The Mental Health Act 1983 - setting aside the nearest relative

Jigsaw iStock 000003956659XSmall 146x219Derek Jones examines the role of Approved Mental Health Professionals and setting aside a patient's nearest relative.

Approved Mental Health Professionals (AMHPs) play a key role in the compulsory detention of the mentally ill, and often seek advice about complex cases at short notice. This is a summary about both AMHPs and the most frequent reason for their contact with lawyers - setting aside a patient’s nearest relative.

The AMHP

AMHPs fulfill broadly the same role as what were previously called Approved Social Workers (ASWs). The Code of Practice Mental Health Act 1983 describes them as “a social worker or other professional approved by a local social services authority to carry out a variety of functions under the Act". The competency requirements for AMHPs and the approval process are set out in The Mental Health (Approved Mental Health Professional) (Approval) (England) Regulations 2008.

The key points are:

a) It is the Local Social Services Authority (LSSA) who approves them as AMHPs;

b) There is no requirement for an AMHP to be a social worker. The Regulations simply say that an LSSA may only appoint someone to act as an AMHP if "satisfied that the person has appropriate competence in dealing with persons who are suffering from mental disorder". It then sets out the professional requirements for approval which are that the potential AMHP is qualified as a registered social worker; a first level nurse; a registered occupational therapist; or a chartered psychologist.

So although an AMHP will always have been approved by a LSSA, they may be employed by another organisation; e.g. the local health trust.

The AMHPs statutory functions are scattered throughout the Act but briefly the most important functions are about what is otherwise called "sectioning" i.e. the compulsory admission of individuals to hospital for either assessment (under s.2 MHA 1983) or treatment (under s.3 MHA 1983).

AMHPs and the "nearest relative"

Section 11 of the Act says that an AMHP cannot make an application that a person be detained for treatment under section 3 if either: “they have not consulted the person who appears to be the patient's nearest relative (unless it is not reasonably practicable or would cause unreasonable delay); or the nearest relative has told either the AMHP or the LSSA that they object.”

"Nearest relatives" are defined in section 26 of the Act. Briefly, the section gives a list, in order of precedence, of the classes of people who are entitled to be nearest relative. As described, the nearest relative is able to prevent the compulsory detention of a patient for assessment for treatment simply by refusing their consent to that detention.  

An AMHP faced with such an objection has a variety of options. Sometimes that objection may simply be because the nearest relative is faced with a difficult decision about a loved one and feels that they must object. If so, they can relieve themselves of the difficult decision by delegating their functions as nearest relative to someone else - not necessarily the next nearest relative on the s.26 list. The delegation must be in writing and must be given to the patient. The process (although there is not much more to it) is spelt out in Reg.24 The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008.

The Act allows the AMHP not to consult where it appears that is "not reasonably practicable". Case law says that “reasonably practicable” means both that serious and genuine efforts have been made to contact the nearest relative or that consulting the nearest relative has been assessed as being likely to cause significant emotional distress, a deterioration in the patient's physical or mental health, or their exploitation, whether physical or financial. However, the onus is on the AMHP to contact the nearest relative, and their notes must clearly record their efforts to do so and their reasons if they decide not to do so. The leading case is R (on appli E) v Bristol City Council (2005) EWHC (Admin).

However, where the nearest relative has objected the AMHP (amongst others) section 29 of the Act allows an AMHP to ask the local County Court to substitute the existing nearest relative with an alternative. Section 29 sets out the process so I will simply highlight some practical points. It is the AMHP, not the local authority, who is the applicant. One or more of the five statutory criteria set out in the section must be proved to the Court. The application is made under Part 8 of the CPR on Practice form N208. Para 18.1 of Practice Direction 8A CPR gives the details. Note that although that PD says that the nearest relative must be made a respondent, the court has the power to order otherwise.

Finally, it sometimes happens that a patient is being detained under section 2, authority for that detention is due to expire very shortly, there has been a recommendation that patients continue to be detained, this time for treatment under section 3, but the nearest relative has objected. The pressure is therefore on for a section 29 application to be made as soon as possible so that existing nearest relative can be substituted with one who does not object, and for that to happen before the existing section 2 expires. Section 29(4) of the Act says that if there is a section 29 application “pending” then the period of detention under section 2 is extended until the section 29 application is finally dealt with. However, s.29 (4) can only be used if the application is made under specified statutory criteria.

Derek Jones is a Solicitor in the People Department at Essex Legal Services.