Mental Health - September 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for detention believed it had been withdrawn.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
david.hewitt@weightmans.com
This is the revised version of an
article that first appeared in the Solicitors Journal
The second edition of David Hewitt’s book,
The Nearest Relative Handbook, was nominated for a BMA
Book Award. More details can be found at http://www.jkp.com/catalogue/book/9781843109716/