Local Government - November 2009
Nearest relative objection
Where a nearest relative has discharged a patient from detention
that alone might count as an objection to a subsequent admission.
That is the suggestion of the High Court in M v East London NHS
Foundation Trust, a case which, though it was heard in February,
was only reported over the summer.
Facts
A patient, Mr M, had been detained under section 3 of the Mental
Health Act, even though in a telephone conversation that took place
earlier the same day his nearest relative had registered a clear
objection.
Decision
The nearest relative’s objection would, of course, have
precluded use of the Act, but the Approved Mental Health
Professional (AMHP) who applied for detention believed it had been
withdrawn. The court ruled there were no reasonable grounds for
that belief, and that as a result, the patient’s detention was
unlawful.
On two previous occasions when Mr M had been admitted to
hospital under the Mental Health Act, his nearest relative had
discharged him from detention and the court held those events might
also have been taken into account here. “Clearly,” it said, “the
nearer in time the previous events are, the more relevant they
become, particularly if they show … a state of mind of the nearest
relative which is unlikely to be changed …” (In the light of the
nearest relative’s subsequent, unambiguous objection, these earlier
events were of limited relevance in this case).
Comment
It is helpful to have the confirmation the High Court has
provided in this case. If an AMHP’s actions are to be lawful, it
seems sensible that they will have to be based upon a view that is
not just genuinely held, but also objectively fair. And it will
come as no surprise to practitioners to learn that an objection, or
a non-objection, to detention can be reversed.
The most striking element of this decision, however, is the
suggestion that a previous discharge by a NR might count as his
objection to a subsequent admission. That is likely to prove
controversial and it might also be burdensome. Clearly, an AMHP
cannot take account of a previous discharge of which he is unaware.
He might be deemed to have a duty of reasonable enquiry, of course,
but another question arises: where he knows about such a discharge,
is an AMHP bound to treat it as the objection of a NR who, for
whatever reason, he has decided not to consult?
Summary
This is what we now know:
- When an AMHP intends to make an application for a patient to be
detained he must tell the nearest relative so and explain why.
- The nearest relative must be given a proper opportunity to
object to detention.
- The AMHP need not go so far as to say, “do you object”, unless
he has been given reason to doubt whether the nearest relative has
objected or whether a previous objection (or non-objection) has
been reversed.
- Previous events might have to be taken into account in deciding
whether the nearest relative objects to detention.
- Everything turns on the AMHP’s reasonable belief, and a belief
may be unreasonable, even if it is genuinely held.
- The nearest relative may object to a patient’s detention, even
though he has previously failed to do so, but any such objection
will only forestall detention if it is made by reasonable means and
before the detention has been carried into effect.
David Hewitt, Partner
Weightmans LLP