The nearest relative in the Mental Health Act 2007: still an illusionary and inconsistent safeguard?

Abstract

The role of nearest relative (NR) is intended as a safeguard in the Mental Health Act 1983 (as amended in 2007) to curb the excesses of professional discretion and protect patients from unwarranted compulsory hospitalisation. It is unique to the mental health compulsory detention process in England and Wales. There are, however, evident tensions in the role and a lack of clarity surrounding the precise functions of the NR. There is also some uncertainty and confusion among practitioners about the scope of the NR involvement, and government plans announced recently to review mental health legislation will include a focus on the role of family and carers in the care of detained patients. Despite long-standing concerns about the role, there is remarkably little published research available to date on its use and effectiveness, in so far as evaluating the extent to which it provides an adequate safeguard for patients, as intended by the legislation. This article will briefly explore the background to the role, highlight some of the difficulties and tensions within it and conclude with some observations about where further research and reform may be needed to provide greater protection and clarity for patients, relatives and health and social care practitioners.

Keywords:

• Mental Health Act
• nearest relative
• patient rights
• safeguard
• Approved Mental Health Professional
• families and carers

Notes

1. The term ‘patient’ is used here, as opposed to service user, in line with the terminology used in the MHA.

2. Located at https://www.gov.uk/government/consultations/carers-strategy-call-for-evidence (accessed 9 April 2017).

3. See https://www.gov.uk/government/publications/mental-health-act-independent-review/terms-of-reference-independent-review-of-the-mental-health-act-1983 and Queen’s Speech 2017 (21 June 2017) located at https://www.gov.uk/government/speeches/queens-speech-2017; ‘Conservatives pledge to scrap “flawed” Mental Health Act’, Community Care, 8 May 2017.

4. The Approved Mental Health Professional is a specialist role held by a social worker, occupational therapist, mental health nurse or chartered psychologist who is specially trained.

5. Alongside the Mental Health Act 1983: Code of Practice (DoH, 2015a) and Reference Guide to the Mental Health Act 1983 (DoH, 2015b).

6. Section 26 lists a hierarchy of relatives, who will be considered to be the NR, though note that ‘cousin’ and ‘great’ uncle or aunt are excluded, unless appointed by the court.

7. Admission for treatment in hospital for up to six months.

8. Application for guardianship in the community.

9. The term challenge is used here to describe the fact that the NR can seek to access a mental health assessment and appropriate (i.e. the least restrictive) treatment /care for the patient.

10. Under Sections 23(2) and 25.

11. Up to 28 days for assessment.

12. Up to 6 months for treatment.

13. Section 66.

14. Section 72.

15. Application for assessment in hospital.

16. Short-term/urgent admission to hospital.

17. Section 11(5).

18. S. 13(1).

19. Sections. 132 & 133.

20. Those subject to either Section 35, 36, 38, 41,45A 47, 49 MHA or a combination do not have an NR.

21. [2011] EWCA Civ 4.

22. [2005] EWHC 74.

23. Ibid. at [9]. Though note that this case must now be read in the light of TW v Enfield BC cited below.

24. [2014] EWCA Civ 362.

25. [2000] ECHR 133; See also M v UK 30357/03 [2007] ECHR 206]; FC v UK (1999) 37344/97 [1999] ECHR 184.

26. See, for example, judicial dicta in R (MH) v Secretary of State for Health and others; and R(S) v City of Plymouth [2005] UKHL 60.

27. House of Lords, Written Question, HL 5380 (8 February 2017), available at http://www.parliament.uk/written-questions-answers-statements/written-question/lords/2017-02-08/HL5380.

28. In contrast to the medical model which locates the disability within the disabled person, and views disability as an impairment within the individual that requires treatment or intervention.

29. See, for example, ‘Article 47 of the Charter guarantees a “fair and public hearing within a reasonable time by an independent and impartial tribunal”, but is not restricted to “determinations of civil rights and obligations”’ like Article 6 ECHR. This is deliberate: correspondence with ECHR-guaranteed rights does not preclude ‘more extensive protection’: see Article 52(3) of the Charter’ in Fordham. M., Common Law Rights, pp. 4 and 8, available at http://www.publiclawproject.org.uk/data/resources/76/PLP_2010_Fordham_QC_paper_Common_Law_Rights.pdf.

30. See, for example, the Law Commission in England and Wales’ comments in its consultation paper on Mental Capacity and Deprivation of Liberty Consultation Paper No 222. (2016 London) at para. 3.22: ‘The UN Disability Convention challenges existing understandings and categorisations of disability rights. There is much in its terms to be enthusiastic about. Its full implications are still being grappled with by governments across the world’ located at http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/.

31. [2014] EWCOP B23.

32. Section 130a and 130b MHA 2007.

33. Outlined under section 130C. Those subject to emergency, short term and detention under s. 135/136 (by the police) are not eligible.

34. Section 130B (1).

35. See also DoH, 2015a, paras 4.8 and 4.38 for examples of this.

36. Section 130B (3). Section 130B (4) MHA 2007 also identifies that these powers may not be used where a patient with mental capacity refuses or where these powers conflict with the wishes of a donee or deputy appointed by the court of Protection.

37. Section 130D (5) MHA 2007.

38. Section 130B (5) MHA 2007.

39. See, for example, in the context of a displacement application R v Central London County Court ex parte London [1999] 3 WLR 1.

40. [2000] EWCA Civ 3025 at [14] and [15].

41. CO1220/2002.

42. GP v Derby City Council [2012] EWHC 1451 (Admin).

43. Re D (mental patient: Habeas corpus) (2000).

44. Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848 at [15].

45. R(WC) v South London and Maudsley NHS Trust [2001] EWHC 1025 (Admin); CV v South London and Maudsley NHS Trust [2010] EWHC 742 (Admin).

46. See, for example, GP v Derby City Council [2012] EWHC 1451 (Admin); CX v A Local Authority [2011] EWHC 1918 (Admin); GD v Hospital Managers of Edgware Community Hospital [2008] EWHC 3572 (Admin); Re S-C (Mental Patient: Habeas Corpus) [1996] 1 All ER 532.

47. See for example TW v Enfield Borough Council [2014] EWCA Civ 362 and R (E) v Bristol City Council [2005] EWHC 74 (Admin).