Friday, 4 January 2013

Powers, Rights and Functions of the Nearest Relative

The Masked AMHP (with briefcase) informs the Nearest Relative of their rights -- with hilarious consequences. Publicity shot for the West End Hit “Principal Changes in the Mental Health Act 2007 – Missus!”
 
The Nearest Relative, as defined within the Mental Health Act, has an important role to play.
 
The Reference Guide (Chapter 33) states:
 
“33.2 The Act confers various rights on patients’ nearest relatives in connection with detention, supervised community treatment (SCT) and guardianship under the Act.
33.3 These include rights to:
• apply for detention or guardianship;
• object to approved mental health professionals (AMHPs) making applications for admission to hospital for treatment or for guardianship; and
• (with various exceptions) discharge patients or (in certain cases) apply to the Tribunal instead.
33.4 Nearest relatives are also entitled to be given information in respect of patients in a variety of circumstances.”
 
Let’s have a look at these rights and powers in more detail.
 
The Nearest Relative’s power to apply for detention or guardianship
The NR has had this power since the 1959 Mental Health Act. Having practiced under the 1959 Act for a couple of years, I am aware of anecdotal accounts of  Nearest Relative applications under the 1959 Act. While rare, they were certainly not unheard of. The ones I knew about generally seemed to involve some form of skulduggery by the Consultant Psychiatrist who was making the assessment, who conveniently provided the forms for the NR in the knowledge that, had they asked a Mental Welfare Officer, as they were known in those days, the MWO would have been unlikely to have made an application.
 
Given that the whole point of Approved Social Workers (and AMHP’S) was to provide a professional with extensive knowledge and expertise in mental health and the law relating to mental health who wasn’t a doctor, it was something of a surprise to me, and to others, when the 1983 Act did not abolish the right of the NR to make an application.
 
It was even more of a surprise when the 2007 Act, which amended the 1983 Act and created AMHP’s, also did not abolish this right.
 
The Act and the Guidance to the Act cannot seem to quite make up their minds as to whether or not to approve of one relative sectioning another relative. The wording of the Act always gives either/or AMHP or NR. The Reference Guide, however, states:
 
“AMHPs must make an application if they think that an application ought to be made and, taking into account the views of the relatives and any other relevant circumstances, they think that it is “necessary and proper” for them to make the application, rather than the nearest relative (my italics)” (2.36)
 
This almost seems to imply that an AMHP has to make a specific reasoned decision to make the application themselves, rather than letting the NR do it as the default.
 
However, the Code of Practice seems to have a much firmer view on the use or otherwise of the NR in these circumstances. 4.28. states:
 
“An AMHP is usually a more appropriate applicant than a patient’s nearest relative, given an AMHP’s professional training and knowledge of the legislation and local resources, together with the potential adverse effect that an application by the nearest relative might have on their relationship with the patient.”
 
It further goes on to say:
 
“Doctors who are approached directly by a nearest relative about making an application should advise the nearest relative that it is preferable for an AMHP to consider the need for a patient to be admitted under the Act and for the AMHP to make any consequent application… Doctors should never advise a nearest relative to make an application themselves in order to avoid involving an AMHP in an assessment.” (4.30)
 
But then, having stated quite unequivocally the preference for an AMHP to undertake an application under the Act, it goes on to say:
 
“An AMHP should, when informing the nearest relative that they do not intend to make an application, advise the nearest relative of their right to do so instead. If the nearest relative wishes to pursue this, the AMHP should suggest that they consult with the doctors involved in the assessment to see if they would be prepared to provide recommendations anyway.” (4.79)
 
I have to say that I have some difficulty with this. If, as an AMHP, I have made the professional decision, based on an extensive assessment of all the circumstances of the case, that an application for detention is not appropriate, why would it be ethical to then advise the NR that, although you are not going to make an application, they can do so themselves?
 
Despite this being an explicit requirement in the Code of Practice, I suspect that many AMHP’s would not go out of their way to bring this to the attention of NR’s.
 
And, considering that the decision-making in many assessments is a group process which involves discussion between the medical practitioners and the AMHP, and that they then reach a unanimous decision to detain or not, for the AMHP to then suggest that the NR consults with the doctors “to see if they would be prepared to provide recommendations anyway” seems disingenuous to say the least.
 
Then the Code later on seems to contradict itself:
 
“If the nearest relative is the applicant, any AMHP and other professionals involved in the assessment of the patient should give advice and assistance. But they should not assist in a patient’s detention unless they believe it is justified and lawful (my italics).” (11.15)
 
If the AMHP and other professionals involved think that detention is justified and lawful, then the AMHP is going to make an application. If, however, they do not think it is justified and lawful, why on earth are they going to advise the NR of their powers to make the application?
 
Having laboured this point at considerable length, I have to say that neither I personally, nor any of my ASW/AMHP colleagues, have ever come across an application for detention made by a Nearest Relative. And the chances of a NR making a unilateral application for guardianship, when the local authority would have to give its approval, seems even more unlikely.
 
Actually, I will qualify that previous statement. I have on one occasion come across the use of the Nearest Relative Application form under the MHA 1983. I'll tell you about it, if you'd like to know.
 
I was once asked to attend Charwood Psychiatric Unit to assess a patient who had been admitted the previous night. They were coy over the phone about the circumstances of the admission.
 
When I arrived, the charge nurse took a piece of paper out of the patient's file and gave it to me. He told me that when the ambulance had arrived at the hospital the previous night, the patient had it in their hand.
 
It was a most extraordinary document. It was the Nearest Relative Application form for admission under Sec.4 MHA. The form had been completed by the patient's NR, and signed. However, in the space for the NR to state the reasons why a second medical recommendation could not be obtained, the patient's GP had written: "I hereby certify that this patient needs to be detained under the Mental Health Act." The GP had then signed and dated it.
 
There was another unusual thing about this document. It had been torn into several pieces, and then sellotaped back together again. It was explained that when the admitting nurse had examined the documentation, their first response was to tear it up and throw it in the bin. However, they had then later regretted this, and had tried to put it back together again.
 
In any case, it did not provide authority for the patient's detention.
 
This is probably a good illustration of why it is generally best to leave the assessment to an AMHP.
 
In practice, the NR is usually very thankful that the AMHP is taking the initiative and making the decisions about detention. Most NR’s would be very unhappy about being responsible for the detention of their relative, and with reason think that doing this could jeopardise their future relationship with the patient.
 
The NR’s right to object to an application for admission for treatment or guardianship
This is something I’ve covered extensively in other posts on this blog. (See here and here.) Both the Act and subsequent case law make it very clear that the AMHP must take considerable steps to attempt to consult with the NR, as the courts take very seriously this right and expect the NR to been given the opportunity to exercise their rights in this respect.
 
Of course, if the NR does object, there are remedies; in particular, the AMHP can go to court and have the NR displaced, if they are considered to be acting unreasonably. However, this is something of an intimidating and onerous task for a beleaguered AMHP, and they are unlikely to get a lot of help from their legal department.
 
The NR’s right to discharge a patient
While the NR has a right to apply to the hospital managers for the discharge of their detained relative, a number of impediments are placed in the way of achieving this. Sec.25 states that they must give 72 hours’ notice in writing to the managers of the hospital. However, even were the NR to do this, the psychiatrist then has 72 hours to block the application.
 
Although this is something that AMHP’s have a duty to inform the NR when they make the decision to detain someone, in practice, if they ever tried to exercise this right, all the patient’s psychiatrist has to do is fill in  Form M2, “Report barring discharge by nearest relative”. The consequence of this is that “any order for the discharge of the patient made by that relative in pursuance of the notice shall be of no effect”, and as if that is not enough to deter the NR, “no further order for the discharge of the patient shall be made by that relative during the period of six months beginning with the date of the report.”
 
So all in all, the rights of the Nearest Relative are far less straightforward than the Reference Guide would imply, and there are a number of impediments to their exercise of these rights which can mean that they are often of little practical use.

4 comments:

  1. Great posts as always but also: Top marks for use of the word skulduggery

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  2. great post by the way currently involved in an application to displace a nearest relative and glad to say our legal have been a huge help

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  3. What do people think of the following situation? At a recent assessment I identified the Nearest Relative of a patient as his next oldest sibling (he was living in a care home; had never married and had no adult children and his parents had died some years ago. He had three younger siblings and as mentioned above I identified the next oldest as NR. However neither the patient nor his other two siblings had had any contact with the NR for decades and had no address or even knew if he was still alive. I indicated on the section papers that I had been unable to identify the NR although this was not strictly true - I knew his name but just did not have an address for him. I told the other siblings who have contact with the patient that they can apply to the county court to displace or that if the brother gets in touch he could nominate them. Would other AMHPs include the name but leave the address blank on the application form or do as I did?

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  4. I would do as you did as i would suggest it is easy to explain why you did this as the NR role is to protect the patients rights and the eldest sibling would undoubtedly not be interested or may not even be alive.

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