Mental Health - July 2010
Beyond reasonable belief
Must an AMHP be both unreasonable and wrong if
detention is to be unlawful?
Where someone is to be detained under the
Mental Health Act, his nearest relative has a significant part to
play. If detention is to be for anything other than the short-term,
the nearest relative may object and any objection might carry the
day. The objection must be given to the Approved Mental Health
Professional (AMHP) who will apply for detention, but what if she
doesn’t believe it has been made?
Recently, a nearest relative who objected to
admission went on to make comments that were more ambiguous. The
AMHP said she believed that he had eventually agreed to detention,
but although genuine, this understanding was held unreasonable and
Burton J ordered the patient’s release (M v East London NHS
Foundation Trust, 11 February 2009). The patient
subsequently came back to court, and the result of that second
hearing, before Collins J, could prove uncomfortable (TTM v
Hackney LBC and East London NHS Foundation Trust, 11 June
2010).
One issue was the AMHP’s belief: must it be
unreasonable if the patient is to succeed, or need it just be
wrong? And what if it is both?
These questions arose when Collins J
considered whether to permit a damages claim against the local
authority whose AMHP had the patient detained. He decided not to do
so, ruling that although detention was unlawful “there is no
reasonable prospect of success in any negligence claim.” That is a
surprising, if barely explained, decision, not least because at the
first hearing, Burton J appeared to have taken a contrary view. He
said, “I believe [the AMHP] did act properly … [but] it was not
reasonable of her to have formed the view that she did.” Collins J
said this did not imply that the AMHP was negligent; it merely
followed from Burton J’s finding of fact that having once objected
to admission, the nearest relative hadn’t subsequently changed his
mind.
There is logic in this position, for the Act
itself makes no mention of ‘reasonable belief’. Section 11(4)(a)
simply prohibits an AMHP from making an application for longer-term
detention if the nearest relative has notified her that he objects
to it, and that seems to impose an objective test. Burton J saw no
tension between that and his ‘reasonable belief’ test, but Collins
J said, “Lawfulness of detention … does not depend on whether the
AMHP reasonably believes that there is no objection but on whether
in fact there was no objection.”
The problem isn’t so much what Burton J and
Collins J say as the, perhaps diplomatic, attempt by the latter to
suggest that it is the same thing. Burton J can be read to have
dismissed the objective test. He offered the key question ‘what was
the reasonable belief of the AMHP?’ and suggested three ways to
reach an answer. He chose the third way: to ask “on analysis of the
facts, did the AMHP act reasonably in concluding that there was an
objection?” But he did so only after dismissing two other courses:
to look at the subjective opinion of the nearest relative or to
decide “whether there was objection by reference to analysis of the
evidence.” The latter is surely the objective analysis favoured by
Collins J, but Burton J thought it “would be likely to … create an
unnecessary risk for the hospital and for the AMHP in relation to
each particular case, without achieving any necessary protection
for the patient.” Surely, then, ‘reasonable belief’ is one thing
and the objective test another, and Burton J does not say what
Collins J says he says.
A more charitable view might be that Burton J
did not seek to establish ‘reasonable belief’ as a discrete test;
he simply used it to determine what, objectively, had been
communicated to the AMHP by the nearest relative. Such an approach
has an objective bias that would make it easier to reconcile with
the one proposed by Collins J. Perhaps this will all be resolved on
appeal.
It is hard not to feel sorry for the patient
in this case, who was detained when, the High Court has twice
accepted, he should not have been, and for his nearest relative,
whose clear objection was not allowed to have effect. Yet, the
patient finds he has no remedy, despite the AMHP’s unlawful act,
and she is not negligent, even though the belief she acted upon was
not reasonably held. This case runs the real risk of perpetuating,
and even compounding, the misfortune it has laid bare.
David Hewitt,
Partner
Weightmans LLP
The first hearing in this case, before Burton
J, was the subject of an article in the September 2009 edition of
this newsletter. That article may be found
here.
The judgment following the second hearing may
be found here.
This is a revised version of an article
published in the Solicitors Journal.