So AMHP has consulted and named a NR in their application for s3 who had delegated their role to another person in 2018 to run indefinitely. Having checked the delegation to ensure it hasn’t ended in the ways that it can - it appears to still stand.
The NR identified and the person who to whom she had delegated her role to but not named in the AMHP application were both present at the assessment - and the NR identified and other person who was the NR by way of delegation had both agreed to the need of the AMHP application, but the incorrect NR was formally consulted and named in the application.
Both identified NR and the NR to whom the role was delegated had obviously forgotten about the delegation from 2018 and the AMHP had stated that their LA systems had no evidence of a delegation. But the hospital did find the delegation following the patient’s admission/acceptance of the s3.
There is no doubt the AMHP acted in good faith and had consulted with the person who appeared to be the NR at the time by applying s26 - and could not have known about the delegation - unless they contacted the MHA Office to ask before the assessment took place - which would need to have been during office hours) - and it is unlikely the MHA Office would have been able to obtain the file from archive to look for any evidence of a delegation in real time). We are still pretty much paper based unfortunately.
Would it be sufficient to apply the steps specified in Jones under s15(1) (clearly in relation to case law considered for a s2 application) i.e.
'The naming of a person who is not the patient’s nearest relative on an application form is an error that can be rectified under this section if, on the information available to her, and after having made the appropriate enquiries, the approved mental health professional (AMHP) made an honest mistake because, for example, she was not aware of the existence of a close relative of the patient. The error would not be rectifiable if, on the information available to her, the person identified could not have been the patient’s nearest relative. In other words, the AMHP made an error of law by misinterpreting s.26.’
‘An honest mistake made by the AMHP regarding the identification of the patient’s nearest relative which is discovered after the rectification period has expired will not render the application unlawful if the actual nearest relative is informed of his or her status and powers at the earliest opportunity’.
Or do we err on the side of caution to bring the detention to an end under the fundamentally defective process because the AMHP consulted with a person who was incapable of being the NR because of the delegation.
Please accept my sincere apologies for the length post!!!