Another review

Another of my books, The Nearest relative Handbook, was reviewed recently in the Solicitors Journal. The reviewer was David R Pickup, a barrister who practises from St Johns Buildings chambers in Manchester. This is what he wrote.

A client telephones the office and tells you that Aunt Flo is demented and no one will help get her into hospital. Aunt Flo then phones you and asks why the nice social worker is talking to her husband about getting her admitted. You finally succumb to the pressure of it all and get sent to the hospital for distressed lawyers and you want your nearest and dearest to get you out and back to the office.

These scenarios are all about the role of the nearest relative. A phrase used in mental health law for the important person who has a function in admissions where a patient does not agree to detention and also in discharge. This is not to be confused with next of kin, which has little reality in law or otherwise, but is readily understood by most people.

This book covers the complex subject in an excellent way. It is clear and full of case studies which illustrate the point well. The law has changed recently with amendments to the 1983 Mental Health Act and these are discussed. In the book we find who the nearest relative is and how the law treats who is the best person to be consulted about admissions, who can object, who can request an assessment for admission and in some cases request a person’s discharge. A person can be removed if not suitable to act in this role.

The law has been updated to introduce equal treatment to same sex relationships, which the book also covers. Mental health lawyers will find this an extremely useful reference.

Nearest relative objections

bbc.co.uk/cult/treasurehunt/

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?

Seconds out ...

The second edition of my book, The Nearest Relative Handbook, is now available.

The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.

The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.

The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.

Review of the first edition were very favourable. They include:

An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School

This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law

The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre

There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal

The second edition of The Nearest Relative Handbook is published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here

Nearest, dearest

The new Mental Health Act will change the way we see the nearest relative.

Now the Mental Health Act has been amended, it will provide new systems for the selection – and most importantly, the removal – of a patient’s nearest relative.

Background
Where a person has mental disorder, her nearest relative (NR) has firm powers and entitlements: to apply for her to be detained under the Mental Health Act 1983 (MHA) or discharged, for example, and to be informed about an admission under section 2 or object to a proposed admission under section 3. The fact that a patient could not choose her NR was therefore a matter of great concern.

Some people even claim to have been abused by their NR, and the prospect of that person being involved in her life can prove detrimental to a patient’s mental health. Almost a decade ago, the Government acknowledged that this state-of-affairs might breach human rights, and it promised the European Court of Human Rights(ECtHR) that it would give patients more of a say in the selection of their NR. (FC v United Kingdom, Application no 37344/97, Decision of 7 September 1999; JT v United Kingdom, Application no 26494/95, Decision of 30 March 2000) The recent changes are an attempt to fulfil that promise.

Because the changes were so long in coming, practitioners began to devise ad hoc solutions of their own. Some, for example, argued that where abuse was alleged, it was “not reasonably practicable” to consult a NR about a patient’s proposed admission under section 3. (MHA, s 11(4)) Though this approach was considered dubious, it has been approved by the High Court. (E v Bristol City Council, [2005] EWHC (Admin) 74) But it is only a partial solution to the problem: even if he need no longer be consulted, a NR will continue to enjoy all the other powers and entitlements of the role. A more comprehensive solution was clearly required.

The changes
The amendments to MHA 1983 were made by the Mental Health Act 2007. The first one had little to do with the Government’s promise to the ECtHR. Since 1 December 2007, where two people are in a civil partnership, one has been the NR of the other. (MHA 1983, s 26(1)(a)) Most of the other changes, however, deal with the removal of the NR.

A patient can now apply to remove her NR (a right she shares with any relative of hers, any other person with whom she resides and an Approved Mental Health Professional). (MHA 1983, s 29(2)(a)-(c) & (za)) And there will be a new ground for displacement, which any applicant might use: the NR is “not a suitable person to act as such”. (MHA 1983, s 29(3)(e)) The amended Act does not say what this means.

That is not to say that ‘suitability’ has gone unmentioned. During the Parliamentary debates that produced the 2007 Act, the minister, Rosie Winterton, said, “we intend the idea of unsuitability to cover situations in which there is no effective relationship between the patient and the nearest relative, or where the relationship has broken down irretrievably.” (Hansard, 18 June 2007, col 1099) So, the circumstances in which a NR might be unsuitable will not be limited to abuse. In fact, the revised MHA 1983 Code of Practice says that an application might be appropriate if there is: "any reason to think that the patient has suffered, or is suspected to have suffered, abuse at the hands of the nearest relative (or someone with whom the nearest relative is in a relationship), or is at risk of suffering such abuse"; "any evidence that the patient is afraid of the nearest relative or seriously distressed by the possibility of the nearest relative being involved in their life or their care"; or "a situation where the patient and nearest relative are unknown to each other, there is only a distant relationship between them, or their relationship has broken down irretrievably." (Para 8.13)

Furthermore, the procedure by which a NR might delegate his functions to someone else is now contained in regulation 24 of The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008. (The old regulations have been repealed.) And there is new official guidance, which includes “Seven steps to identify the nearest relative”. (Department of Health, 2008, Reference guide to the Mental Health Act 1983, ch 33)

Patients now have some control over their nearest relatives and, in the most flagrant cases, can have them removed. But much of the law that pre-dated the recent changes remains in force. Though we might, for a while, become pre-occupied with the notion of ‘unsuitability’, we certainly haven’t seen the last of the question of ‘practicability’.

These changes are discussed in more detail in the second edition of my book, The Nearest Relative Handbook, which will be published by Jessica Kingsley Publishers in January 2009. More details may be found here.

A second edition ...

A second edition of my book, The Nearest Relative Handbook, will be published in January.

The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.

The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.

The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.

Review of the first edition were very favourable. They include:

An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School

This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law

The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre

There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal

The second edition of The Nearest Relative Handbook will be published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here

Another book you might find useful

The Nearest Relative Handbook
The role of nearest relative is complex and often misunderstood. This handbook offers an expert legal analysis of the role, the powers it carries and the limits of those powers. When a person is subject to the Mental Health Act 1983, many of his or her principal rights are taken away. It is the function of the nearest relative to compensate for that loss. This very accessible book explains how the nearest relative is identified and what the role can involve, and it contains a wealth of case examples and illustrative scenarios. The book provides a succinct discussion of each significant case, and it incorporates all the very latest changes to the Mental Health Act and looks at areas where further changes might be made. The Nearest Relative Handbook is the first full-length reference work to tackle this subject systematically and comprehensively. It will be an invaluable aid to those who find themselves in a professional relationship with a nearest relative, to those who are or wish to be a nearest relative, and to anyone needing to make sense of the relevant statutory provisions. This book is published by Jessica Kingsley Publishers. If you would like more information about the book, or if you would like to order a copy, please go here or contact me at tendency@btinternet.com

Reviews

“An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject.” Phil Fennell.

“Hewitt looks first at the development of the role of nearest relative, where it is now, the problems it presents and how these are likely to be resolved … The rules are comprehensively worked through and the examples clear.” Tony Eaton, International Psychogeriatrics.

“This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area.” Robert Brown, Journal of Mental Health Law.

“There can hardly be a professional concerned with the Mental Health Act and its practical application who will not benefit from having this book to hand.” B Mahendra, New Law Journal.