client is detained under section 3. The AMHP consulted the client’s mother and identified her as the nearest relative. However, when I spoke to the client, he stated that his father is the older of the two parents and should therefore be the nearest relative. Does this make the section invalid?
To give the classic lawyer’s answer - “maybe.” It really depends on the facts and you’d need proper legal advice for a clear view.
Sometimes AMHPs do get the Nearest Relative wrong. But if they reached that conclusion reasonably on the information they had at the time, then the application can still be considered “duly made” under s6(3).
It’s worth looking into. That said, in practice, if the actual NR isn’t objecting, then even if this section 3 were technically invalid, the hospital would almost certainly use holding powers while arranging a fresh section 3 anyway.
Are the parents married? If not, the father may not be the Nearest Relative if the patient is over 18. Parental responsibility is defined in the Children Act 1989 and stops on the 18th birthday unless the child has been adopted. So it is open to dispute whether an unmarried father can be the Nearest Relative with most legal authorities arguing they cannot be.
As has already been mentioned, if the AMHP checked and was acting in good faith then their actions are defensible. Therefore, if the local hospital decides not to uphold the S3 then there is nothing stopping the use of s5 where a further assessment can be arranged.
Identification of nearest relative - Mental Health Law Online