Defective Form A6 if reason for proceeding without consulting NR incomplete?

Law and practice Mental Health Act
1

Good afternoon.

I’d be grateful for views on a nearest relative issue in a s3 case.

Facts:

  • Patient already detained under s2 when s3 application made.

  • Form A6:

    • AMHP records NR not consulted on the basis they are “unable to identify NR”.
    • AMHP has not completed the section setting out the statutory justification for proceeding without consulting the NR (“not reasonably practicable”, “unreasonable delay”, or reasons) and just put a line though this part of the form.

  • AMHP report (same date):

    • Identifies a brother as likely NR.
    • Patient refused to provide contact details / objected to involvement.
    • Conclusion recorded that no NR could be consulted (effectively due to lack of information and no cooperation from patient)

Question:

  • Is this:
    • a defective application (invalid s3) because it has proceeded without giving justification for doing so without consulting the NR and/or stating unable to identify who is the NR in the Form A6 but stating a reasonable belief that it is the brother, or
    • a rectifiable irregularity eg if the Form A6 is read alongside the AMHP report?

Thanks for your time!

2

I would tentatively suggest that the irregularity probably wouldn’t render the section paperwork invalid. What would matter if challenged in the Courts is the actual position that the AMHP was in and whether it was reasonably practicable to identify/consult the NR (the discussion about what this means in TW v Enfield is helpful). Essentially, whether the requirement under S.11(4) was substantively complied with.

I don’t think the lack of explanation in the A6 Form is fatal but the discrepancy could raise concerns if the patient suggested they were not asked for their brother’s contact details. The RA might want to investigate why the position is different, and assure themselves that the application was made in good-faith.

3

I would want to know how much of the Section 2 was remaining.

If there are several hours, let alone days left, then I would be concerned if the AMHP has not documented to what extent that AMHP went to locate the NR. Not having a telephone number is only one point of contact, how about the address? Were there any other relatives who would have had this information. My view, you do not readily set aside the safeguards of the NR objection, to do so would be incompatible with article rights, see Section 6 HRA 1998.

4

I should have added, as Zac stated above, though with a little more confidence, that the application is not defective. When I was an AMHP, if I was not able to consult with the NR, I made it clear in my report the reasons why, and the extent I went to, recording the time I abandoned the search or attempts to contact the NR.

5

It’s all in that weasel word “likely” isn’t it?

As the AMHP we have the advantage that the person we conclude to be the nearest relative only has to appear to us to be that person, but the test is not mere probability.

Unable to identify the nearest relative is not after all to be used in cases where there is no qualifying candidate, nor does it have to be explained on the form. An explanation is only required in cases where the nearest relative is known but has not been consulted.

I have certainly been in the situation where there are plenty of potential nearest relatives but it is just not possible to identify which is the one, perhaps because it’s not clear who is elder or eldest, who is living in the UK currently, or who is living with the patient or providing more than minimal care. I may know of only one candidate but strongly suspect there are more, about which I would like to know.

It’s almost always because there isn’t either time or opportunity to discover these things, and although any s.3 in such cases should always have been referred for consideration by the AMHP in good time to look into this question, amongst others, and here there’s been the whole duration of the s.2, the fact is that often s.3’s are recommended at the last minute and no work has been done along the way to identify the nearest relative.

In such cases it is not at all impossible that the AMHP may be unable to identify the nearest relative, from a field of such candidates, at the time they make the application; and that in the interlude between the application and the report they get better (or just some) information, even if that is only a few hours; and as in this case the AMHP clearly still not to feel confident enough to state that the brother appears to them to be the nearest relative.

There is a lot more to be said about this process from the AMHP and the patient’s point of view; but just two things to conclude.

The nearest relative is a statutory safeguard of critical importance especially for the s.3 and the change to the nominated person who may be overridden in the 2025 amendments is greatly to be deplored on that account: the AMHP should bear in mind that whilst they cudgel their brains and work the 'phones to get the nearest relative absolutely right, only perhaps to exercise the rather nice judgement that they still aren’t quite sure, the patient is without this safeguard.

The nearest relative also has a statutory role of great importance during the span of the s.2 detention as they may exercise their power under s.23 to discharge. Assuming the AMHP was unable to identify a nearest relative at the time of the s.2 application also, I do have a lot of respect for those-I think relatively few-MHA Administrators who do press the point, with the AMHP and others, to get a nearest relative identified during the s.2 admission and so put the safeguard in place.

Like NG, I don’t on the face of it see a necessarily defective application at all, however.

6

My initial view is that this looks more than a minor clerical error. If the AMHP believed the brother was the nearest relative, stating “unable to identify” on Form A6 appears inconsistent with the report. If consultation wasn’t possible because the brother couldn’t reasonably be located, the appropriate statutory justification should have been recorded. Whether this makes the application invalid or amounts to a rectifiable irregularity would likely depend on whether the statutory requirements were substantially complied with.

7

Good points made in the above responses- I would also add that the AMHP role in the MHAA should continue, to try and establish who the N/R is, notify and consult with them, send them all the relevant brochures about their role, and a letter detailing their statutory rights, very importantly showing that these steps had been taken and notifying the Hospital Managers in writing. I’ve worked in an AMHP in different areas and have appreciated when Hospital Managers have chased me up regarding this. Very helpful if challenges are made re legality at a later date in MHT etc..