I’m hoping someone can help with a question about misidentification of Nearest Relative.
Patient was detained and provided details of partner, who had made 999 call resulting in her detention. She commented on possible coercive control during police interview and later, when she refused hospital admission for assessment stating no ill health, was detained on S136.
Although in a relationship, patient did not live with partner as evidenced by separate addresses provided. Details of patient’s mother taken. Patient did not object to contact being made with either.
An error occurred in passing information from police to AMHP, who wrongly recorded partner as NR, despite recording separate addresses for patient and partner on S2 application paperwork. On admission to hospital, NR mistake was noted but not rectified.
Patient not told ‘assessment’ was for potential sectioning, no advocate or third party present. Despite her repeated assurances she was not unwell, she was sectioned.
After S2 assessment had taken place and first 24 hours elapsed, S136 no longer applied and patient asked to leave A&E, again stating she was well. Exit was denied, the door was locked and she was told if she tried to leave she would be arrested by police. After 48 hours she was transferred to hospital.
Patient was eventually discharged eight days later by mother who had independently researched MHA and identified herself as being correct NR. Patient was discharged with no diagnosis or mental health issue.
No contact at all was made with any NR, either the partner or mother, from detention to release.
Is there a potential claim for illegal detention? Thank you.
Ref: Kimber v Kimber, patient and partner did not live together, had no shared children, no shared finances, and completely separate domestic arrangements. MHA s26(6) is clear ‘cohabitee who lives with the patient ‘as’ husband/wife/civil partner, and has done so for six months or more, is treated as being the husband/wife/civil partner’. Patient and partner did not cohabit in this case.
Reference TW v Enfield, the patient had not objected to either party being contacted. The AMHP failed to make sufficient attempt, recording on one part of the form ‘unable to make contact with nearest relative’, but then ticking yes to the question ‘has Nearest Relative been informed’
Before or within a reasonable time after an application for the admission of a patient for assessment is made by an approved mental health professional, that professional shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the application is to be or has been made and of the power of the nearest relative under section 23(2)(a) below.
It all depends on the facts, of course, but even in the post-Bostridge world there might be scope for the patient to argue that had the NR been informed then she would have been discharged earlier.
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) [2000] 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 [2001] EWHC Admin 1025; [2001] 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 [2008] 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:
Thank you for your thorough response. Details of both potential NRs were supplied by the patient, who did not object to either party being contacted. S26 rules were not followed. No calls were received by either of the two people named and the application paperwork.