Mental Health - April 2010

I know what you’re thinking

Where a patient is to be detained under the Mental Health Act, professionals should not make assumptions about the views of his nearest relative.

That was the decision of the High Court in a recent, and so far unreported, case concerning V, whom it was planned to detain under section 3 of the Act (R (V) v South London and Maudsley NHS Foundation Trust, Queen’s Bench Division (Wyn Williams J) 8 February 2010).

V had already been detained under section 3, but the relevant hospital trust was not satisfied that his detention was lawful.  He was therefore brought within section 5(2) of the Act, which, of course, allowed for him to be detained for up to 72 hours.  The day after this period had expired, V was reviewed by an Approved Mental Health Professional (AMHP) and a doctor, a process with which he refused to co-operate.  The AMHP made an application for V to be detained under section 3 once again, but in completing the requisite form, erroneously stated both that V was currently detained under section 5(2) and that his nearest relative was not known to her.  At trial, the AMHP said that, notwithstanding the form, she had unsuccessfully attempted to contact the nearest relative before making the detention application.

The court upheld V’s challenge to his detention.  It referred to section 11(4) of the Mental Health Act, which provides that an AMHP may not make an application for treatment without consulting the nearest relative unless it appears to the AMHP that consultation is not reasonably practicable or would involve unreasonable delay. The court said this must relate to circumstances known to, or believed by, the professional at that point-in-time.  Although V’s detention under section 5(2) had expired, and his detention had become even more urgent, the AMHP had not been aware of this and so, the court found, she could not rely on section 11(4) and claim that consulting the nearest relative would cause an unreasonable delay.

The AMHP suggested that in any event, the section 3 application was lawful even without consultation, because the nearest relative had consented to detention in the past and it was reasonable to infer that she would have done so now (the nearest relative confirmed that if she had been consulted, she would not have objected to the patient being detained). The court did not agree. It said consultation with the nearest relative is a necessary safeguard and it is not appropriate for any professional to make assumptions as to that person’s views. 

Emma Galland, Solicitor
Weightmans LLP