Does anyone know of case law that defines my questions or know of good practice instances . Thankyou in advance .
Must an AMHP contact the Nearest Relative of a person who is on leave from hospital (not detained under MHA or on sec 17 leave) and being triaged for a mental health act assessment if the AMHP believes that contacting the NR could put the NR at risk. Would it be reasonable to request Home Treatment Team or equivalate to visit first. HTT has good connection with Patient and NR
TW v LB Enfield relates to a patient’s right to privacy v the Act’s requirement to inform an NR
Not directly applicable, but you might find something useful
I assume you are thinking the AMHP is considering a s3 application and has a duty to consult the NR unless it is impracticable. I agree you should read the Enfield judgement on right to privacy - but this does not prevent the AMHP asking the NR if they object. If a s2 is contemplated then the AMHP can go ahead without contacting the NR- just inform them of the outcome. Either way the AMHP may decide to respect p’s wishes and not discuss anything else with the NR (they usually know all the private stuff the p wants kept from them anyway)
Hope that helps
T
This is really tricky for today’s AMHPs. Back in 2007 I was an ASW working with a service user of my CMHT and his mental state deteriorated such that I had to detain him under Section 3. In his case the Nearest Relative had only just come out of hospital herself one week earlier and my consulting with her could have led to a quick relapse and re-admission to hospital so I did not consult and recorded my decision.
However, the Enfield Case in 2013, which has been quoted in one of the replies in this thread, changed everything. The judge expected AMHPs to consult Nearest Relatives in all but very serious circumstances (such as the NR having been sexually abusive to p for example) and cited Article 5 rights for the patient to legal assistance, the NR being seen by the judge as an important part of the MHA 1983 that provides for advocacy and gives the NR rights to discharge p for example.
So my conclusion for your query is that the AMHP needs to work out what degree of harm would be caused to the NR and why. There are no legal case precedents that I could find in the particular circumstances you describe so the AMHP in my opinion needs to follow the Enfield Case guidance. If the AMHP comes up with a very serious risk with consultation with the NR they can always suggest, if there is any time, that the NR delegates the role to someone else if they are able to. Ultimately this AMHP needs to check with their local authority legal section for the last word.
The test in Enfield is one of proportionality when the AMHP is required to stike a balance between the the patient’s Art 5 and Art 8 rights. In stiking that balance the court will accord the AMHP a wide margin of judgment as to what is proportional.
Thank you all for your very iseful answers that i will be able to use the info from .
Tony