Hi, if an incorrect Nearest Relative was consulted on a section 3 application ten years ago and the section 3 remains in place, in what circumstances could the section be unlawful? The application by the AMHP states that the Nearest Relative ‘who to the best of my knowledge and belief is the patient’s nearest relative within the meaning of the Act’.
1… the NR then might not be the NR now without the 10years ago one being wrong
2… identifying the NR is the one who appears to be the NR at the time… I did a s2 assessment identifying a sister of P… by time s3 assessment occurred a brother appeared on the scene who appeared to be the NR because he was older… was I wrong… was the s2 detention illegal .No… because at the time no one had mentioned an older brother… so I didn’t know about him …so couldn’t factor him in to identifying the NR
Thanks. What if the nearest relative then is still the nearest relative now but the AMHP simply got the person wrong when applying section 26 to correctly identify the correct nearest relative? I assume it would be difficult to challenge if the AMHP believed that the correct person was identified?
A… it’s a long time ago… so difficult to challenge as people will be struggling to remember what happened in the heat of an ongoing assessment… you might not even be able to find the amhp to question them and they would probably end up saying that without their notes to hand that this person appeared to be NR at the time… which doesn’t take you further forward
B… so long as the amhp has made the decision in good faith there is very little to challenge that decision on… you’d have to be going down the route of proving the amhp knew their choice of NR was a “wrong un” or that the choice was demonstrably perverse or not following the rules for selecting NR … e.g. chose a random neighbour who happened to be passing the house at the time of the assessment… or had a discussion with the person who should have been NR about who fulfilled the criteria and then chose someone else
“What if the nearest relative then is still the nearest relative now”
I’m guessing that you mean that the person identified by the AMHP is still being considered the NR now, even though it is likely that someone else is actually the NR?
Sometimes it is mistakenly believed that the AMHP has somehow ‘set’ the nearest relative into place by identifuying someone as NR at the time of the application. But, as has been pointed out, all the AMHP is doing is identifying who they believe to be the nearest relative at the point of signing their application. All sorts of things can happen afterwards. New information can come to light about other family members, or circumstances can change (divorce, death, children turning 18), which can mean that the nearest relative could suddenly be someone else. The fact that someone was identified by the AMHP as NR does not mean that person remains NR no matter what. In an ideal world the hospital managers should keep an eye this in order to comply with their duties under sections 132 and 133 - these responsibilities are completely independent of the AMHP’s responsibilities under s11. But sometimes the ideal world does not exist, and people may not ‘revisit’ NR identification after admission, even though they should.
The amhp is usually the only person who has done any training around this issue… certainly the only one to have done this in any depth taking in to account various case law… so it tends to only get reviewed at a mha assessment when the need arises to contact the NR… and to be fair for most patients the NR isn’t likely to change over the course of their admission… it only happened to me once that I recall in the incident I mentioned earlier… and this was only brought to light by the family member I had identified as NR letting the care co know they had a brother who wasnkeen to be involved in sisters care… care co mentioned this to me and I checked out who was the older sibling… my caseload over several years pretty much kept the same NR … changes only came about usually when the NR died… only other change I recall came when P’s daughter turned 18 and she became NR instead of P’s father… so as it doesn’t change that often I’m not surprised that hospitals don’t review to check who is still NR
Thank you both. When I’ve applied section 26 I can see that the AMHP had got the nearest relative wrong and the wrongly identified person has been considered the nearest relative all these years. I have informed the patient that his correct nearest relative is someone else. I just wanted to make sure that the section remained valid. I understand that if the AMHP had made the decision in good faith there is little that can be challenged.
I’d be interested to know more about the facts of the case. What did the AMHP get wrong 10 years ago and why? Would the right NR have done things any differently, e.g. objected at the start or requested discharge at any point?
This section does not impose a duty of reasonable inquiry on the AMHP applicant when identifying the patient’s nearest relative; there is no requirement for the AMHP “to don the mantle of Sherlock Holmes” (see WC, below, para.28). The test is subjective; a court will not interfere with the AMHP’s decision, save on well-recognised public law grounds (GD, above, para.42). A court cannot inquire into the reasonableness of the AMHP’s decision, it can only inquire into the honesty of his assertion that it appeared that that relative was the nearest relative (Re D (Mental Patient: Habeas Corpus)  2 F.L.R. 848 CA). Re D was cited by Scott Baker J. in R. (on the application of WC) v South London & Maudsley NHS Trust  EWHC Admin 1025;  M.H.L.R. 187, para.27, where his Lordship said that the court will not interfere with the AMHP’s conclusion under this provision unless she failed to apply the test in s.26 or acted in bad faith, or in some way reached a conclusion that was plainly wrong. WC was applied in GD v Edgware Community Hospital  M.H.L.R. 282 where it was held that an additional ground for interfering with the decision of an AMHP is misuse of power.
A consequence of cases cited above is that the legality of the patient’s detention will not be invalidated if, subsequent to the application being accepted by the hospital managers, the AMHP either learns of the existence of a previously unknown relative who is the patient’s actual nearest relative or is appraised of previously unknown facts about the patient’s situation which leads to the identification of a different nearest relative. The “new” nearest relative should be informed of the application and of his or her power of discharge under s.23 and an appropriate entry made in the patient’s case record: see also the note on s. 15(1).
In the absence of action being taken under s.29 to displace the nearest relative or of the nearest relative agreeing to transfer his or her functions to another under reg.24 of the English Regulations or reg.33 of the Welsh Regulations, the AMHP should consult with the person who she has identified as being the patient’s nearest relative using the formula set out in s.26, even though, from a professional perspective, it might be inappropriate for that person to be consulted. However, the consultation need not take place if the AMHP considers that it is not “reasonably practicable” to undertake the consultation: see below.
Thank you, that’s helpful.
Jonathan - the AMHP in this case identified a grandparent as the nearest relative but it should have been the father when applying s26. There were displacement proceedings against the father but they were withdrawn as as the father withdrew his objection to a section 3 application. The grandparent was more involved with the patient and it may have been that the AMHP believed that father had been displaced, but without speaking to the AMHP I wouldn’t know. There has been little contact from the father for the last 10 years and the grandparent has attended all relevant meetings and has visited the patient regularly.
You might be able to track down the AMHP’s outline report which should have been done at the point of admission. If you’re lucky they will have ‘shown their workings’ around their decision to identify the NR. But sometimes these reports lack that detail. Over the years I’ve seen tantalisingly vague things like ‘identified as per s26’ as the only explanation. Which doesn’t really help. Probably the most common error I’ve come across is a conflation between identification and practicability of notification/consultation.
Thank you Nick, I will try that.