Recently found out that s29(4), the extension of s2 following application to displace a relative, only applies if the application is made on grounds (c) or (d) and not any other.
Can anyone clarify, where an application is made to court under s29(3)(a), (b) or (e), where the authority to detain, post day 28 and pre s3, comes from? What is the legal status of the s2 patient pending the courts decision? And why would the extension differ according to the grounds of the application?
We live and learn…thanks!
There is no bar to making a section 3 application if the section 29 application is made on the grounds of 29(3) a, b or e, so there is no need to extend section 2.
I think that’s right. On Form A6, if ground (a) applies you could use “unable to ascertain who is this patient’s nearest relative” or “patient has no nearest relative”, and if ground (b) or (e) applies I imagine you could use “not reasonably practicable … to consult that person”.
Thank you Stephen. Can you point me in the direction of the legal authority for this please?
there is not a single legal authority, rather it is the logical conclusion of a number of provisions:
- section 11.4 requires an AMHP to consult the nearest relative before making an application for admission under section 3, unless it is ‘not practicable to do so or would involve unreasonable delay’ and precludes an application being made of the nearest relative objects to an application for admission under section 3.
- If there is no nearest relative (29(3)a), there is no-one to consult and if the nearest relative is unable to act as such by reason of mental disorder(29(3)b), it is not ‘practicable’ to consult.
- The requirement to consult under section 11(4) can be overridden on Human Rights Article 8 grounds, if consultation is likely to adversely affect the person’s health [R v Bristol City Council, 6  EWHC 74 (Admin].
- This resulted in the introduction 29.4(e) and the patients rights to displace a nearest relative, if the nearest relative is ‘not a suitable person to act as such’. The MHA Code of Practice gives guidance on when a nearest relative is not suitable (para 5.14 and 14.60-65) and TW v Enfield Borough Council  EWC Civ 362 considers the meaning of 'not reasonably practicable in this context.
In summary, there is nothing in the Act or guidance that prevents an AMHP from applying for admission under section 3, when there is no nearest relative, the nearest relative is unable to act as such or the nearest relative is not suitable to act as such. Therefore there is no need for extension of section 2 pending the displacement and appointment of a nearest relative under 29(3)a, b and e.