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Where a nearest relative has discharged a patient from hospital that alone might count as an objection to a subsequent detention. So said the High Court in a case which, though it was heard in February, has only recently been reported.
Objection
Under the Mental Health Act 1983 (MHA), someone suffering from mental disorder may be detained in hospital for up to six months, but only if his nearest relative (NR) has not objected to such a course. (MHA, ss 3 & 11(4)) (A county court may remove the NR from office because of his objection, but only if it was unreasonable: MHA, s 29(1)(c))
In this case, Mr M had been detained under section 3 of the MHA, even though his NR had registered a clear objection. Ordinarily, of course, that objection would have prevented use of the Act, but the Approved Mental Health Professional (AMHP) who applied for Mr M’s detention said she believed it had been withdrawn. Though the court found she was sincere, it ruled there were no reasonable grounds for her belief, and that as a result, Mr M’s detention was unlawful. (M v East London NHS Foundation Trust, CO/1065/2009, QBD (Burton J) 11 February 2009)
In reaching this decision, the court reviewed the authorities. When an AMHP intends to apply for a person to be detained under the MHA, he will usually have to tell the NR and explain why. That is so as to give the NR a proper opportunity to object to – and thereby prevent – the detention. (Re: Whitbread (Mental Patient: Habeas Corpus) [1997] EWCA Civ 1945. See also: MHA Code of Practice, paras 4.58 et seq) Adding a gloss to the existing law, the court said an AMHP need not go so far as to say to the NR, “Do you object”, unless he has been given reason to doubt whether the NR has objected or whether a previous objection (or non-objection) has been reversed. (Burton J at [36])
Previous discharges
Mr M had been admitted to hospital before, and, using the power contained in section 23(2)(a) of the MHA, his NR had purported to discharge him from detention at least twice. The court held that those discharges might also have been relevant here, as suggesting that the NR would object to any new detention.
One might criticise this conclusion, of course, for these were discharges from a current detention, not objections to one that was merely proposed, and they came some time before, in this case, that proposal was made. Nevertheless, the court said that when considering whether to admit someone under the MHA, it was part of an AMHPs’s duty to reflect upon all the circumstances of his case. Any previous discharges (and the detentions that preceded them) would form part of those circumstances. “Clearly,” the court said, “the nearer in time the previous events are, the more relevant they become, particularly if they show … a state of mind of the nearest relative which is unlikely to be changed.” (Burton J at [29]) (Because of the NR’s subsequent, unambiguous objection, these earlier events were of limited relevance in this case.)
In fact, the court accepted that the NR’s state-of-mind might change, and “there may well be many cases in which even the passage of a few hours, never mind days, might dramatically alter the view of how a patient is or should be treated in the mind of a nearest relative.” (Ibid)
It seems clear, therefore, that a NR may object to a MHA detention, even though he has previously failed to do so. The court was at pains to stress, however, that any such objection would only be effective if it was made by reasonable means and before detention had been carried into effect. (Ibid)
It is helpful to have the confirmation the High Court has provided in this case. If an AMHP’s actions are to be lawful, it seems sensible that they will have to be based upon a view that is not just genuinely held, but also objectively fair. And it will come as no surprise to practitioners to learn that an objection, or a non-objection, to detention can be reversed.
The most striking element of this decision, however, is the suggestion that a previous discharge by a NR might count as his objection to a subsequent admission. That is likely to prove controversial and it might also be burdensome. Clearly, an AMHP cannot take account of a previous discharge of which he is unaware. He might be deemed to have a duty of reasonable enquiry, of course, but another question arises: where he knows about such a discharge, is an AMHP bound to treat it as the objection of a NR who, for whatever reason, he has decided not to consult?
