A patient’s nearest relative is laid down in s26 Mental Health Act, in a list with a hierarchy of first to last, by reference to the closeness of the relationship.
Before guardianship can proceed, there is a requirement to contact the nearest relative and inform them of the proposal, and to give them a chance to object – see s11 MHA.
This obligation is not absolute even on the face of the Mental Health Act, because it depends on what is reasonably practicable. The Mental Health Act Code of Practice has always held to the line in guidance that this means what is reasonably possible, not what is reasonable in the wider sense of desirable as well. Yet the word is not ‘possible’, nor ‘practical’ – it is practicable’.
This ambiguity is important in view of the obligation now in force in s3 of the Human Rights Act to read and give effect to all legislation (wherever possible) as if it were worded in a way which is compatible with Convention Rights under the European Convention.
In a case in front of the Strasbourg Court (the European Court of Human Rights) the British government had already formally conceded (before the UK Human Rights Act came into force – seeJ.T. v The United Kingdom) that the fact that there is no scope for the patient him or herself to change their own nearest relative, is incompatible with the human right to respect for private life and physical and moral integrity, under article 8 of the European Convention. The government has promised changes in the new Mental Health Act but a new Bill was not part of the most recent Queen’s Speech, so is some way off, in terms of timing. The concession was made in respect of changing the nearest relative, under the s29 provisions in the Mental Health Act, not the contacting provisions, but the point must we think hold good for the initial contact as much as it does for the continuation of the nearest relative’s status. The UK High Court has since declared sections 26 and 29 MHA 1983 to be incompatible with article 8 of the Convention, in that they do not allow, either personally or indirectly, to challenge the appointment of a nearest relative (see M v Secretary of State for Health). The Court pointed out that that incompatibility had been identified some considerable time ago and that its removal, as anticipated in the JT v UK settlement, had not taken place.
Now s3 Human Rights Act 1998 is in force and binds all public bodies to stretch or constrain their reading of statute to match Convention principles, it seems to us to be highly arguable that the word ‘practicable’ in the Mental Health Act provisions about contacting the nearest relative is sufficiently broad and ambiguous to justify stretching it to incorporate notions of desirability as well as pure practicality. Thus we have advised authorities that their ASWs should already be listening to the patient’s objections to contacting the nearest relative, before the ASW acts in a way which might be challengeable at the suit of the patient.
We are not suggesting that the ASW must always accede to the objection, but we do believe that the human rights compatible form of conduct now is to weigh up the thrust of the objection, and come to a view as to the reasonableness of it, and then make the decision whether or not to make contact.
However, we must stress that it is also arguable, in light of the government’s concession before the ECtHR, (albeit before the s3 obligation came into force by reason of the UK’s Act’s coming into force) that the provision was contrary to human rights, that this is a provision which is still binding on UK public authorities until amendment is made, even if it is incompatible with article 8. If that were to be the line taken, by a UK court, now, then any authority employing an Approved Social Worker who had made contact with a nearest relative, notwithstanding the patient’s objection, would have a defence to a claim (here, at least) for damages for action incompatible with Convention Rights, based on s6(2) of the Human Rights Act 1998.
There are two references in the legislation to what is reasonably practicable, in relation to the nearest relative. The first is in the procedural requirement that the approved social worker should have taken all steps as are practicable to consult and inform, and the second is that the fact that it is not reasonably practicable to ascertain whether a patient has a relative, or who that relative is, is a ground for applying to the County Court to substitute someone else or the authority to take on the statutory protective functions of the nearest relative.
It is important to note that the validity of an admission to guardianship, or hospital for that matter, does not turn on the ASW’s getting in touch with the correct nearest relative. The ASW must go on what appears to him or her to be the case, and merely take reasonable steps to identify and contact the right person. In Dewen v Barnet Healthcare Trust and Barnet London Borough Council it was held that a person who was not the eldest child of a patient, could still qualify as the ‘nearest relative’ under s26 Mental Health Act 1983, for the purposes of an application for admission under s3 MENTAL HEALTH ACT 1983, if that person’s care of their relative was more than minimal. The court felt that it could not, and should not, inquire into the reasonableness of a social worker’s decision as to whom the nearest relative appeared to him to be, only into the honesty of his assertion. However, in Simpson-Cleghorn v Lancashire County Council it was held that where a social worker had knowingly falsified a s3 application form (by putting someone’s name down as the nearest relative when it was in fact known that that person was definitely not the nearest relative according to the statutory hierarchy, in order to procure a patient’s admission to hospital), the patient was entitled, by virtue of s139 Mental Health Act, to leave to sue for damages for want of reasonable care and wrongful detention.