Admin), the court ordered a patient’s release even though his condition still satisfied the criteria for detention in s3 of MHA 1983. See paras. 5.73–5.76.

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5.101 Conversely, and whatever the statutory obligation to provide information to the nearest relative, the Code of Practice suggests that there are circumstances in which it will not apply. In particular, the Code says that disclosure might not be ‘practicable’ – and need not, therefore, be made – if (a) it would have a detrimental impact upon the patient and (b) that impact is disproportionate to any advantage gained from informing the nearest relative. This, the Code says, would be a breach of the patient’s right to respect for his or her private life, which is guaranteed by Article 8 of the European Court of Human Rights.137 This suggestion plainly derives from the case of E, in which impracticability was permitted as a reason for failing to consult a nearest relative about the patient’s proposed admission for treatment.138 5.102 The risk is greatest, we are told, where the nearest relative is someone whom the patient would not have chosen. To guard against the risk, anyone who might disclose information to the nearest relative must first consider whether it would be likely to: ·

put the patient at risk of physical harm or financial or other exploitation

·

cause the patient emotional distress or lead to a deterioration in his or her mental health or

·

have any other detrimental effect on his or her health or well-being, and if so, whether the advantages to the patient and the public interest of the disclosure outweigh the disadvantages to the patient, in the light of all the circumstances of the case.139

The nearest relative in his or her own right 5.103 Under MHA 1983, the nearest relative has certain rights of his or her own to be given information about the course taken with a patient. It will be noted that these rights do not apply where a patient has been admitted to hospital informally140 or is subject to guardianship. ADMISSION FOR ASSESSMENT

5.104 The nearest relative must be informed of a patient’s admission under section 2 (or section 4) of MHA 1983141 (although, as indicated, he or she has no right to object to such an admission). 137 138 139 140 141

Code of Practice, para. 2.32. R (E) v. Bristol City Council [2005] EWHC 74 (Admin). See paras. 1.25–1.30. Code of Practice, para. 2.33. But see para. 5.139. MHA 1983, s 11(3).

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5.105 Responsibility for ensuring that this information is provided will rest with the AMHP who made – or that proposes to make – the relevant application. It will be his or her personal responsibility, although, ultimately, he or she might choose to discharge it – and the information may be relayed – via an intermediary.142 5.106 The duty of the AMHP is not an absolute one, however, and is merely to ‘take such steps as are practicable’ to provide information to the nearest relative. Although there is no specific authority on the point, use of the word ‘practicable’ suggests that similar factors apply to this duty as to the duty of consultation prior to the making of a section 3 application.143 5.107 In fact, according to the Act, the information must be provided, not to the nearest relative, but to the person appearing to be the nearest relative. As has been discussed, this is not the same thing.144 Indeed, it has been held not to invalidate a patient’s admission under section 2 of MHA 1983 to give the relevant information to someone who, though the AMHP genuinely believed him or her to be so, was not the patient’s nearest relative.145 5.108 In any case, the information need only be provided ‘before or within a reasonable time after the application’. Thus, this is not the same as any right to be consulted before – and even to veto – an application for a patient’s admission under section 3 of MHA 1983.146 5.109 It has been suggested that information provided to the nearest relative more than 24 hours after a patient’s detention would not have been provided ‘within a reasonable time’.147 Much, however, will depend on the circumstances and it is perhaps unwise to be too prescriptive. 5.110 Where, having begun pursuant to section 4 of MHA 1983, a patient’s detention continues under section 2, it is likely that the obligation of the relevant AMHP will be two-fold, and that he or she will have to provide information to the nearest relative on both occasions. (It might, perhaps, be argued that it would be ‘reasonable’ in those circumstances for the AMHP to postpone the giving of the information until the patient was detained substantively under section 2. If no such substantive detention took place, however, and the 72 hours of the patient’s section 4 detention expired without such information having been given to the nearest relative, it is likely that the AMHP would have failed in his or her duty under section 11(3) of MHA 1983.) 142 143 144 145 146 147

R v. South Western Hospital Managers, ex parte M [1994] 1 All ER 161. See paras. 5.59–5.70. See paras. 5.73–5.76. R v. Birmingham Mental Health Trust, ex parte Phillips, CO/1501/95, Tucker J, 25 May 1995. MHA 1983, s 11(4). See paras. 5.84–5.88. Jones 2006, para. 1–121.

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5.111 There is nothing in MHA 1983 to require that the relevant information be in writing, and it is likely that the AMHP may provide it to the nearest relative verbally. 5.112 As well as giving information of a patient’s admission under section 2 of MHA 1983, the AMHP must also inform the nearest relative of his or her right, under section 23(2)(a) of MHA 1983, to order the patient’s discharge from detention. Example 90 Yesterday, Pierce was detained in hospital under section 2 of MHA 1983. His nearest relative is Nina. The AMHP, Aldo, approached Nina before making the detention application but was unable to speak to her.At Aldo’s request,another AMHP, Amir, goes to see Nina. He tells her only that Pierce has been detained for assessment. It is likely that Aldo’s statutory duty is unfulfilled, not because it was performed after Pierce was detained or through an intermediary (both of which are acceptable),but because the intermediary failed to give Nina a crucial piece of information:that she has the right to discharge Pierce from detention. Example 91 If,before attempting to speak to Nina,Aldo had concluded that it would breach Pierce’s rights under Article 8 of ECHR to tell her of his detention, Aldo might be relieved of that obligation on grounds of impracticability. DISCHARGE

5.113 A patient who is subject to MHA 1983 may be discharged by the nearest relative,148 but also by ·

his or her Responsible Clinician (RC)149

·

the managers of the hospital (if he or she is liable to be detained or a community patient)150

·

the relevant local authority (if he or she is subject to guardianship)151 or

·

a MHRT.152

5.114 Where a patient is to be discharged otherwise than by his or her nearest relative, the managers must ‘take such steps as are practicable’ to inform the 148 149 150 151 152

See paras. 6.2–6.19. MHA 1983, s 23(2)(a) or (b). See Jones 2006, paras. 1–257 to 1–266; Code of Practice, Chapter 31. MHA 1983, s 23(2)(a) and (c). MHA 1983, s 23(2)(b). MHA 1983, s 72.

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nearest relative of the patient’s discharge.153 That is so, whether, following discharge, the patient will no longer be subject to MHA 1983,154 or whether he or she is to become, or to cease to be, a community patient.155 5.115 Although there is no specific authority on the point, use of the word ‘practicable’ suggests that similar factors apply to this duty as apply to the duty of consultation prior to the making of a section 3 application.156 5.116 In fact, according to the Act, consultation must be with, not the nearest relative, but the person appearing to be the nearest relative. As has been indicated, this is not necessarily the same thing.157 5.117 Such information shall, ‘if practicable’, be given at least seven days before the date of discharge.158 5.118 This obligation does not, however, apply if either the patient or the nearest relative has informed the managers that such information should not be given.159 Therefore, it would seem that the patient has an absolute veto on news of his or her discharge being given to the nearest relative. Example 92 Pablo is detained in Erewhon Hospital under section 3 of MHA 1983. When his RC decides to place Pablo onto a Community Treatment Order (so that he will become a community patient), the managers of Erewhon Hospital will have to take practicable steps to inform Pablo’s nearest relative that he is to be discharged. The managers might, however, be relieved of this duty, either if they conclude that it would breach Pablo’s Article 8 rights to inform the nearest relative of his discharge, or if Pablo himself has indicated that he does not wish his nearest relative to be so informed.

5.119 It is good practice for the information given to the nearest relative to include details of any care the patient will receive once he or she has left hospital. 5.120 In addition, the Code of Practice suggests that if a patient goes absent without leave (AWOL), it might be necessary in some circumstances to inform the nearest relative that he or she has done so.160 It seems, however, that it will only be

153 154 155 156 157 158 159 160

MHA 1983, s 133(1). See Appendix 1. See also Code of Practice, para. 2.29. MHA 1983, s 133(1). MHA 1983, s 133(1A) and (1B). See paras. 5.59–5.70. See paras. 5.73–5.76. MHA 1983, s 133(1). MHA 1983, s 133(2). Code of Practice, para. 22.11.

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necessary to give such information once the patient has been AWOL for ‘more than a few hours’.161 GUARDIANSHIP

5.121 The nearest relative has the right to receive certain information about a patient who has been made subject to guardianship.162 The responsible local social services authority must take such steps as are reasonably practicable to inform him or her in writing163 of his or her right: ·

to make application to the MHRT164 and

·

to discharge the patient from detention.165

5.122 In this connection, it should be borne in mind that: ·

the patient has no veto on the giving of this information

·

use of the word ‘practicable’ suggests that similar factors apply to this duty as apply to the duty of consultation prior to the making of a section 3 application166 and

·

consultation must be with, not the nearest relative, but the person appearing to be the nearest relative. As has been indicated, this is not necessarily the same thing.167

Example 93 Patience has been placed under the guardianship of Erewhon City Council, which will have to take practicable steps to inform her nearest relative, Noelle, of that fact. The council will only be relieved of the duty if it would breach Patience’s Article 8 rights to comply with it. The duty will continue to apply, even if Patience herself has indicated that she does not wish Noelle to know that she is subject to guardianship. OTHER INFORMATION

5.123 Detention. In the case of a patient who is liable to be detained in hospital or a community patient, the Regulations require the relevant managers to take such steps as are reasonably practicable to inform the person appearing to be the patient’s nearest relative of certain events. 161 162 163 164 165 166 167

Ibid., para. 22.18. Regulations, reg 26(3) and (4). This was not the case before these regulations were introduced. Ibid., reg 26(6). (The information may be communicated electronically.) MHA 1983, ss 66 and 69. See paras. 6.44 et seq. MHA 1983, s 23. See paras. 6.2–6.19. See paras. 5.59–5.70. See paras. 5.73–5.76.

ADMISSION AND THE NEAREST RELATIVE

168 169 170 171 172 173

129

·

Transfer. When the patient has been or is to be transferred from one hospital to another under section 19 or section 123 of MHA 1983, the nearest relative must be informed of the transfer before it takes place or as soon as practicable thereafter.168

·

Renewal. When the patient’s detention is renewed under section 20 of MHA 1983, the nearest relative must be informed of the renewal as soon as practicable following the decision not to discharge the patient.169

·

Renewal (after AWOL). When, a patient having been taken into custody or having returned to hospital after more than 28 days, his or her detention is renewed under section 21B(7) of MHA 1983, the nearest relative must be informed of the renewal as soon as practicable following the decision not to discharge the patient.170

·

Renewal (after AWOL). When, a patient having been taken into custody or having returned to hospital after more than 28 days, his or her detention is renewed retrospectively under section 21B(5) and (6) of MHA 1983, the nearest relative must be informed of the renewal immediately the relevant report is received.171

·

Renewal of CTO. When a patient’s period of community treatment is extended under section 20A of MHA 1983, the nearest relative must be informed of that extension as soon as practicable following the decision not to discharge the patient.172

·

Renewal of CTO (after AWOL). When, a patient having been taken into custody under section 21B(7A) of MHA 1983 or having returned to hospital after more than 28 days, his or her period of community treatment is extended under section 21B(2) of the Act, the nearest relative must be informed of that extension as soon as practicable following the decision not to discharge the patient.173

·

Retrospective renewal of CTO (after AWOL). When, a patient having been taken into custody under section 21B(6A) and (6B) of MHA 1983 or having returned to hospital after more than 28 days, his or her period of community treatment is extended retrospectively under section 21B(2) of the Act, the nearest relative must be informed of the extension as soon as practicable after the relevant

Regulations, reg 26(1)(a). See Code of Practice, paras. 30.17 and 30.22. See also para. 5.91. Ibid., reg 26(1)(b). Ibid., reg 26(1)(c). Ibid., reg 26(1)(d). Ibid., reg 26(1)(e). Ibid., reg 26(1)(f).

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report is received.174 (Such information must also be given to the patient.) ·

CTO assigned to another hospital. When a patient has been or is to be assigned to another hospital as a community patient, the nearest relative must be informed of the assignment before or as soon as practicable after it takes place.175

5.124 Guardianship. In the case of guardianship, the Regulations require the relevant local social services agency to take such steps as are reasonably practicable to give certain information to the person appearing to be the patient’s nearest relative.

174 175 176 177 178 179 180 181

·

Transfer. When, under section 19 of MHA 1983, a patient has been or is to be transferred (a) from hospital to guardianship or (b) from the guardianship of one person to that of another person, the nearest relative must be informed of the transfer before it takes place or as soon as practicable afterwards.176

·

Vesting or transfer. When a patient’s guardianship becomes vested in a local social services authority or, because the guardian is incapable, is transferred (either to that authority or to someone it has approved) under section 10 of MHA 1983, the nearest relative must be informed of the vesting or transfer before it takes place or as soon as practicable thereafter.177

·

Renewal. When a patient’s guardianship is renewed under section 20 of MHA 1983, the nearest relative must be informed of the renewal as soon as practicable following the decision not to discharge the patient.178 (Such information must also be given to any private guardian there might be.)179

·

Renewal (after AWOL). When, a patient having been taken into custody or having returned to hospital after more than 28 days, his or her guardianship is renewed under section 21B(7) of MHA 1983, the nearest relative must be informed about the renewal as soon as practicable following the decision not to discharge the patient.180 (Such information must also be given to any private guardian there might be.)181

Ibid., reg 26(1)(g). Ibid., reg 26(1)(h). See Code of Practice, para. 30.26. Ibid., reg 26(1)(i) and (j). Ibid., reg 26(1)(k). Ibid., reg 26(1)(l). Ibid., reg 26(2). Ibid., reg 26(1)(m). Ibid., reg 26(2).

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131

Retrospective renewal (after AWOL). When, a patient having been taken into custody under section 21B(5) and (6) of MHA 1983 or having returned to hospital after more than 28 days, his or her guardianship is renewed retrospectively under section 21B(2) of the Act, the nearest relative must be informed of the renewal as soon as practicable after the receipt of the relevant report.182 (Such information must also be given to the patient and to any private guardian there might be.)183

5.125 The information referred to above must be given in writing (although it may be communicated electronically).184 5.126 The information must be given unless the patient requests otherwise.185 Once again, therefore, it would seem that the patient has an absolute veto on this information being given to his or her nearest relative. Furthermore: ·

use of the word ‘practicable’ suggests that similar factors apply to this duty as to the duty of consultation prior to the making of a section 3 application,186 and

·

consultation must be with, not the nearest relative, but the person appearing to be the nearest relative. As has been indicated, this is not necessarily the same thing.187

The nearest relative on behalf of the patient 5.127 In addition – and, crucially, subject to the wishes of the patient – a nearest relative has the right to be furnished with certain information that is provided to the patient. That will be so, whether the patient is liable to be detained or a community patient. DETAINED PATIENTS

5.128 In the case of a detained patient, his or her nearest relative has the right to be furnished with a copy of any of the following information that is supplied to him or her:188

182 183 184 185 186 187 188

Ibid., reg 26(1)(n). Ibid., reg 26(2). Ibid., reg 26(6) and (8). Ibid., reg 26(1). See paras. 5.59–5.70. See paras. 5.73–5.76. MHA 1983, s 132(4).

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under which provisions of MHA 1983 the patient is currently detained and the effect of those provisions upon him or her189

·

what rights of applying to a MHRT are available to the patient in respect of his or her detention190

·

the effect of the power, in section 23 of MHA 1983, to discharge a patient (including the power possessed by his or her nearest relative)191

·

the effect of the RC’s power, in section 25 of MHA 1983, to bar a discharge ordered by the nearest relative, and of the nearest relative’s corresponding right to apply to the MHRT under section 66(1)(g) 192

·

the effect of the consent to treatment provisions in Part IV of MHA 1983193

·

the implications for the patient of the provisions in the MHA 1983 Code of Practice194

·

the effect of the provisions, in section 120 of MHA 1983, dealing with the investigation of complaints by or in respect of detained patients195

·

the effect of the provisions, in section 134 of MHA 1983, concerning the correspondence of detained patients196

·

the help that is available to the patient from an IMHA and how he or she can obtain it.197

5.129 It should be noted that the right of the nearest relative to be given copies of this information is ancillary to that of the patient to receive it in the first place. If the information is never supplied to the patient, it need not be supplied to his or her nearest relative. 5.130 Responsibility for ensuring that this information is provided will rest with the managers of the hospital in which the patient is detained. They will not, however, be under an absolute obligation to make sure the information is supplied to the nearest relative and need only take such steps as are reasonable in

189 190 191 192 193 194 195 196 197

MHA 1983, s 132(1)(a). See Appendix 1. MHA 1983, s 132(1)(b). MHA 1983, s 132(2). Ibid. Ibid. MHA 1983, s 132(2). Ibid. Ibid. MHA 1983, s 130D(1) and (5).

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that regard. The person to whom the information must be supplied is the person ‘appearing to be’ the nearest relative.198 5.131 The right of the nearest relative to receive this information is contingent upon the patient’s consent. If and so far as the patient objects, the information must not be given to the nearest relative.199 Therefore, and again, it would seem that the patient has an absolute veto, which he or she may use to prevent the giving of this information to the nearest relative. In order that a patient might use this veto, he or she should be told that the written information will also be supplied to the nearest relative.200 5.132 If the patient does not object, copies of the written information given to him or her must be given to the nearest relative at the same time or within a reasonable time thereafter.201 (It is, of course, the case that the relevant information must be given to the patient ‘as soon as practicable after the commencement’ of his or her detention.)202 5.133 Once again, it will be noted that these rights do not apply where a patient has been admitted to hospital informally.203 Nor do they apply where a patient is subject to guardianship. COMMUNITY PATIENTS

5.134 In the case of a community patient, his or her nearest relative has the right to be furnished with a copy of any of the following information that is supplied to the patient:204 ·

the effect of MHA 1983 as it applies to community patients205 and

·

what rights of applying to a MHRT are available to the patient.206

5.135 Again, it should be noted that the right of the nearest relative to be given copies of this information is ancillary to that of the patient to receive it in the first place. If the information is never supplied to the patient, it need not be supplied to his or her nearest relative. 5.136 Responsibility for ensuring that this information is provided will rest with the managers of the hospital that is responsible for the community patient. They will not, however, be under an absolute obligation to ensure the information is 198 199 200 201 202 203 204 205 206

MHA 1983, s 132(4). See paras. 5.73–5.76. MHA 1983, ss 132(4) and 130(D)(5). Code of Practice, para. 2.28. MHA 1983, ss 132(4) and 130(D)(5) and (6). MHA 1983, s 132(1) and (2). See also Code of Practice, para. 2.27. But see para. 5.139. MHA 1983, s 132A(3). MHA 1983, s 132A(1)(a). MHA 1983, s 132A(1)(b).

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supplied to the nearest relative and need only take such steps as are reasonable in that regard. The person to whom the information must be supplied is the person ‘appearing to be’ the nearest relative.207 5.137 The right of the nearest relative to receive this information is contingent upon the community patient’s consent. If and so far as the patient objects, the information must not be given to the nearest relative.208 Therefore, and again, it would seem that the patient has an absolute veto, which he or she may use to prevent the giving of this information to the nearest relative. In order that a patient might use this veto, he or she should be told that the written information will also be supplied to the nearest relative.209 5.138 If the community patient does not object, copies of the written information given to him or her must be given to the nearest relative at the same time or within a reasonable time thereafter.210 (It is, of course, the case that the relevant information must be given to the community patient as soon as practicable after he or she becomes a community patient.)211

Informal patients 5.139 In the case of an informal hospital patient, and especially one who has become so after a period of detention under MHA 1983, it seems that his or her nearest relative, together with the patient him- or herself, should be told in writing that if he or she insists on leaving, the patient will be free to do so.212

The Data Protection Act 1998 5.140 These are all specific rights to information. Where they do not apply, however, it is possible that a nearest relative will be able to use the more general rights contained in the Data Protection Act 1998 (DPA 1998) and that those rights will enable him or her to obtain information in circumstances not envisaged in MHA 1983. 5.141 For the purposes of DPA 1998, information about a patient, his or her medical condition, social circumstances and (if appropriate) detention status is likely to be both ‘personal data’ and ‘sensitive personal data’.213 That is because it

207 208 209 210 211 212 213

MHA 1983, s 132A(3). See paras. 5.73–5.76. MHA 1983, s 132A(3). Code of Practice, para. 2.28. Ibid. See also Code of Practice, para. 2.27. MHA 1983, 132A(3) and (2). Department of Health and Social Security, Circular DS 89/75 (7 March 1975). See Jones 2006, para. 1–1179. DPA 1998, s 2(e).

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135

relates to his or her ‘physical or mental health or condition’. The processing of such data – by, for example, disclosing it to another person (such as the nearest relative) or another body – is permissible where it is necessary: ·

in order to protect the vital interests of the data subject (or another person), where he or she cannot give consent to disclosure and no such consent can be given on his or her behalf 214

·

for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings)

·

for the purpose of obtaining legal advice

·

for the purposes of establishing, exercising or defending legal rights215

·

for the administration of justice, or for the exercise of any functions conferred on any person by or under an enactment.216

5.142 On its own, however, DPA 1998 might be of little assistance to a nearest relative, for although it permits the disclosure of information in these circumstances, it does not require such a course.217 It would seem to add little or nothing to the specific rights contained in MHA 1983. 5.143 When deciding whether to grant disclosure to the nearest relative in circumstances not covered by MHA 1983, a public authority (such as a NHS body, a social services authority or an AMHP) will therefore have to: ·

consider its obligations, both under the common law and under the Human Rights Act 1998, and

·

strike a balance between the public and private interests in maintaining the confidentiality of the information in question and the public and private interests in permitting its disclosure.218

The common law 5.144 Health care and social care practitioners owe a duty of confidence to those for whom they care. Although the nature and extent of that duty are beyond the scope of this book, several basic principles may be set out.219 ·

214 215 216 217 218 219

Even though a particular relationship – such as that between a doctor, nurse or social worker and a MHA 1983 patient – might

DPA 1998, Schedule 3, para. 3. DPA 1998, Schedule 3, para. 6. DPA 1998, Schedule 3, para. 7. See, for example, R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [27]. Ibid., per Hale LJ at [32]. Ibid., per Hale LJ at [33]–[51].

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give rise to a duty of confidence, that duty does not cover all the information produced or discovered in the course of the relationship. Among the information that might not be confidential are straightforward descriptions of everyday life.220 ·

Even though the duty of confidence might apply, information that it covers may be disclosed for the purposes for which it was brought into existence. So, for example, medical recommendations provided in support of an application under MHA 1983 will have to be disclosed to the AMHP that is to make that application. Without such disclosure, the AMHP would be unable to perform his or her statutory function. There might be circumstances in which, in seeking disclosure not specifically permitted by MHA 1983, a nearest relative might make a similar claim.221

·

Even where it exists, a duty of confidence will be over-ridden where there is a strong public interest in disclosure.222 This is so, even where a patient (for example) is capable and refuses to consent to such disclosure.223

The European Convention on Human Rights 5.145 The principles underlying the common law duty of confidence are reinforced by the European Convention on Human Rights (ECHR), and in particular, by Article 6 of the ECHR (the right to a fair trial) and Article 8 (the right to respect for private and family life). 5.146 It is worth noting, however, that these ECHR provisions are not allembracing.224

220 221 222 223 224 225

·

Although Article 6 is absolute, it has been held that the elements of a fair trial are not, and that limitations may be imposed upon them if there is a clear and proper public objective for doing so, and if those limitations are no greater than the situation demands.225

·

Disclosure might breach Article 8 and still be lawful, provided it is: (a) in accordance with (domestic) law; (b) necessary for one of a number of purposes (such as the protection either of health or

Ibid., per Hale LJ at [33]. Ibid., per Hale LJ at [34]. See also W v. Egdell [1990] Ch. 359, per Bingham LJ at 419c. R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [35]. See also W v. Egdell [1990] Ch. 359, per Bingham LJ at 419e. R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [49]. See also W v. Egdell [1990] Ch. 359. R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [37]. Brown v. Stott [2001] 2 WLR 817 at p.836.

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morals, or of the rights and freedoms of others); and (c) proportionate to the end it sought to achieve. ·

In fact, Article 8 might actually require disclosure, because a family member (including one who is a nearest relative) has a right to be involved in the decision-making process.226

5.147 It is likely, therefore, that a nearest relative to whom MHA 1983 does not give a specific right in that regard may still claim disclosure of documents that are necessary if he or she is properly to exercise his or her rights and discharge his or her functions, whether under that Act or under other, analogous provisions.

226

R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [46]. See also W v. United Kingdom (1977) 10 EHRR 29; McMichael v. United Kingdom (1995) 20 EHRR 205; TP and KM v. United Kingdom [2001] 2 FCR 289.

CHAPTER 6

Discharge and the Nearest Relative This chapter discusses the circumstances in which a nearest relative might bring about a patient’s discharge from detention.

Introduction 6.1 In the case of a patient who is subject to the Mental Health Act 1983 (MHA 1983), there are circumstances in which the nearest relative may: ·

discharge the patient him- or herself or

·

make an application to the Mental Health Review Tribunal (MHRT) in his or her own right.

The nearest relative’s own power of discharge 6.2 The nearest relative has the power to make an order, discharging a patient who is liable to be a detained in hospital, a community patient or subject to guardianship under MHA 1983.1 Where the patient is a ward of court, the nearest relative may only exercise his or her power of discharge with the permission of the court.2 A patient who is discharged by his nearest relative will no longer be liable to be detained, a community patient or subject to guardianship. 6.3 A similar power of discharge is possessed by (a) the patient’s Responsible Clinician (RC),3 (b) the managers, where the patient is detained in hospital4 or a community patient,5 and (c) the relevant local social services authority, where the 1

2 3 4 5

MHA 1983, s 23(1), (1A) and (2). See Appendix 1. See also Jones 2006, paras. 1–257 to 1–266; Department of Health 2008, Mental Health Act 1983: Code of Practice [‘Code of Practice’], paras. 29.18 to 29.23. MHA 1983, s 33(2). MHA 1983, s 23(1), (1A) and (2). MHA 1983, s 23(1) and (2)(a). MHA 1983, s 23(1), (1A) and (2)(c).

139

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patient is subject to guardianship.6 The discharge power of each person or body may be exercised without reference to the others. 6.4 The discharge power applies in relation to a patient detained under section 2 or section 3 (or even section 4) of MHA 1983. A nearest relative may not, however, discharge a patient who is the subject of a hospital order or guardianship order made by a court under section 37.7 (In such circumstances, the nearest relative’s right is simply to apply to the MHRT.)8 6.5 Where a patient is in hospital, not under MHA 1983, but informally, the person that would be his or her nearest relative has no power to discharge him or her. That is so whether the patient is capable or incapable of discharging him- or herself (although more a matter of concern in the latter case than in the former).

Discharge by the nearest relative 6.6 The nearest relative may make an order for discharge at any time while the patient is liable to be detained, a community patient or subject to guardianship. The discharge order must be in writing, but there is nothing in MHA 1983 to specify the form it must take or, indeed, the grounds upon which it might be made.9 DETAINED PATIENTS AND COMMUNITY PATIENTS

6.7 Detained patients and community patients. Where a discharge order is made in respect of a patient who is detained in hospital or a community patient, he or she will be discharged 72 hours after notice of the order was served. (That will not be the case, however, and the patient will remain liable to be detained, if, within the 72-hour period, the patient’s RC makes a ‘barring report’.)10 6.8 Patients subject to guardianship. Where a discharge order is made in respect of a patient who is subject to guardianship, it will take effect immediately it is served and the patient will be discharged straight away. 6.9 In fact, the Code of Practice suggests that if he or she wishes to utilise the power of discharge, a nearest relative must serve two things: (a) the discharge order itself and (b), 72 hours beforehand, notice that such an order is to be made. The Code also states, however: ‘In practice, hospital managers should treat a discharge order

6 7 8 9 10

MHA 1983, s 23(1) and (2)(b). MHA 1983, Schedule 1, Part I, paras. 2 and 8(b). See paras. 6.44–6.47. R (Wirral Health Authority and Wirral Borough Council) v. Dr Finnegan and DE [2001] EWHC 312 (Admin). See also Code of Practice, para. 29.22. See paras. 6.24–6.31.

given without prior notice as being both notice of intention to discharge the patient after 72 hours and the actual order to do so.’11 Example 94 Nadine is the nearest relative of Penn, who is detained in Erewhon Hospital under section 3 of MHA 1983.At midday on Friday,Nadine makes (and properly serves) an order discharging Penn, who will cease to be liable to be detained at midday on the following Monday.

6.10 There is no form upon which an order for discharge by the nearest relative must be made.12 The Code of Practice, however, sets out an ‘illustrative standard letter’ that might be used for that purpose.13 6.11 The Code of Practice also suggests that the managers of a hospital should offer a nearest relative any help he or she requires to make an order for discharge (and that they might even provide him or her with a standard letter to complete).14 6.12 An order for discharge by the nearest relative must be served upon: ·

the managers, if the patient is liable to be detained in hospital15 or a community patient,16 or

·

the responsible local social services authority, if the patient is subject to guardianship.17

6.13 Where the order for a patient’s discharge is to be served upon the hospital managers, this might be achieved by:

11 12 13 14 15 16 17 18 19

·

delivering it at the hospital to an officer whom the managers have authorised to receive it18

·

sending it to them at the hospital by pre-paid post19 or

Code of Practice, para. 29.22. Statutory forms 34 and 35, which, although not mandatory, were provided by regulation 15 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983, are no longer in use. Code of Practice, para. 29.23. Ibid. Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 [‘Regulations’], SI 2008 No 1184, reg 3(3)(a). Ibid., reg 3(4)(a). Ibid., reg 3(1). Ibid., regs 3(3)(b)(i) and 3(4)(b)(i). Ibid., regs 3(3)(b)(ii) and 3(4)(b)(ii).

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delivering it using an internal-mail system operated by them (provided they agree to receive it by such means).20

6.14 Where a patient is detained in hospital, or where he or she is a community patient (for whom there will therefore be a ‘responsible hospital’), the managers will be: ·

in the case of a NHS hospital, the body in which that hospital is vested. This might be a NHS primary care trust, a hospital trust, a care trust, a NHS foundation trust, a strategic health authority, a health authority or a special health authority

·

where (in Wales) the hospital is vested in a local health board, the board, or

·

where the hospital is registered under the Care Standards Act 2000, the person(s), body or bodies registered in respect of it.21

6.15 The old Memorandum said: all hospitals in which patients are detained should have suitable arrangements for opening post, whether delivered by hand or by the Post Office, at weekends and during holidays. As soon as the notice [of discharge] is received, the time of receipt should be recorded and the [RMO] should be informed.22

The Memorandum also suggested that the managers should ensure that suitable persons were authorised to receive documents, such as a notice from the nearest relative, discharging a patient from detention.23 (The authorisation given to such persons need not be in writing.)24 6.16 In one case, the High Court held that a discharge order had not been properly served by a nearest relative where it had simply been handed to a ward receptionist, who was not authorised to receive such a document on behalf of the managers. The court held that the order had in fact been received by the managers several days later, when it first came into the hands of the Mental Health Act administrator, and that a failure to provide a barring certificate in the interim would not prevent the patient’s Responsible Medical Officer (for which read Responsible Clinician) from doing so at that point.25 6.17 Where the order is for a patient’s discharge from guardianship, it may be served:

20 21 22 23 24 25

Ibid., regs 3(3)(b)(iii) and 3(4)(b)(iii). MHA 1983, s 145(1). Department of Health 1995, para. 105. Ibid., para. 59. Regulations, reg 3(3). Re G K (Patient: Habeas Corpus) [1999] MHLR 128.

DISCHARGE AND THE NEAREST RELATIVE

143

·

by delivering it to the relevant local authority (or private guardian), or to any person authorised by that authority (or private guardian) to receive it26

·

by sending it by pre-paid post addressed to the authority at its registered or principal office,27 (or, where there is a private guardian, to that person at his or her usual or last known residence)28 or

·

by delivering it using an internal mail system operated by the authority or private guardian (if it, he or she agrees to receive the order by these means).29

6.18 Where a patient is subject to guardianship, the relevant local authority will be: ·

the local social services authority that is his or her guardian30 or

·

if he or she has a private guardian, the local social services authority for the area in which the private guardian resides.31

6.19 The following rules about service are relevant in the case of a discharge order made by the nearest relative: ·

If it is sent by pre-paid First Class post, it will be deemed to have been served on the second business day following the day of posting32

·

If it is sent by pre-paid Second Class post, it will be deemed to have been served on the fourth business day following posting. 33

·

If it is delivered using an internal mail system, it will be deemed to have been served immediately it was delivered into the internal mail system.34

Advising the nearest relative 6.20 If a nearest relative requires expert advice as to whether to make an order for discharge, he or she may appoint a registered medical practitioner or approved clinician to provide it. If so appointed, that practitioner or clinician may (a) visit the patient, (b) examine him or her in private and (c) require the production of, or

26 27 28 29 30 31 32 33 34

Regulations, reg 3(1)(a) and (b). Ibid., reg 3(1)(c)(i). Ibid., reg 3(1)(c)(ii). Ibid., reg 3(1)(d). MHA 1983, s 34(3)(a). MHA 1983, s 34(3)(b). Regulations, reg 3(6)(a). Ibid., reg 3(6)(b). Ibid., reg 3(7).

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inspect, any records relating to his or her detention or treatment, or to the aftercare services provided to him or her under section 117.35 6.21 The nearest relative who is considering making an order for discharge would do well to seek such advice. The Court of Appeal has said: Any sensible nearest relative who was unhappy about the decisions made by the professionals would wish to seek such advice rather than rush to discharge the patient, thus placing at possible risk not only the patient’s welfare but also [his or] her own status as nearest relative.36

6.22 In the context of guardianship, however, there are two ‘obvious gaps’ in the powers of the independent adviser. ·

They only enable a doctor to visit the patient and examine his or her records, whereas in guardianship cases it is often a social worker who is best placed to undertake those tasks.

·

They provide for the disclosure only of hospital and aftercare records, and give no right to examine social services records.37

6.23 These deficiencies, and what it saw as the need to rectify them, persuaded the Court of Appeal to grant general disclosure to the nearest relative of a patient who was subject to guardianship.38

Barring discharge by the nearest relative 6.24 In response to a nearest relative’s order for discharge, the patient’s Responsible Clinician (RC) may furnish to the managers a report ‘certifying that in the opinion of that clinician the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself ’.39 6.25 The RC has no power to furnish a barring report in the case of a patient who is subject to guardianship. An order made by the nearest relative would therefore have the effect of discharging the patient from guardianship immediately it was served upon the responsible local authority or private guardian. 6.26 It has been said that the purpose of the barring report is: to ensure that the mere desire of, in particular, a closest relative to have a patient out does not defeat the purpose of the Act which, both in the interests of the

35 36 37 38 39

MHA 1983, s 24(2). See Jones 2006, paras. 1–267 to 1–274. R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388, per Hale LJ at [22]. Ibid. Ibid., per Hale LJ at [40]. MHA 1983, s 25(1). See Appendix 1. See also Jones 2006, paras. 1–274 to 1–282.

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patient and the interests of the public, has ultimate regard to the patient’s mental state.40

6.27 As far as concerns ‘dangerousness’ within the meaning of MHA 1983, it has been held to connote a ‘very high level of probability that lasting psychological harm could be caused to others if the barring order were to be lifted’.41 The Code of Practice says it ‘focuses on the probability of dangerous acts, such as causing serious physical injury or lasting psychological harm, not merely on the patient’s general need for safety and others’ general need for protection’.42 6.28 Any barring report by the RC must be in Part 1 of Form M2 (and its receipt by the managers, in Part 2 of that form).43 6.29 If the RC furnishes such a report within 72 hours of the receipt by the managers of the nearest relative’s order for discharge: ·

that order will be of no effect44

·

the nearest relative may not make a further order for the patient’s discharge within a period of six months beginning with the date of his or her order45 and

·

where the patient is detained under section 3 of MHA 1983 or is a community patient, the managers must inform the nearest relative of the barring report furnished by the RC.46 (In such circumstances, the nearest relative will have the right to apply to a MHRT.47 The nearest relative of a patient detained under section 2 has no such right.)

Example 95 In example 94, Dr Russell is the RC of Penn. If he wishes to prevent Penn’s discharge taking effect, Dr Russell will be able to do so only by means of a barring report,which will have to be furnished to the managers of Erewhon Hospital by midday on Monday. If such a report is furnished, Penn will not be discharged. Furthermore,Nadine (as nearest relative) will have to be told about the report and will be unable to make a further order for Penn’s discharge within the next six months.She will,however,be able to apply to the MHRT,which may itself discharge Penn.

40 41 42 43 44 45 46 47

Gary Kinsey v. North Mersey Community NHS Trust, Divisional Court, 21 June 1999, per Sedley LJ. Re Whitbread [1999] COD 370. See further Jones 2006, para. 1–277. Code of Practice, para. 29.21. Regulations, reg 25(1). MHA 1983, s 25(1)(a). MHA 1983, s 25(1)(b). MHA 1983, s 25(2). See paras. 6.37 et seq.

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6.30 It is not clear precisely when a nearest relative who wishes to discharge a patient, either from liability to detention or from being a community patient, is deemed to have made his or her order to that effect.48 However, the following is the likeliest (and possibly the most appropriate) sequence. 1. When the nearest relative first delivers a written document, intimating his or her intention that the patient be discharged, he or she thereby makes an order to that effect under section 25(1) of MHA 1983. 2. The order will take effect 72 hours later, unless it is barred by a report furnished by the RC. 3. The nearest relative is at liberty to withdraw the order within that 72-hour period, at least until the RC furnishes his or her barring report. 4. If he or she does withdraw the order before discharge is barred by the RC, the order is of no effect and the nearest relative will retain the right to make a fresh order for discharge while ever the patient remains subject to MHA 1983, and even within the ensuing six months. 5. Once the RC has furnished a barring report, it is too late for the nearest relative to withdraw his or her order for discharge. Example 96 In examples 94 and 95,Nadine withdraws her order for Penn’s discharge before Dr Russell can furnish a barring report.Penn will therefore remain detained and a barring report will no longer be necessary. Nadine will, however, retain the right to make another order for Penn’s discharge (and she will be able to exercise that right at any time, including within the next six months).

6.31 Where a nearest relative wishes to withdraw an order for discharge, there is nothing in MHA 1983 to require him or her to do so in writing. Nevertheless, it would be prudent for the managers, and certainly for the nearest relative, to obtain and keep written confirmation that such an order had indeed been withdrawn.

48

See, for example, Jones 2006, para. 1–276.

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Review by the managers 6.32 Where the RC furnishes them with a barring report, the managers should consider holding a review of the patient’s detention.49 (In strict terms, there is nothing to require the managers actually to hold such a review.) 6.33 The purpose of any such review would be for the managers to decide whether to utilise their power to discharge the patient from detention under MHA 1983.50 The Code of Practice says that before the managers consider a patient’s case, whether because he or she has been discharged by the nearest relative or for another reason, they should inform the nearest relative that they are to do so. If, however, the patient is capable and objects, it would seem that such information may not be given.51 6.34 When conducting such a review, the managers must discharge the patient unless they are satisfied that all of the following criteria are met: ·

The patient is still suffering from mental disorder.

·

His or her disorder is of a nature or degree that makes treatment in hospital appropriate.

·

Detention in hospital is still necessary in the interests of the patient’s health or safety, or for the protection of other people.52

·

The patient, if discharged, would be likely to act in a manner dangerous to other persons or to him- or herself.53

6.35 As has been noted, the Code of Practice says that this last question, ‘focuses on the probability of dangerous acts, such as causing serious physical injury, [and] not merely the patient’s general need for safety and others’ general need for protection: it provides a more stringent test for continuing detention’.54 If the managers fail to pose the question and decide not to discharge the patient, their decision will be irrational and may be quashed.55 6.36 Even if the managers pose the final question, they are entitled to come to a different conclusion on the question of the patient’s ‘dangerousness’ than the RC came to. That will not, however, lead to their being required to discharge the

49 50 51 52 53 54 55

Code of Practice, para. 31.11. This power is examined in Chapter 31 of the Code of Practice. Code of Practice, para. 31.28. Ibid., paras. 31.14 et seq. R v. Riverside Mental Health Trust, ex parte Huzzey (1998) 43 BMLR 167. See also Code of Practice, para. 31.19. Code of Practice, para. 31.20. R v. Riverside Mental Health Trust, ex parte Huzzey (1998) 43 BMLR 167.

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patient, for they have a residual discretion not to order discharge, even in those circumstances.56

Mental Health Review Tribunals 6.37 The Mental Health Review Tribunal (MHRT) has the power to discharge a patient from detention or guardianship under MHA 1983.57 (In some circumstances, a tribunal may also make recommendations about a MHA 1983 patient’s care and treatment. That power is not, however, discussed further here.)58 6.38 A patient may him- or herself apply to the MHRT for discharge.59 6.39 There are some circumstances in which the nearest relative of a patient will also have the right to apply to a MHRT. In order for his or her nearest relative to enjoy such a right, the patient will have to be: ·

liable to be detained under sections 2, 3 or 4 of MHA 1983, or a community patient

·

subject to guardianship under section 7 or

·

the subject of a hospital order or a guardianship order made under section 37.60

6.40 Where the patient is a ward of court, his or her nearest relative may only apply to the MHRT with the permission of the court.61 6.41 Although a patient whose hospital order or guardianship order has been combined with a restriction order62 may apply to a MHRT, that patient will not, of course, have a nearest relative and the person who would otherwise have been his or her nearest relative will have no right to make a tribunal application.63 6.42 Where the right to apply to the MHRT exists in relation to a patient whose nearest relative has been displaced by the court, it will be exercisable by the acting nearest relative, not by the displaced nearest relative. In some cases, the displaced nearest relative will have the right to make one application to the MHRT in the 12 months after the date of the order displacing him or her, and, while ever the

56 57 58 59 60 61 62 63

R (SR) v. Huntercombe Maidenhead Hospital [2005] EWHC 2361 (Admin), per Jackson J at [19]. The MHRT website may be found at www.mhrt.org.uk See Jones 2006, paras. 1–755 to 1–876. See also Code of Practice, Chapter 32. Helpful guidance, together with specimen forms, may be obtained from the MHRT website. See, for example, MHA 1983, ss 66, 69 and 70. MHA 1983, s 66(1) and Sch 1, Part I, paras. 2 and 9. MHA 1983, s 33(2). Made under ss 41 or 49 of MHA 1983. MHA 1983, s 70.

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patient remains subject to MHA 1983, one further such application in each succeeding 12-month period.64 6.43 The purpose of an application to the MHRT (including one by a nearest relative) will be to secure an order discharging the patient from liability to be detained or from guardianship. A patient who is discharged at a time when he or she is a community patient will thereby cease to be a community patient.

The right to apply 6.44 The nearest relative of a patient may apply to the MHRT in the following circumstances:

64 65 66 67 68 69

·

The patient is either liable to be detained in hospital under section 3 of MHA 1983 or is a community patient, and a report is furnished to the managers by the RC under section 25 of the Act, the effect of which is to bar an order for the patient’s discharge made by the nearest relative under section 23.65

·

An order is made under section 29 of MHA 1983, effectively displacing the nearest relative of a patient, and the patient is, or subsequently comes to be, detained under MHA 1983, a community patient or made subject to guardianship. (The applicant in this case will be the acting nearest relative, not the displaced nearest relative.)66 It is not every displacement order that will convey this right, however, but only one made because the nearest relative: (a) unreasonably objected to an application for the patient to be detained for treatment or made subject to guardianship; or (b) discharged (or will discharge) the patient without due regard to his or her welfare or to the interests of the public.67

·

A patient is liable to be detained under a hospital order, or, in the case of a community patient, he or she was subject to a hospital order before becoming a community patient (provided not less than six months have elapsed since the patient became so subject).68

·

A patient is subject to a guardianship order (at any time during the currency of that order).69

MHA 1983, s 66(2)(g). MHA 1983, s 66(1)(g) and (ii). As to the nearest relative’s right to order a patient’s discharge, see paras. 6.6 et seq.; as to the RC’s power to bar such an order, see paras. 6.24 et seq. MHA 1983, s 66(1)(h) and (ii). As to the process by which a nearest relative might be displaced, see paras. 4.25 et seq. MHA 1983, s 66(1)(h). MHA 1983, s 69(1)(a). MHA 1983, s 69(1)(b).

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6.45 The fact that the nearest relative has exercised his or her right under these grounds will not affect any right the patient him- or herself has to apply to the MHRT. 6.46 Where the patient is a ward of court, the nearest relative will need the permission of the High Court to make an application to the MHRT.70 6.47 A nearest relative (or, indeed, any other person so entitled) may only make application to the MHRT at the times and in the circumstances specified in MHA 1983.71 Thus, there is no power for a nearest relative to apply to the MHRT simply because: ·

the patient has been detained under section 2 or section 3 of MHA 1983, or made a community patient or subject to guardianship

·

a patient is transferred from guardianship to hospital or

·

a patient’s liability to detention is renewed.

Time limits 6.48 Where, under section 25 of MHA 1983, the RC bars an order for discharge made by the patient’s nearest relative, any application by the nearest relative must be made to the MHRT within 28 days of the day on which he or she is informed that the relevant report has been furnished.72 6.49 Where an order is made under section 29 of MHA 1983, effectively displacing the nearest relative of a patient, and the patient is or subsequently comes to be detained under MHA 1983, an application by the (displaced) nearest relative may be made to the MHRT: ·

at any time within a period of 12 months beginning with the date of the order and

·

in any subsequent period of 12 months during which the order continues in force.73

6.50 Where a patient is the subject of a hospital order, the nearest relative may apply to the MHRT: ·

70 71 72 73

once in the first 12-month period after the order was made (but only in the second six months of that period) and

MHA 1983, s 33(2). MHA 1983, s 77(1) and (2). MHA 1983, s 66(2)(d). MHA 1983, s 66(2)(g).

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151

once in any subsequent period of 12 months during which the patient remains subject to the order.74

6.51 Where a patient is the subject of a guardianship order, the nearest relative may apply to the MHRT: ·

once in the first 12 months after the order was made and

·

once in any subsequent period of 12 months during which the patient remains subject to the order.75

Making the application 6.52 There are three MHRT offices, which cover: 1. the south of England, comprising Gloucestershire, Oxfordshire, Buckinghamshire, Hertfordshire, Essex and all counties south and south-west of them 2. the north of England, which comprises all the other counties of England, and 3. Wales. 6.53 An application to the MHRT, including one by a patient’s nearest relative, should be made as follows: ·

where the patient is liable to be detained in hospital (even if he or she is a community patient), to the MHRT office for the area in which the hospital is situated76 or

·

where the patient is subject to guardianship, to the MHRT office for the area in which he or she is residing.77

6.54 In fact, although each regional office has its own address, the address to which MHRT applications should be sent is the same in each case:78 Mental Health Review Tribunal PO Box 8793 5th Floor Leicester LE1 8BN

74 75 76 77 78

MHA 1983, s 69(1)(a). MHA 1983, s 69(1)(b)(ii). MHA 1983, s 77(3)(a) and (b). MHA 1983, s 77(3)(c). Further contact details, including fax numbers and e-mail addresses, are available at www.mhrt.org.uk/GenericPages/contactus.htm

APPENDIX 1

Statutory Extracts The Mental Health Act 1983 General provisions as to applications 11. – (1) Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment and a guardianship application may be made either by the nearest relative of the patient or by an approved mental health professional; and every such application shall specify the qualification of the applicant to make the application. (1A) No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below. (2) Every application for admission shall be addressed to the managers of the hospital to which admission is sought and every guardianship application shall be forwarded to the local social services authority named in the application as guardian, or, as the case may be, to the local social services authority for the area in which the person so named resides. (3) Before or within a reasonable time after an application for the admission of a patient for assessment is made by an approved mental health professional, that professional shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the application is to be or has been made and of the power of the nearest relative under section 23(2)(a) below. (4) An approved mental health professional may not make an application for admission for treatment or a guardianship application in respect of a patient in either of the following cases – (a) the nearest relative of the patient has notified that professional, or the local social services authority on whose behalf the professional is acting, that he objects to the application being made; or (b) that professional has not consulted the person (if any) appearing to be the nearest relative of the patient, but the requirement to consult that person does not apply if it

153

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appears to the professional that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay. (5) None of the applications mentioned in subsection (1) above shall be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending with the date of the application. 1

(6) […]

(7) Each of the applications mentioned in subsection (1) above shall be sufficient if the recommendations on which it is founded are given either as separate recommendations, each signed by a registered medical practitioner, or as a joint recommendation signed by two such practitioners.

Duty of approved mental health professionals to make applications for admission or guardianship 13. – (1) If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient’s case on their behalf. (1A) If that professional is – (a) satisfied that such an application ought to be made in respect of the patient; and (b) of the opinion, having regard to any wishes expressed by relatives of the patient or any other relevant circumstances, that it is necessary or proper for the application to be made by him, he shall make the application. (1B) Subsection (1C) below applies where – (a) a local social services authority makes arrangements under subsection (1) above in respect of a patient; (b) an application for admission for assessment is made under subsection (1A) above in respect of the patient; (c) while the patient is liable to be detained in pursuance of that application, the authority have reason to think that an application for admission for treatment may need to be made in respect of the patient; and (d) the patient is not within the area of the authority. 1

Omitted by MHA 2007, Schedule 11, Part 1.

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155

(1C) Where this subsection applies, subsection (1) above shall be construed as requiring the authority to make arrangements under that subsection in place of the authority mentioned there. (2) Before making an application for the admission of a patient to hospital an approved mental health professional shall interview the patient in a suitable manner and satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need. (3) An application under subsection (1A) above may be made outside the area of the local social services authority on whose behalf the approved mental health professional is considering the patient’s case. (4) It shall be the duty of a local social services authority, if so required by the nearest relative of a patient residing in their area, to make arrangements under subsection (1) above for an approved mental health professional to consider the patient’s case with a view to making an application for his admission to hospital; and if in any such case that professional decides not to make an application he shall inform the nearest relative of his reasons in writing. (5) Nothing in this section shall be construed as authorising or requiring an application to be made by an approved mental health professional in contravention of the provisions of section 11(4) above or of regulations under section 12A above, or as restricting the power of a local social services authority to make arrangements with an approved mental health professional to consider a patient’s case or of an approved mental health professional to make any application under this Act.

Discharge of patients 23. – (1) Subject to the provisions of this section and section 25 below, a patient who is for the time being liable to be detained or subject to guardianship under this Part of this Act shall cease to be so liable or subject if an order in writing discharging him absolutely from detention or guardianship is made in accordance with this section. (1A) Subject to the provisions of this section and section 25 below, a community patient shall cease to be liable to recall under this Part of this Act, and the application for admission for treatment cease to have effect, if an order in writing discharging him from such liability is made in accordance with this section. (1B) An order under subsection (1) or (1A) above shall be referred to in this Act as ‘an order for discharge’. (2) An order for discharge may be made in respect of a patient – (a) where the patient is liable to be detained in a hospital in pursuance of an application for admission for assessment or

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(b)

(c)

for treatment by the responsible clinician, by the managers or by the nearest relative of the patient; where the patient is subject to guardianship, by the responsible clinician, by the responsible local social services authority or by the nearest relative of the patient; where the patient is a community patient, by the responsible clinician, by the managers of the responsible hospital or by the nearest relative of the patient.

(3) Where the patient falls within subsection (3A) below, an order for his discharge may, without prejudice to subsection (2) above, be made by the Secretary of State and, if arrangements have been made in respect of the patient under a contract with a National Health Service trust, NHS foundation trust, Local Health Board, Special Health Authority or Primary Care trust, by that National Health Service trust, NHS foundation trust, Local Health Board, Special Health Authority or Primary Care trust. (3A) A patient falls within this subsection if – (a) he is liable to be detained in a registered establishment in pursuance of an application for admission for assessment or for treatment; or (b) he is a community patient and the responsible hospital is a registered establishment. (4) The powers conferred by this section on any authority, trust, board (other than an NHS foundation trust) or body of persons may be exercised subject to subsection (3) above by any three or more members of that authority, trust, board or body authorised by them in that behalf or by three or more members of a committee or sub-committee of that authority, trust, board or body which has been authorised by them in that behalf. (5) The reference in subsection (4) above to the members of an authority, trust, board or body or the members of a committee or sub-committee of an authority, trust, board or body, – (a) in the case of a Local Health Board, Special Health Authority or Primary Care trust or a committee or sub-committee of a Local Health Board, Special Health Authority or Primary Care trust, is a reference only to the chairman of the authority, trust or board and such members (of the authority, trust, board, committee or sub-committee, as the case may be) as are not also officers of the authority, trust or board, within the meaning of the National Health Service Act 2006 or the National Health Service (Wales) Act 2006; and

APPENDIX 1: STATUTORY EXTRACTS

(b)

157

in the case of a National Health Service trust or a committee or sub-committee of such a trust, is a reference only to the chairman of the trust and such directors or (in the case of a committee or sub-committee) members as are not also employees of the trust.

(6) The powers conferred by this section on any NHS foundation trust may be exercised by any three or more persons authorised by the board of the trust in that behalf each of whom is neither an executive director of the board nor an employee of the trust.

Restrictions on discharge by nearest relative 25. – (1) An order for the discharge of a patient who is liable to be detained in a hospital shall not be made under section 23 above by his nearest relative except after giving not less than 72 hours’ notice in writing to the managers of the hospital; and if, within 72 hours after such notice has been given, the responsible clinician furnishes to the managers a report certifying that in the opinion of that clinician the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself – (a) any order for the discharge of the patient made by that relative in pursuance of the notice shall be of no effect; and (b) no further order for the discharge of the patient shall be made by that relative during the period of six months beginning with the date of the report. (1A) Subsection (1) above shall apply to an order for the discharge of a community patient as it applies to an order for the discharge of a patient who is liable to be detained in a hospital, but with the reference to the managers of the hospital being read as a reference to the managers of the responsible hospital. (2) In any case where a report under subsection (1) above is furnished in respect of a patient who is liable to be detained in pursuance of an application for admission for treatment, or in respect of a community patient, the managers shall cause the nearest relative of the patient to be informed.

Definition of ‘relative’ and ‘nearest relative’ 26. – (1) In this Part of this Act ‘relative’ means any of the following persons: (a) husband or wife or civil partner; (b) son or daughter; (c) father or mother; (d) brother or sister;

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(e) (f ) (g) (h)

grandparent; grandchild; uncle or aunt; nephew or niece.

(2) In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated as a relationship of the whole blood, and an illegitimate person shall be treated as the legitimate child of (a) his mother, and (b) if his father has parental responsibility for him within the 2 meaning of section 3 of the Children Act 1989, his father. (3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the ‘nearest relative’ means the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex. (4) Subject to the provisions of this section and to the following provisions of this 3 Part of this Act, where the patient ordinarily resides with or is cared for by one or 4 more of his relatives (or, if he is for the time being an in-patient in a hospital, he last ordinarily resided with or was cared for by one or more of his relatives) his nearest relative shall be determined – (a) by giving preference to that relative or those relatives over the other or others; and (b) as between two or more such relatives, in accordance with subsection (3) above. (5) Where the person who, under subsection (3) or (4) above, would be the nearest relative of a patient – (a) in the case of a patient ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man, is not so resident; or

2 3 4

This provision is as amended by article 3 of the Children Act 1989 (Consequential Amendment of Enactments) Order 1991 – SI 1991 No 1881. A patient is ‘a person suffering or appearing to be suffering from mental disorder’ – MHA 1983, s 145(1). A hospital can be either (a) ‘any health service hospital within the meaning of the National Health Service Act 1977’ or (b) ‘any accommodation provided by a local authority and used as a hospital or on behalf of the Secretary of State’ under the Mental Health Act – MHA 1983, s 145(1). Alternatively, it might be (c) ‘an establishment […] in respect of which a person is registered under Part II of the Care Standards Act 2000 as an independent hospital in which treatment or nursing (or both) are provided for persons liable to be detained under’ the Mental Health Act – MHA 1983, s 34(1).

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159

(b)

is the husband or wife or civil partner of the patient, but is permanently separated from the patient, either by agreement or under an order of a court, or has deserted or has been deserted by the patient for a period which has not come to an end; or (c) is a person other than the husband, wife, father or mother of the patient, and is for the time being under 18 years of age the nearest relative of the patient shall be ascertained as if that person were dead. (6) In this section ‘husband’, ‘wife’ and ‘civil partner’ include a person who is living with the patient as the patient’s husband or wife or as if they were civil partners, as the case may be (or, if the patient is for the time being an in-patient in a hospital, was so living until the patient was admitted), and has been or had been so living for a period of not less than six months; but a person shall not be treated by virtue of this subsection as the nearest relative of a married patient or a patient in a civil partnership unless the husband, wife or civil partner of the patient is disregarded by virtue of paragraph (b) of subsection (5) above. (7) A person, other than a relative, with whom the patient ordinarily resides (or, if the patient is for the time being an in-patient in a hospital, last ordinarily resided before he was admitted), and with whom he has or had been ordinarily residing for a period of not less than five years, shall be treated for the purposes of this Part of this Act as if he were a relative but – (a) shall be treated for the purposes of subsection (3) above as if mentioned last in subsection (1) above; and (b) shall not be treated by virtue of this subsection as the nearest relative of a married patient or a patient in a civil partnership unless the husband, wife or civil partner of the patient is disregarded by virtue of paragraph (b) of subsection (5) above.

Children and young persons in care 27. Where – (a)

(b)

a patient who is a child or young person is in the care of a local authority by virtue of a care order within the meaning of the Children Act 1989; or – the rights and powers of a parent of a patient who is a child or young person are vested in a local authority by virtue of section 16 of the Social Work (Scotland) Act 1968,

the authority shall be deemed to be the nearest relative of the patient in preference to any person except the patient’s husband or wife or civil partner (if any).

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Nearest relative of minor under guardianship 28. – (1) Where (a)

a guardian has been appointed for a person who has not attained the age of eighteen years; or (b) a residence order (as defined by section 8 of the Children Act 1989) is in force with respect to such a person, the guardian (or guardians, where there is more than one) or the person named in the residence order shall, to the exclusion of any other person, be deemed to be his nearest relative. (2) Subsection (5) of section 26 above shall apply in relation to a person who is, or who is one of the persons, deemed to be the nearest relative of a patient by virtue of this section as it applies in relation to a person who would be the nearest relative under subsection (3) of that section. (3) In this section ‘guardian’ includes a special guardian (within the meaning of the Children Act 1989), but does not include a guardian under this Part of this Act. (4) In this section ‘court’ includes a court in Scotland or Northern Ireland, and ‘enactment’ includes an enactment of the Parliament of Northern Ireland, a Measure of the Northern Ireland Assembly and an Order in Council under Schedule 1 of the Northern Ireland Act 1974.

Appointment by court of acting nearest relative 29. – (1) The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by the person specified in the order. (1A) If the court decides to make an order on an application under subsection (1) above, the following rules have effect for the purposes of specifying a person in the order – (a) if a person is nominated in the application to act as the patient’s nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit); (b) otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient’s nearest relative and is willing to do so. (2) An order under this section may be made on the application of –

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(za) (a) (b)

(c)

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the patient; any relative of the patient; any other patient with whom the patient is residing (or, if the patient is then an in-patient in a hospital, was last residing before he was admitted); or an approved mental health professional.

(3) An application for an order under this section may be made upon any of the following grounds, that is to say – (a) that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is; (b) that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness; (c) that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient; (d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient under this Part of this Act, or is likely to do so; or (e) that the nearest relative of the patient is otherwise not a suitable person to act as such. (4) If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for admission for assessment, an application under this section, which is an application made on the ground specified in subsection (3)(c) or (d) above, is pending in respect of the patient, that period shall be extended – (a) in any case, until the application under this section has been finally disposed of; and (b) if an order is made in pursuance of the application under this section, for a further period of seven days; and for the purposes of this subsection an application under this section shall be deemed to have been finally disposed of at the expiration of the time allowed for appealing from the decision of the court or, if notice of appeal has been given within that time, when the appeal has been heard or withdrawn, and ‘pending’ shall be construed accordingly.

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(5) An order made on the ground specified in subsection (3)(a), (b) or (e) above may specify a period for which it is to continue in force unless previously discharged under section 30 below. (6) While an order made under this section is in force, the provisions of this Part of this Act (other than this section and section 30 below) and sections 66, 69, 132(4) and 133 below shall apply in relation to the patient as if for any reference to the nearest relative of the patient there were substituted a reference to the person having the functions of that relative and (without prejudice to section 30 below) shall so apply notwithstanding that the person who was the patient’s nearest relative when the order was made is no longer his nearest relative; but this subsection shall not apply to section 66 below in the case mentioned in paragraph (h) of subsection (1) of that section.

Discharge and variation of orders under s. 29 30. – (1) An order made under section 29 above in respect of a patient may be discharged by the county court upon application made – (a) in any case, by the patient or the person having the functions of the nearest relative of the patient by virtue of the order; (b) where the order was made on the ground specified in paragraph (a), (b) or (e) of section 29(3) above, or where the person who was the nearest relative of the patient when the order was made has ceased to be his nearest relative, on the application of the nearest relative of the patient. (1A) But, in the case of an order made on the ground specified in paragraph (e) of section 29(3) above, an application may not be made under subsection (1)(b) above by the person who was the nearest relative of the patient when the order was made except with leave of the county court. (2) An order made under section 29 above in respect of a patient may be varied by the county court, on the application of the person having the functions of the nearest relative by virtue of the order or on the application of the patient or of an approved mental health professional, by substituting another person for the person having those functions. (2A) If the court decides to vary an order on an application under subsection (2) above, the following rules have effect for the purpose of substituting another person – (a) if a person is nominated in the application to act as the patient’s nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);

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(b)

163

otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient’s nearest relative and is willing to do so.

(3) If the person having the functions of the nearest relative of a patient by virtue of an order under section 29 above dies – (a) subsections (1) and (2) above shall apply as if for any reference to that person there were substituted a reference to any relative of the patient, and (b) until the order is discharged or varied under those provisions the functions of the nearest relative under this Part of this Act and sections 66 and 69 below shall not be exercisable by any person. (4) An order made on the ground specified in paragraph (c) or (d) of section 29(3) above shall, unless previously discharged under subsection (1) above, cease to have effect as follows – (a) If – (i) on the date of the order the patient was liable to be detained or subject to guardianship by virtue of a relevant application, order or direction; or (ii) he becomes so liable or subject within the period of three months beginning with that date; or (iii) he was a community patient on the date of the order, it shall cease to have effect when he is discharged under section 23 above or 72 below or the relevant application, order or direction otherwise ceases to have effect (except as a result of his being transferred in pursuance of regulations under section 19 above); (b) otherwise, it shall cease to have effect at the end of the period of three months beginning with the date of the order. (4A) In subsection (4) above, reference to a relevant application, order or direction is to any of the following – (a) an application for admission for treatment; (b) a guardianship application; (c) an order or direction under Part 3 of this Act (other than under section 35, 36 or 38). (4B) An order made on the ground specified in paragraph (a), (b) or (e) of section 29(3) above shall –

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(a)

(b)

if a period was specified under section 29(5) above, cease to have effect on expiry of that period, unless previously discharged under subsection (1) above; if no period was specified, remain in force until it is discharged under subsection (1) above.

(5) The discharge or variation under this section of an order made under section 29 above shall not affect the validity of anything previously done in pursuance of the order.

Special provisions as to wards of court 33. – (1) An application for the admission to hospital of a minor who is a ward of court may be made under this Part of this Act with the leave of the court; and section 11(4) above shall not apply in relation to an application so made. (2) Where a minor who is a ward of court is liable to be detained in a hospital by virtue of an application for admission under this Part of this Act or is a community patient, any power exercisable under this Part of this Act or under section 66 below in relation to the patient by his nearest relative shall be exercisable by or with the leave of the court. (3) Nothing in this Part of this Act shall be construed as authorising the making of a guardianship application in respect of a minor who is a ward of court, or the transfer into guardianship of any such minor. (4) Where a community treatment order has been made in respect of a minor who is a ward of court, the provisions of this Part of this Act relating to community treatment orders and community patients have effect in relation to the minor subject to any order which the court makes in the exercise of its wardship jurisdiction; but this does not apply as regards any period when the minor is recalled to hospital under section 17E above.

Duty of managers of hospitals to give information to detained patients 132. – (1) The managers of a hospital or registered establishment in which a patient is detained under this Act shall take such steps as are practicable to ensure that the patient understands – (a) under which of the provisions of this Act he is for the time being detained and the effect of that provision; and (b) what rights of applying to a Mental Health Review Tribunal are available to him in respect of his detention under that provision;

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165

and those steps shall be taken as soon as practicable after the commencement of the patient’s detention under the provision in question. (2) The managers of a hospital or registered establishment in which a patient is detained as aforesaid shall also take such steps as are practicable to ensure that the 5 6 patient understands the effect, so far as relevant in his case, of sections 23, 25, 56 to 7 8 9 10 11 64, 66(1)(g), 118 and 120 above and section 134 below; and those steps shall be taken as soon as practicable after the commencement of the patient’s detention in the hospital or establishment. (3) The steps to be taken under subsections (1) and (2) above shall include giving the requisite information both orally and in writing. (4) The managers of a hospital or registered establishment in which a patient is detained as aforesaid shall, except where the patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to them to be his nearest relative with a copy of any information given to him in writing under subsections (1) and (2) above; and those steps shall be taken when the information is given to the patient or within a reasonable time thereafter.

Duty of managers of hospitals to give information to community patients 132A. – (1) The managers of the responsible hospital shall take such steps as are practicable to ensure that a community patient understands – (a) the effect of the provisions of this Act applying to community patients; and (b) what rights of applying to a Mental Health Review Tribunal are available to him in that capacity; and those steps shall be taken as soon as practicable after the patient becomes a community patient. (2) The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing. (3) The managers of the responsible hospital shall, except where the community patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to them to be his nearest relative with a copy of any information given to him in writing under subsection (1) above; and those steps shall be taken when the information is given to the patient or within a reasonable time thereafter. 5 6 7 8 9 10 11

Discharge of patients. Restrictions on discharge by nearest relative. Consent to treatment. Application to Mental Health Review Tribunal where a report is furnished under s 25. Code of Practice. General protection of detained patients. Correspondence of patients.

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Duty of managers of hospitals to inform nearest relatives of discharge 133. – (1) Where a patient liable to be detained under this Act in a hospital or registered establishment is to be discharged otherwise than by virtue of an order for discharge made by his nearest relative, the managers of the hospital or registered establishment shall, subject to subsection (2) below, take such steps as are practicable to inform the person (if any) appearing to them to be the nearest relative of the patient; and that information shall, if practicable, be given at least seven days before the date of discharge. (1A) The reference in subsection (1) above to a patient who is to be discharged includes a patient who is to be discharged from hospital under section 17A above. (1B) Subsection (1) above shall also apply in a case where a community patient is discharged under section 23 or 72 above (otherwise than by virtue of an order for discharge made by his nearest relative), but with the reference in that subsection to the managers of the hospital or registered establishment being read as a reference to the managers of the responsible hospital. (2) Subsection (1) above shall not apply if the patient or his nearest relative has requested that information about the patient’s discharge should not be given under this section. 12

Children Act 1989 Parental responsibility for children 2. – (1) Where a child’s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child. (2) Where a child’s father and mother were not married to each other at the time of his birth – (a) the mother shall have parental responsibility for the child; (b) the father shall have parental responsibility for the child if he has acquired it (and has not ceased to have it) in accordance with the provisions of this Act. (3) References in this Act to a child whose father and mother were, or (as the case may be) were not, married to each other at the time of his birth must be read with section 1 of the Family Law Reform Act 1987 (which extends their meaning). (4) The rule of law that a father is the natural guardian of his legitimate child is abolished.

12

As amended by the Adoption and Children Act 2002, s 111(1)–(5) and s 112, and by the Civil Partnership Act 2004, ss 75(1) and (2).

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167

(5) More than one person may have parental responsibility for the same child at the same time. (6) A person who has parental responsibility for a child at any time shall not cease to have that responsibility solely because some other person subsequently acquires parental responsibility for the child. (7) Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child. (8) The fact that a person has parental responsibility for a child shall not entitle him to act in any way which would be incompatible with any order made with respect to the child under this Act. (9) A person who has parental responsibility for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf. (10) The person with whom any such arrangement is made may himself be a person who already has parental responsibility for the child concerned. (11) The making of any such arrangement shall not affect any liability of the person making it which may arise from any failure to meet any part of his parental responsibility for the child concerned.

Meaning of ‘parental responsibility’ 3. – (1) In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. (2) It also includes the rights, powers and duties which a guardian of the child’s estate (appointed, before the commencement of section 5, to act generally) would have had in relation to the child and his property. (3) The rights referred to in subsection (2) include, in particular, the right of the guardian to receive or recover in his own name, for the benefit of the child, property of whatever description and wherever situated which the child is entitled to receive or recover. (4) The fact that a person has, or does not have, parental responsibility for a child shall not affect – (a) any obligation which he may have in relation to the child (such as a statutory duty to maintain the child); or

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(b)

any rights which, in the event of the child’s death, he (or any other person) may have in relation to the child’s property.

(5) A person who – (a) does not have parental responsibility for a particular child; but (b) has care of the child, may (subject to the provisions of this Act) do what is reasonable in all the circumstances of the case for the purpose of safeguarding or promoting the child’s welfare.

Acquisition of parental responsibility by father 4. – (1) Where a child’s father and mother were not married to each other at the time of his birth, the father shall acquire parental responsibility for the child if – (a) he becomes registered as the child’s father under any of the enactments specified in subsection (1A); (b) he and the child’s mother make an agreement (a ‘parental responsibility agreement’) providing for him to have parental responsibility for the child; or (c) the court, on his application, orders that he shall have parental responsibility for the child. (1A) The enactments referred to in subsection (1)(a) are – (a) paragraphs (a), (b) and (c) of section 10(1) and of section 10A(1) of the Births and Deaths Registration Act 1953; (b) paragraphs (a), (b)(i) and (c) of section 18(1), and sections 18(2)(b) and 20(1)(a) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; and (c) sub-paragraphs (a), (b) and (c) of Article 14(3) of the Births and Deaths Registration (Northern Ireland) Order 1976. (1B) The Secretary of State may by order amend subsection (1A) so as to add further enactments to the list in that subsection. (2) No parental responsibility agreement shall have effect for the purposes of this Act unless – (a) it is made in the form prescribed by regulations made by the Lord Chancellor; and (b) where regulations are made by the Lord Chancellor prescribing the manner in which such agreements must be recorded, it is recorded in the prescribed manner.

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(2A) A person who has acquired parental responsibility under subsection (1) shall cease to have that responsibility only if the court so orders. (3) The court may make an order under subsection (2A) on the application – (a) of any person who has parental responsibility for the child; or (b) with the leave of the court, of the child himself, subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4). (4) The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.

Acquisition of parental responsibility by step-parent 4A. – (1) Where a child’s parent (‘parent A’) who has parental responsibility for the child is married to, or a civil partner of, a person who is not the child’s parent (‘the step-parent’) – (a) parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or (b) the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child. (2) An agreement under subsection (1)(a) is also ‘a parental responsibility agreement’, and section 4(2) applies in relation to such agreements as it applies in relation to parental responsibility agreements under section 4. (3) A parental responsibility agreement under subsection (1)(a), or an order under subsection (1)(b), may only be brought to an end by an order of the court made on the application – (a) of any person who has parental responsibility for the child; or (b) with the leave of the court, of the child himself. (4) The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.

APPENDIX 2

Regulations The Mental Health (Hospital, Guardianship and Treatment) (England) 1 Regulations 2008 Performance of functions of nearest relative 24. – (1) Subject to the conditions of paragraph (7), any person other than – (a) the patient; (b) a person mentioned in section 26(5) (persons deemed not to be the nearest relative); or (c) a person in respect of whom the court has made an order on the grounds set out in section 29(3)(b) to (e) (which sets out the grounds on which an application to the court for the appointment of a person to exercise the functions of a nearest relative may be made) for so long as an order under that section is in effect, may be authorised in accordance with paragraph (2) to act on behalf of the nearest relative in respect of the matters mentioned in paragraph (3). (2) Subject to paragraph (8), the authorisation mentioned in paragraph (1) must be given in writing by the nearest relative. (3) The matters referred to in paragraph (1) are the performance in respect of the patient of the functions conferred upon the nearest relative under – (a) Part 2 of the Act (as modified by Schedule 1 to the Act as the case may be); and (b) section 66 (applications to tribunals). (4) An authorisation given under paragraph (1) shall take effect upon its receipt by the person authorised.

1

SI 2008 No 1184. (These regulations were made under ss 8, 17F(2), 19(1) and (4), 19A(1), 32(1), (2) and (3), 57(1)(b), 58A(1)(b), 64(2), 64H(2) and 134(3A)(a) and (8) of the Mental Health Act 1983 (as amended). They replaced the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 with effect from 3 November 2008.

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(5) Subject to the conditions of paragraph (7), the nearest relative of a patient may give notice in writing revoking that authorisation. (6) Any revocation of such authorisation shall take effect upon the receipt of the notice by the person authorised. (7) The conditions mentioned in paragraphs (1) and (5) are that the nearest relative shall immediately notify – (a) the patient; (b) in the case of a patient liable to be detained in a hospital, the managers of that hospital; (c) in the case of a patient subject to guardianship, the responsible local social services authority and the private guardian, if any; (d) in the case of a community patient, the managers of the responsible hospital, of the authorisation or, as the case may be, its revocation. (8) An authorisation or notification referred to in this regulation may be transmitted by means of electronic communication if the recipient agrees.

Discharge by nearest relative 25. – (1) Any report given by the responsible clinician for the purposes of section 25 (restrictions on discharge by nearest relative) – (a) shall be in the form set out in Part 1 of Form M2; and (b) the receipt of that report by – (i) the managers of the hospital in which the patient is liable to be detained; or (ii) the managers of the responsible hospital in the case of a community patient, shall be in the form set out in Part 2 of that Form. (2) In addition to the methods of serving documents provided for by regulation 3(1), reports under this regulation may be furnished by – (a) transmission by facsimile; or (b) the transmission in electronic form of a reproduction of the report, if the managers of the hospital agree.

Provision of information 26. – (1) Unless the patient requests otherwise, where –

APPENDIX 2: REGULATIONS

(a)

(b)

(c)

(d)

(e)

173

a patient is to be or has been transferred from hospital to hospital pursuant to section 19 or section 123 (regulations as to transfer of patients and transfer to and from special hospitals respectively), the managers of the hospital to which the patient is to be or has been transferred shall take such steps as are reasonably practicable to cause the person (if any) appearing to them to be the patient’s nearest relative to be informed of that transfer before it takes place or as soon as practicable thereafter; a patient’s detention is renewed pursuant to a report furnished under section 20 (duration of authority), the managers of the responsible hospital shall take such steps as are reasonably practicable to cause the person (if any) appearing to them to be the patient’s nearest relative to be informed of that renewal as soon as practicable following their decision not to discharge the patient; by virtue of section 21B(7) (patients who are taken into custody or return after more than 28 days) a patient’s detention is renewed pursuant to a report furnished under section 21B(2), the managers of the responsible hospital in which the patient is liable to be detained shall take such steps as are reasonably practicable to cause the person (if any) appearing to them to be the patient’s nearest relative to be informed of that renewal as soon as practicable following their decision not to discharge the patient; by virtue of section 21B(5) and (6) (patients who are taken into custody or return after more than 28 days), a patient’s detention is renewed retrospectively pursuant to a report furnished under section 21B(2), the managers of the hospital in which the patient is liable to be detained shall take such steps as are reasonably practicable to cause the patient and the person (if any) appearing to them to be the patient’s nearest relative to be informed of that renewal as soon as practicable following their receipt of that report; the patient’s period of community treatment is extended pursuant to a report furnished under section 20A (community treatment period), the managers of the responsible hospital shall take such steps as are reasonably practicable to cause the person (if any) appearing to them to be the patient’s nearest relative to be informed of that extension as soon as

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(f )

(g)

(h)

(i)

(j)

practicable following their decision not to discharge the patient; by virtue of section 21B(7A) (patients who are taken into custody or return after more than 28 days) a patient’s period of community treatment is extended pursuant to a report furnished under section 21B(2), the managers of the responsible hospital shall take such steps as are reasonably practicable to cause the person (if any) appearing to them to be the patient’s nearest relative to be informed of that extension as soon as practicable following their decision not to discharge the patient; by virtue of section 21B(6A) and (6B) (patients who are taken into custody or return after more than 28 days) a patient’s period of community treatment is extended retrospectively pursuant to a report furnished under section 21B(2), the managers of the responsible hospital shall take such steps as are reasonably practicable to cause the patient and the person (if any) appearing to them to be the patient’s nearest relative to be informed of that extension as soon as practicable following their receipt of that report; a patient is to be or has been assigned to another hospital which assumes responsibility for that patient as a community patient, the managers of the hospital to which the patient is to be or has been assigned shall take such steps as are reasonably practicable to cause the person (if any) appearing to them to be the patient’s nearest relative to be informed of that assignment before or as soon as practicable following it taking place; a patient is to be or has been transferred from hospital to guardianship pursuant to section 19 (regulations as to transfer of patients), the responsible local social services authority shall take such steps as are reasonably practicable to cause the person appearing to it to be the patient’s nearest relative to be informed of that transfer before it takes place or as soon as practicable thereafter; a patient is to be or has been transferred from the guardianship of one person to the guardianship of another person pursuant to section 19 (regulations as to transfer of patients), the new responsible local social services authority shall take such steps as are reasonably practicable to cause the person (if any) appearing to it to be the patient’s nearest

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(k)

(l)

(m)

(n)

175

relative to be informed of that transfer before it takes place or as soon as practicable thereafter; a patient’s guardianship becomes vested in the local social services authority or the functions of a guardian are, during the guardian’s incapacity, transferred to the authority or a person approved by it under section 10 (transfer of guardianship in case of death, incapacity, etc of guardian), the responsible local social services authority shall take such steps as are reasonably practicable to cause the person (if any) appearing to it to be the patient’s nearest relative to be informed of that vesting, or as the case may be, transfer before it takes place or as soon as practicable thereafter; a patient’s guardianship is renewed pursuant to a report furnished under section 20 (duration of authority), the responsible local social services authority shall take such steps as are reasonably practicable to cause the person (if any) appearing to be the patient’s nearest relative to be informed of that renewal as soon as practicable following the decision of the responsible local social services authority to discharge the patient; by virtue of section 21B(7) (patients who are taken into custody or return after more than 28 days) a patient’s guardianship is renewed pursuant to a report furnished under section 21B(7), the responsible local social services authority shall take such steps as are reasonably practicable to cause the person (if any) appearing to be the patient’s nearest relative to be informed of that renewal as soon as practicable following the decision of the responsible local social services authority not to discharge the patient; by virtue of section 21B(5) and (6) (patients who are taken into custody or return after more than 28 days) a patient’s guardianship is renewed retrospectively pursuant to a report furnished under section 21B(2), the responsible local social services authority shall take such steps as are reasonably practicable to cause the patient and the person (if any) appearing to it to be the patient’s nearest relative to be informed of that renewal as soon as practicable following the receipt by the responsible local social services authority of that report.

(2) Where paragraph (l), (m) or (n) applies, the responsible local social services authority shall, as soon as practicable, inform the private guardian (if any) of its

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receipt of a report furnished under section 21B (patients who are taken into custody or return after more than 28 days). (3) Upon a patient becoming subject to guardianship under the Act, the responsible local social services authority shall take such steps as are reasonably practicable to cause to be informed both the patient and the person (if any) appearing to the authority to be the patient’s nearest relative of the rights referred to in paragraph (4). (4) Those rights are – (a) the patient’s rights under section 66 (applications to tribunals); (b) the nearest relative’s right, as the case may be, to – (i) discharge the patient under section 23 (discharge of patients); or (ii) make an application under section 69 (application to tribunals concerning patients subject to hospital and guardianship orders where the patient is, or is treated as being, subject to guardianship under section 37). (5) Where information referred to in paragraph (1)(d), (g) or (n), or in paragraph (3), is to be given to the patient, it shall be given both orally and in writing. (6) Where information referred to in paragraph (1) is to be given to the person appearing to be the patient’s nearest relative, it shall be given in writing. (7) Where information referred to in paragraph (2) is to be given to the private guardian, it shall be given in writing. (8) Information that is to be given in writing under paragraphs (6) and (7) may be transmitted by means of electronic communication if the recipient agrees. (9) The functions of the managers referred to in this regulation may be performed by an officer authorised by them in that behalf.

APPENDIX 3

Specimen Document Authority to act on behalf of the nearest relative I, [insert name of nearest relative], of [insert full address] am the [state relation to patient] of [insert name of patient] and therefore his/her nearest relative within the meaning of the Mental Health Act 1983.

This authority is given pursuant to the Act, and also to Regulation 24(1) of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008.

I hereby authorise [insert name of delegate] to act on my behalf as the nearest relative of [insert name of patient].

Signed:

………………………… Nearest Relative

Date:

………………

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APPENDIX 4

List of Legal Cases Cited B (A) v. B (L) (Mental Health Patient) [1980] 1 WLR 116, CA (4.47; 4.68) Barnet LBC v. Robin [1998] EWCA Civ 1630 (4.74) Brenda Lewis v. Mark Gibson [2005] EWCA Civ 587 (4.35; 4.58) Brown v. Stott [2001] 2 WLR 817 (5.146) C v. S (A Minor) (Abduction) [1990] 2 FLR 442 (2.64) Dedman v. British Building and Engineering Appliances Ltd [1974] 1 WLR 171 (1.26) Derbyshire County Council v. Maude [1999] EWCA Civ 1760 (4.62; 4.107) FC v. United Kingdom, Application No 37344/97, European Court of Human Rights, 7 September 1999 (1.22) Fitzpatrick v. Sterling Housing Association Limited [1999] 4 All ER 705 (1.33) Gary Kinsey v. North Mersey Community NHS Trust, Divisional Court, Sedley LJ, 21 June 1999 (6.26) GD v. The Hospital Managers of the Edgware Community Hospital and the London Borough of Barnet, CO/5733/2008, Burnett J, 27 June 2008 (5.77; 5.80; 5.85) Harrogate BC v. Simpson (1985) 17 HLR 205, CA (1.33) JT v. United Kingdom, Application No 26494/95, European Court of Human Rights, 30 March 2000; (2000) 1 FLR 909 (1.22) M v. United Kingdom, Application No 30357/03, Decision of 13 February 2007 (1.24) McMichael v. United Kingdom (1995) 20 EHRR 205 (5.146) Mohammed v. Hammersmith and Fulham LBC [2002] UKHL 57 (2.74; 2.77) Mummery v. Mummery [1942] P 107 (2.33) Owen and another v. Crown House Engineering Limited [1973] 3 All ER 618 (1.26) R (A) v. West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin) (2.62) R (Adrian Holloway) v. Oxfordshire County Council, Oxford County Court and Oxfordshire and Buckinghamshire Mental Health Partnership NHS Trust [2007] EWHC 776 (Admin) (4.70) R (C) v. the London Maudsley NHS Trust and the Mental Health Review Tribunal [2003] EWHC 3467 (Admin) (1.26) R (E) v. Bristol City Council [2005] EWHC 74 (Admin) (1.25; 1.26; 4.83; 5.64; 5.67; 5.68; 5.101) R (G) v. Ealing LBC [2002] EWHC 1112 (Admin) (5.86)

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R (H) v. Mental Health Review Tribunal, CO/2404/2000, Longmore J, 7 December 2000 (2.2) R (M) v. Secretary of State for Health [2003] EWHC 1094 (Admin) (1.24) R (MH) v. Secretary of State for Health [2005] UKHL 60 (4.62; 4.107) R (Robinson) v. The Hospital Managers of the Park Royal Hospital, Queen’s Bench Division (Stanley Burnton J), 26 November 2007 (2.8; 2.31; 2.35) R (SR) v. Huntercombe Maidenhead Hospital [2005] EWHC 2361 (Admin) (6.36) R (SSG) v. Liverpool City Council and the Secretary of State for Health, CO/1220/2002, Maurice Kay J (1.34; 2.38; 3.8) R (Stevens) v. Plymouth City Council and another [2002] EWCA Civ 388 (4.62; 4.68; 4.69; 5.142; 5.143; 5.144; 5.146; 6.21; 6.22; 6.23) R (WC) v. South London and Maudsley NHS Trust and another [2001] EWHC 1025 (Admin) (2.8; 2.76; 5.75) R (Wirral Health Authority and Wirral Borough Council) v. Dr Finnegan and DE [2001] EWHC 312 (Admin) (6.6) R v. Barnet LBC, ex parte Shah [1983] 1 All ER 226, HL (2.62; 2.75) R v. Birmingham Mental Health Trust, ex parte Phillips, CO/1501/95, Tucker J, 25 May 1995 (5.107) R v. Central London County Court, ex parte London [1999] 3 All ER 991, CA (4.73) R v. Liverpool City Council, ex parte F, CO/2744/96, McCullough J, 16 April 1997 (2.78; 2.85) R v. Riverside Mental Health Trust, ex parte Huzzey (1998) 43 BMLR 167 (6.34; 6.35) R v. Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 All ER 164 (5.80) R v. South Western Hospital Managers, ex parte M [1994] 1 All ER 161 (5.40; 5.76; 5.78; 5.81; 5.105) R v. Uxbridge County Court, ex parte Binns [2000] MHLR 179 (4.70; 4.72) R v. Wilson, ex parte Williamson [1996] COD 42 (5.87) Re Briscoe [1998] EWHC 771 (Admin) (5.80) Re D (Adoption Reports: Confidentiality) [1996] AC 593 (4.68) Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848 (2.82; 2.83; 5.74) Re GK (Patient: Habeas Corpus) [1999] MHLR 128 (6.16) Re GM (Patient: Consultation) [2000] MHLR 41 (5.85) Re P (Adoption) (Natural Father’s Rights) [1994] 1 FLR 771 (1.26) Re S-C (Mental Patient: Habeas Corpus) [1996] 1 All ER 532, CA (5.97) Re Shearon [1996] COD 223, DC (5.84; 5.86) Re W (An Infant) [1971] 2 All ER 49 (4.44; 4.45) Re Whitbread [1999] COD 370 (6.27) Re Whitbread (Mental Patient: Habeas Corpus) [1997] EWCA Civ 1945 (5.41; 5.77; 5.79) Smirek v. Williams, Court of Appeal, 7 April 2000 (unreported) (4.45)

APPENDIX 4: LIST OF LEGAL CASES CITED

181

Surrey County Council Social Services Department v. McMurray, Court of Appeal, 11 November 1994 (unreported) (4.51; 4.83) TP and KM v. United Kingdom [2001] 2 FCR 289 (5.146) W v. Egdell [1990] Ch. 359 (5.144) W v. L [1974] QB 711, CA (4.43) W v. United Kingdom (1977) 10 EHRR 29 (5.146)

References Bartlett, P. and Sandland, R. (2007) Mental Health Law: Policy and Practice (third edition). Oxford: Oxford University Press. Department of Health (1995) Mental Health Act 1983: Memorandum on Parts I to VI, VIII and X. London: Department of Health. Department of Health (1999a) National Service Framework for Mental Health, HSC 1999/223. London: Department of Health. Department of Health (1999b) Caring about Carers: A National Strategy for Carers. London: Department of Health. Department of Health (2008a) Mental Health Act 1983: Code of Practice. London: The Stationery Office. Department of Health (2008b) Reference Guide to the Mental Health Act 1983. London: The Stationery Office. Department of Health and Welsh Office (1999) Mental Health Act 1983: Code of Practice. London: Department of Health. Gostin, L. (1986) Mental Health Services: Law and Practice. Crayford: Shaw and Sons. Hewitt, D. (1999) ‘Mental Health Law.’ In C. Baker (ed.) The Human Rights Act 1998: A Practitioner’s Guide. London: Sweet and Maxwell. Hewitt, D. (2002a) ‘Do human rights impact on mental health law?’ New Law Journal, 8 February 2002, pp.1278 and 1287. Hewitt, D. (2002b) ‘Good in parts.’ New Law Journal, 10 May 2002, p.1016. Hewitt, D. (2002c) ‘Treatability tests.’ Solicitors Journal, 4 October 2002, pp.886–887. Hewitt, D. (2003) ‘Uncomfortable truths.’ New Law Journal, 2 May 2003, pp.661–662. Hewitt, D. (2004a) ‘Between necessity and chance.’ New Law Journal, 16 April 2004, pp.584 and 585. Hewitt, D. (2004b) ‘Windmills, not giants.’ Solicitors Journal, 5 November 2004, pp.1271 and 1272. Hewitt, D. (2005a) ‘To improve, not bury the Draft Bill.’ New Law Journal, 15 April 2005, p. 561. Hewitt, D. (2005b) ‘Mind games.’ Solicitors Journal, 12 August 2005, p.966. Hewitt, D. (2006) ‘Saving face.’ New Law Journal, 14 April 2006, p.613. Hewitt, D. (2007a) ‘Relative progress?’ New Law Journal, 26 January 2007, pp.126 and 127. Hewitt, D. (2007b) ‘Treatment shock.’ New Law Journal, 14 September 2007, pp.1258. Hewitt, D. (2007c) ‘Re-considering the Mental Health Bill: the view of the Parliamentary Human Rights Committee.’ Journal of Mental Health Law 15, pp.57–71. Jones, R. (2004) Mental Health Act Manual (ninth edition). London: Sweet and Maxwell.

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Jones, R. (2006) Mental Health Act Manual (tenth edition). London: Sweet and Maxwell. Mental Health Act Commission (1997) Seventh Biennial Report, 1995–1997. London: The Stationery Office. Mental Health Act Commission (1999) Eighth Biennial Report, 1997–1999. London: The Stationery Office. Mental Health Act Commission (2001) Ninth Biennial Report, 1999–2001. London: The Stationery Office. Mental Health Act Commission (2008) Risk, Rights, Recovery: Twelfth Biennial Report, 2005–2007. London: The Stationery Office. Porter, R. (1987) Mind-Forg’d Manacles: A History of Madness in England – From the Restoration to the Regency. London: Athlone Press. Rapaport, J. (2002) A Relative Affair: The Nearest Relative under the Mental Health Act 1983. Unpublished PhD thesis. Anglia Polytechnic University. Rapaport, J. (2003) ‘The ghost of the nearest relative under the Mental Health Act 1983 – past, present and future.’ Journal of Mental Health Law, July, pp.51–65.

Subject Index with other people Note: Paragraph numbers (e.g. 1.25, 8.11) are used as 5.92–5.94 locators for the main text. information rights of NR Page numbers in italics relate 5.99–5.147 to text in the appendices. The to guardianship 5.48–5.52 following abbreviations are for treatment used: NR for nearest relative; objection by NR MHA 1983 for Mental Health 5.84–5.88 Act 1983; MHA 2007 for adopted children 2.51 Mental Health Act 2007 adults, identifying NR of 2.1–2.41 Approved Mental Health abuse 1.9, 1.11, 1.18–1.19, Professional (AMHP) 1.42–1.43, 4.55–4.56 application for admission Act for Regulating Private 4.42, 5.5–5.8 Madhouses (1774) 1.2 conflicts of interest acting nearest relative 5.31–5.36 application for appointment considering patient’s case of 4.25–4.56, 160–2 5.10–5.23, 154–5 MHA 2007 changes 1.39, consultation before 1.41 5.55–5.83 admission 5.1–5.4 deciding not to apply application for 5.37–5.47 5.24–5.30 before admission 5.5 appointment/displacement best applicant 5.6–5.9 applications conflicts of interest 4.29–4.33 5.31–5.36 nomination of acting NR consideration of patient’s 4.59 case 5.10–5.23 practicability of decision not to apply consultation 5.24–5.30 1.25–1.30, 4.40 consultation asymmetrical relationships defects in 5.95–5.98 2.91 with nearest relative authorisation to act on behalf 5.53–5.91 of NR 4.2

185

expiry of 4.21–4.24 giving an authorisation 4.3–4.16 revocation of 4.17–4.20 specimen document 177

barring report 6.24–6.31

‘cared for’ patients 2.81–2.90 children adopted children 2.51 in care 2.52, 3.3–3.11 definition of ‘child’ 3.6 illegitimate 2.46–2.47 as nearest relative 2.42–2.45 stepchildren 2.50 see also minors, nearest relative of Children Act (1989), parental responsibility 166–9 civil partners 2.24–2.29, 159 children as 3.11 MHA 2007 changes 1.39, 1.40 community patients, information rights 5.134–5.138, 165 community treatment order (CTO) 5.123, 164 consultation defective 5.95–5.98 with nearest relative 5.53

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consultation cont. before admission for treatment 5.54–5.88 before application for guardianship 5.89–5.90 situations other than admission 5.91 with other people 5.92–5.94

Data Protection Act 1998 (DPA 1998) 5.140–5.143 detained patients, informing the NR 5.123, 5.128–5.133 discharge 6.1 application to MHRTs 6.37–6.43 making the application 6.52–6.55 the right to apply 6.44–6.47 time constraints 6.48–6.51 consultation with NR 5.91 information rights of NR 5.113–5.120 NR’s own power of 6.2–6.5 barring of 6.24–6.31 expert advice, seeking 6.20–6.23 order made by NR 6.6–6.19 review by managers 6.32–6.36 disclosure of documents 4.68–4.69, 5.101–5.102, 5.141–5.144,

5.146–5.147, 6.22–6.23 displacement of NR 4.25–4.26, 4.104–4.107 application procedure 4.57–4.67 disclosure of documents 4.68–4.69 hearings ex parte 4.70–4.71 interim orders 4.72–4.73 grounds for 4.34–4.56 NR exercised discharge power 4.48–4.52 NR incapable of acting 4.38–4.40 NR unreasonably objects to admission 4.41–4.47 patient has no NR 4.36–4.37 unsuitability of NR 1.39, 4.53–4.56 MHA 2007 changes 1.39 orders 4.74–4.79 discharge or variation of 4.92–4.103, 162–4 duration of 4.85–4.91 effect of 4.80–4.84 people who can make application 4.27–4.28 role of AMHP 4.29–4.33 draft Mental Health Bills 1.23 duty of confidence 5.144 duty to consult 5.55–5.58

European Convention on Human Rights (ECHR) 1.20

and Article 8, breaches of 1.20–1.36, 5.64, 5.101 disclosure of information 5.145–5.147 European Court of Human Rights (ECtHR) 1.23–1.24

fathers, acquisition of parental responsibility 2.49, 168–9

general rules 2.10–2.17 Government and breaches of Article 8 of ECHR 1.22 honouring promise to ECtHR 1.23–1.36 and role of NR 1.44 guardianship application for admission to 5.48–5.52 consultation before application 5.89–5.90 information rights of NR 5.121–5.122, 5.124 minors subject to 3.12–3.18, 160

half-siblings 2.53–2.54 heterosexual cohabitees 1.32, 1.40, 2.30–2.37, 3.8–3.9 history of nearest relative early history 1.1–1.13 see also Mental Health Act (MHA 1983) homosexual cohabitees 1.31–1.36, 2.38–2.41, 3.8–3.10

SUBJECT INDEX

hospital managers, duty to provide information 164–6 hospitalised patients, determining NR of 2.58, 2.70 husbands and wives 2.18–2.23 definition of terms 3.8 heterosexual cohabitees 2.30–2.37 homosexual cohabitees 2.38–2.41

illegitimate children 2.46–2.47 informal patients 4.16, 4.20, 5.139, 6.5 information rights of NR 5.99–5.103 admission for assessment 5.104–5.112 common law duty of confidence 5.144 community patients 5.134–5.138 Data Protection Act 5.140–5.143 detained patients 5.123, 5.128–5.133 discharged patients 5.113–5.120, 166 ECHR provisions 5.145–5.147 guardianship 5.121–5.122, 5.124 informal patients 5.139 interim orders, admission application 4.72–4.73

Joint Committee on Human Rights (JCHR) 1.42–1.43

legal cases cited 179–181 local authority (LA) children in care 2.52, 3.4–3.5, 3.10, 159 guidance to AMHPs 4.33, 5.9, 5.15 of patient subject to guardianship 6.18 Lunacy Act (1890) 1.5–1.7

Madhouses Act (1928) 1.3 mental disorder, introduction of simplified definition 1.38 Mental Health Act 1959 (MHA 1959) 1.11–1.13 Mental Health Act 1983 (MHA 1983) 1.14 application to MHRTs (s.66) 6.37–6.55 applications duty of AMHPs 154–5 general provisions 153–4 appointment of acting NR (s.29) 4.25–4.56, 160–2 breaches of ECHR, Article 8 1.20–1.24 practicability issue 1.25–1.30 same-sex cohabitees 1.31–1.36 children and young persons in care (s.27) 3.3–3.10, 159 discharge of patients (s.23) 6.2–6.36, 155–7 minor under guardianship (s.28) 3.12–3.18, 160 nearest relative provisions (s.26) 2.1–2.9

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asymmetrical relationships 2.91 cared for 2.81–2.90 civil partners 2.24–2.29 cohabitees 2.30–2.41 general rules 2.10–2.17 half-siblings 2.53–2.54 husbands and wives 2.18–2.23 ordinarily resident 2.73–2.80 other people 2.66–2.72 other relatives 2.55–2.59 parents and children 2.42–2.52 relatives living abroad 2.60–2.65 orders, discharge and variation of (s.30) 4.92–4.103, 162–4 problems with NR 1.15–1.22 restrictions on discharge by NR (s.25) 6.24–6.31, 157 wards of court, special provisions (s.33) 164 Mental Health Act 2007 (MHA 2007) changes made by 1.37–1.39 civil partners 1.39, 1.40 patient’s right to displace NR 1.41 role of NR 1.44 unsuitability of NR 1.42–1.43, 4.55 Mental Health Bill (2006) 1.24, 1.37 Mental Health (Hospital, Guardianship and Treatment) (England) Regulations (2008) discharge by NR 172

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Mental Health (Hospital, Guardianship and Treatment) (England) Regulations (2008)cont. performance of functions of NR 171–2 provision of information 172–6 Mental Health Review Tribunal (MHRT) 6.37–6.43 applying for discharge 6.52–6.55 the right to apply 6.44–6.47 time constraints 6.48–6.51 minors, nearest relative of 3.1–3.2 children and young persons in care 3.3–3.11, 159 subject to guardianship 3.12–3.18, 160 wards of court 3.19, 164 see also children

nearest relative (NR) definition of 157–9 problems with 1.15–1.22 recent history of 1.1–1.13 role of 1.15, 1.38, 1.44 see also Mental Health Act (1983); Mental Health Act (2007) next-of-kin 2.6 nominated person 4.59, 4.76–4.79, 4.98–4.100, 160, 162 non relatives 2.66–2.72

orders, displacement 4.72–4.91 discharge and variation of 4.92–4.103, 162–4

ordinary residence 2.73–2.80

parental responsibility 2.48–2.49, 167–9 Percy Commission 1.9–1.11 ‘practicability’ of consulting NR 1.25–1.30, 5.59–5.70

relatives definition of 157–8 living abroad 2.60–2.65 qualifying as NR 2.55–2.59 residence ordinary residence 2.73–2.80 relatives living abroad 2.60–2.65 Responsible Clinician (RC), barring report 6.24–6.31 revocation of an authorisation 4.17–4.20

same-sex cohabitees 1.31–1.36, 1.40 six-month rule 1.32, 1.36, 2.30, 2.31, 2.36, 2.38–2.39 step-parents, acquisition of parental responsibility 2.48, 169 stepchildren 2.50 suitability of NR 1.39, 1.42–1.43, 4.53–4.56 Supervised Community Treatment 1.38, 5.91

treatment admission

duty to consult NR 5.54–5.88 NRs objection to 5.84–5.88

unsuitability of NR 4.53–4.56

wards of court admission to hospital 5.2, 5.38 and discharge from detention 6.2, 6.40, 6.46 nearest relative of 3.19 special provisions 164 wives see husbands and wives

young persons in care 3.3–3.11, 159 redundancy of term 3.6 subject to guardianship 3.12–3.18, 160

Author Index Note: Locators are paragraph Jones, R. 1.27, 2.71n120, numbers. If these are 5.12n18, 5.20, followed by the letter n 5.37n49, 5.48n65, and another number this 5.85n109, 5.96n133, refers to the note at the 5.109n147, bottom of the page on 5.113n149, which the paragraph 5.139n212, 6.2n1, appears. 6.20n35, 6.24n39, 6.27n41, 6.30n48, 6.37n58 Bartlett, P. 1.44n81, 2.76n131, 4.41n63, 4.46, 5.64n32 Mental Health Act Commission 1.18, 1.27, 2.60n107 Department of Health 1.28, 1.34, 1.35, 1.37, 2.2-3, 2.9n16, 3.4n5, 4.6n9, Porter, R. 1.2n3 4.29n50, 4.37n59, 4.42n64, 4.49n74, 4.86n148, 5.3n3, Rapaport, J. 1.1n1, 1.2n3, 5.4n6, 5.77n97, 1.9n12, 1.11n13, 5.91n122, 5.139n212, 1.11n14, 1.12n15 6.2n1, 6.15n22 Department of Health and Welsh Office 1.26n45, Sandland, R. 1.44n81, 4.3n3, 5.8n13, 2.76n131, 4.41n63, 5.15n19, 5.26n31, 4.46, 5.64n82 5.70n90

Gostin, L. 2.9n16

Hewitt, D. 1.21n33, 1.23n36, 1.39n63, 1.42n79

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