When is a Nearest Relative’s objection to guardianship (or detention) ‘unreasonable’ for the purposes of s29 of the Mental Health Act 1983?

Under s29 of the Mental Health Act, the County Court may by order direct that the functions of the nearest relative of the patient under the Act shall be exercisable by the applicant, or by any other person specified in the application. That person has to be a person who, in the opinion of the court, is a proper person to act as the patient’s nearest relative and is willing to do so.

The application has to be made in accordance with the provisions of the section. Only certain people can apply to displace the true nearest relative and substitute another: the application can be made by

(a) any relative of the patient;

(b) any other person with whom the patient is residing or, if the patient is then an in-patient in a hospital, was last residing before he was admitted; or (c) an approved social worker (ASW);

If the ASW applies, the applicant for the role is treated as being the local social services authority.

It will be immediately apparent that the individual patient is given no right to apply to displace their own nearest relative, and this has been a grave concern to government and mental health practitioners because of the perfectly foreseeable possibility that a patient may have spent their whole life successfully avoiding their statutory nearest relative for sensible reasons. The government has already admitted in front of the European Court (see J.T. v UK) that this provision’s lack of scope for the relative him or herself to change their nearest relative is incompatible with article 8 of the Convention, but the promised changes have not yet been brought into force, and thus there is no scope yet in terms of statutory grounds for displacement, for patients even to request their ASWs to make the application.

A displacement application can only be made on certain grounds.

(a) that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is;

(b) that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;

Note that where this is the case, it is not simply the next nearest relative who necessarily takes over the role.

(c) that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient; or

(d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital, or guardianship under this Part of this Act, or is likely to do so.

In >Ingram v Manchester City Council, the court held that in deciding whether the test for displacing the nearest relative has been met, the court must objectively assess the nearest relative’s objections and ask itself what a reasonable person in the nearest relative’s position would do in all the circumstances (not whether the actual NR in a particular case was behaving in a way he or she believed to be reasonable). From the clinical evidence before the court, it was clear that the judge at first instance, having found that the mother of a mentally ill man would not co-operate in the treatment of her son for mental illness, was entitled to direct, pursuant to s29, that the function of the nearest relative be handed over to the local social services authority.

Since the test is an objective one, it is presumed that a reasonable NR will give great weight to what is best for the patient. The question for the court is does the objection come within the band of stances that are objectively reasonable, NOT whether it is a ‘correct’ or ‘incorrect’ stance or one with which the judge actually agrees. But the objection must be evaluated in the light of the criteria for the particular application being made. Therefore, if guardianship is being sought, and the NR takes the view that the person does not come within the criteria for guardianship, that might be reasonable grounds for objection, however beneficial it might otherwise be for the person to be made subject to the regime.

In a relatively recent case (#), a man with a head injury had made threatening phonecalls to medical professionals in the wake of unsuccessful plastic surgery for his forehead scar. He was taken to a place of safety and then detained under s2 of the Act and moved to a secure unit, where the s2 admission was converted to a s3 admission. Whilst there he received no treatment besides nursing and there was no change in his condition. Three months later he appealed to an MHRT where the professionals strongly disagreed as to whether the criteria for continued detention were made out. He was discharged because the Tribunal found that he was not so ill as to warrant continued detention. The next day, the doctor whose views had been rejected by the Tribunal called a case conference. A new social worker was prevailed upon to obtain a warrant from the magistrates’ court for his further arrest, even though the man had done nothing since his discharge. Two doctors certified he was sectionable. The social worker visited the mother, who made it plain that she objected to her son being detained in hospital. The judge heard the authority’s displacement application regarding the mother, while the man remained at the police station. The court granted the order, allowing the council to be appointed in place of the mother. On appeal, the evidence of the professional who had supported discharge was finally heard. The most important pieces of information, with regard to assessing the reasonableness of the mother’s objection, were that she had consented originally to her son being admitted under s3; he had been discharged by a Tribunal, and had done nothing wrong in the week he had been at home. The judge decided that the objection therefore had not been unreasonable.

 

Making a displacement application on either of the last two grounds, before a s2 admission for assessment expires (28 days) has the effect of extending the period until the displacement application has been finally ‘disposed’ of (this includes a concluded appeal hearing or (firstly) the time for allowing an application to appeal); and further, for 7 days more, if the displacement judge or appellate judge finally makes a displacement order.

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