New trainee AMHP here. I am reviewing a case study where the patient is objecting to go to hospital and the nearest relative is abusive. What case law can be applied here and what barriers could be expected? They will be detained under section 2.
Hello Amira, the patientâs objection cannot prevent an application being made. Clearly an objecting patient cannot be admitted informally so if they are to be admitted it would need to be using a section of the Act.
Have a look at s11 regarding the duty of the AMHP to inform/consult the nearest relative, depending on which section is being used.
Any decision not to contact the (abusive) nearest relative would have to be considered very carefully as this engages ECHR article 5 (right to liberty and the NRâs power to order discharge) and article 8 (private and family life).
See TW v Enfield Borough Council [2014] EWCA Civ 362.
Hi Amira,
Good luck with the training.
So mine is not a technical reply using the act, but just something to think about.m
In 2021, as a Council Surrey received an unsubstantiated SCARF from Surrey Police outlining that a subject held suicidal ideation. The same report also stated that the aubject was in a place of safety , with family, dissented to contact, wasnât known to mental health services, but was suicidal. The Council agree the adult person held capacity to make decisions and posed no risk to others.
An AMHP ignored a gp report that there was no mental ill health, family informing the council that there was no mental ill health and their own staff saying contact would be harmful not helpful.
However the AMHP made. Decision to contact the subject late at night. The subject informed the AMHP they had no idea who the AMHP was or of their roll.
However, the point I wish to flag is that the family, in a state of shock, frustration, fear, distress and anger that any know male had ignored all legislation and family and gp statements still forced contact and caused utter distress by threatening to force entry, have the subject removed and located in a police cell.
The council recorded the family as hostile and unsupportive, simply because the family advised the AMHP they didnât require his services, were angry inaccurate personal data had been shared, were angry that an adult, with capacity that posed no risk to,others was being harassed and severely harmed by threats when the DHSC SHARE consensus and the ECHR should have protected the subject for. This abuse of power.
As a result of the Councils AMHP forced contact and threats the subject suffered a series of mini stress induced strokes, severe trauma, and a heart arrhythmia requiring two surgeries. Trust in service provision was destroyed and reputational damage was caused.
As you start on your journey as an AMHP please do remember to hold different views in mind, and family members or nearest relatives, may display different emotions based on fear or frustration with service providers that simply have no active listen skill, breach social work standards, donât follow or comply with the legislation etc.
Wishing all the best.
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I think Janeâs reply clearly illustrates the tricky calculation that AMHPs frequently need to undertake when balancing risk and rights to privacy and liberty. The ârightâ and âwrongâ response is often not simple to identify, and while the story above suggests that the response was heavy handed and caused more problems that it solved, a failure to respond to information that a person is putting themselves at severe (maybe life-threatening) risk could lead to tragic consequences.
Not to say that AMHPs must always respond automatically to every referral by setting up a full bells-and-whistles MHA assessment. They must consider all the circumstances, including the possibility that an unwanted and overzealous intervention can make a delicate situation worse.
Jane is right in pointing out that the legal options are not the only elements to take into account (though legally defensible practice is of course always a must)
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I think it is pertinent to note not only s.11 General provisions to applications and s.13 duty of an AMHP, but also s.139 Protection for acts done in pursuance of this Act.
There have been cases where AMHPs have been abandoned by their employer whilst performing duties for LSSA including generic social workers. Thus, to consider liability insurance separately to what the LSSA provides. This is usually to ÂŁ5m.
Defensive practice is not to be endorsed but sometimes that is realism. When complaints generate, some managers prefer to abandon you than support you in fear of ligation or that they own practice/knowledge based is limited.
I aways state noting DPA (2018)/GDPR keep some independent notes anonymised . Local Authorities are not always clear on this. The ICO is clear on keeping documentation which has not been registered if it is identifiable.
When things go not to plan, your defense is the AMHP report.
Others know âwhat you meanâ. I only know what words on the âpageâ mean:
a) The patient is objecting
b) the NR is abusive.
âŚyou provided no other details and I assumed nothing more. The following constitutes opinion and is not advice to you.
Abuse should be dealt with by standard procedures which would include the relative being told firmly, âStop abusing me. I have a job to do.â No case law required. AMHPs need to be fully aware that obstructive behaviour towards AMHPs (S129) engages a criminal offence attracting a liability, "[âŚ] on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 4 on the standard scale or to both." Caution: this does not mean that I am âsayingâ that âabusive NRsâ ought to be so warned.
If the abuse does not stop and it appears that the NR is unreasonably âobstructiveâ but not clearly engaging S129, then displacement procedures are well set out in the MHA 1983 and the Guide to the MHA. No case law required where Statute prevails.
The Statute is clear in S29(3) MHA as to the grounds for displacement, where carefully deemed to be necessary. Abuse from the NR is not an automatic ground for displacement.
Case law is not required in the OPâs captioned scenario which seems quite simple and covered by Statute and regulatory guidance.
For more on this topic see The Importance of the Nearest Relative in Mental Health Law â Investigative Psychiatry - subject to unapologetically fat disclaimers.