There are several steps which can be considered:
a) An application to displace an objecting nearest relative under s29 of the Mental Health Act 1983, can be made to the County Court on very short notice to the court, and an interim suspending order can lawfully be made, without notice to the relative, to suspend their Nearest Relative rights pending the determination by the judge as to whether they should be permanently displaced or not, which may take some time (see Central London County Council, ex p Ax London (CA))
Once that order has been obtained, the suspended Nearest Relative would no longer be able to object to guardianship, and if the condition and predicament of the vulnerable person was otherwise suited to that regime, which would, of necessity, already have been concluded by the professionals, (the test is laid down in s7 Mental Health Act 1983), the authority could constitute itself the guardian of the individual and then act in the client’s best interests.
The Court of Appeal has said that an application to displace on an interim basis without notice should be a very rare step, but it may be necessary and is a legitimate means of adult protection which should not be overlooked.
b) Secondly it has been suggested that if an authority has contracted for the care of a vulnerable person (vulnerable through mental incapacity), then the home provider owes a duty in the law of negligence to that person, and may be contractually bound to provide care and attention to the person. Moreover, such proprietors have the right to exercise the private sector landowner’s rights to refuse access to his or her premises to anyone they choose to exclude.
Consequently, it may be possible (it has not been tested in court) and legitimate for a commissioning authority, in its role of full time carer, to instruct its provider not to allow access to a particular individual if there is thought to be a risk to the client or to other people should the person be allowed over the threshold. In our view, this should only be done in an emergency and on tangible evidence of significant risk, not as a long term means of keeping relatives, spouses or friends apart. Declaratory relief will be necessary if a longer term issue as to contact with or without supervision, between two people, one of whom is mentally incapacitated, needs to be explored.
c) Emergency protection in declaratory relief proceedings is available by way of an interim injunction, over the phone if necessary, once the authority or other claimant has undertaken formally to issue proceedings as soon as possible. This might be an appropriate step to take if a person is attempting to remove someone from residential care, or an authority is attempting to remove a person from their own home – either the authority in the first case or a carer in the latter, could apply for an injunction. The police will generally be willing to assist in the enforcement of an injunction in such circumstances and have been known to stop vehicles escaping from the scene of a ‘kidnap’ of an incapacitated vulnerable elderly person by a relative.
The out of hours phone no. of the High Court, through which this and guidance are available, and through whom the Official Solicitor may be contacted, is. 0207 947 6000.
In so far as c) above is concerned, it should be noted that unless the patient has enough mental capacity to manage property and financial affairs, (which is unlikely if it is being seriously contended that the person lacks sufficient capacity to make a decision related to daily living, or to medical treatment) the patient must have a litigation friend to conduct his or her part in the legal proceedings which will ensue after emergency injunctive relief has been obtained.
This need not be the Official Solicitor, but in cases where abuse is being alleged, the most obviously close person involved with the client may be the suspected abuser, and then there would be a conflict of interest, and the Official Solicitor would be an obvious choice and can be appointed by Court Order. If the office is strapped for staff to conduct the proceedings, the office of the OS will instruct a solicitor in private practice to act as the solicitor in the traditional sense, and the OS will take on the pure role of litigation friend, instructing the solicitor, having been advised as to the progress of the proceedings and the issues at stake.
d) Section s135 of the Mental Health Act provides as follows:
If it appears to a justice of the peace, on information on oath laid by an approved social worker, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder:-
(b) being unable to care for himself, is living alone in any such place,
Therefore so long as the patient is believed to be suffering from mental disorder, concern as to their well-being on the basis of information sufficient to at least count as evidence, is enough to justify use of a s135 application to force entry. It also gives a power to convey to a place of safety to the police constable. It is not essential to the validity of any such application that the ASW wishes to consider admitting the person to a mental hospital. It is enough that this or other arrangements might ultimately be made for the person’s treatment or care.
e) Section 136 of the same Act provides that if in a public place, a constable finds a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety.
A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care. These do not have to be Mental Health Act s2 or 3 arrangements.
It is worth noting that s137 of the Act provides that any person required or authorised by this Act (ie under s135 or 136), to be conveyed to any place or to be kept in custody or detained in a place of safety, counts as being in legal custody, while being conveyed or detained.