Patient currently subject to detention under s3. Eldest sister NR under s26 - but she delegated function to youngest sister in writing. Both want nothing to do with the patient. Youngest sister says she has relinquished her role, but eldest has not formally revoked. My understanding is their is no formal procedure within the MHA where the youngest sister can relinquish her role as delegated NR. As a result of this issue identified by the AMHP - the AMHP has stated in their application no consultation could take place because the patient has no NR under the Act. Is the youngest sister still the NR but consultation not practicable? Is the application/detention valid?
I can see the argument that consultation is not practicable, if neither relative wants to be involved, but the statement that there is no nearest relative is simply wrong in law. The patient does have a NR, and that is the person who is top of the list as defined by s26. That person has delegated the role to a younger sister, who is now stating they don’t want to undertake the role.
A few rhetorical questions, which should indicate what should be recorded. No reply required on this site. Was the original delegation confirmed in writing by the actual NR and accepted by the younger sister? If so, the younger sister accepted the delegation. Has the younger sister now put in writing that she is no longer willing to undertake the role? In which case the actual NR will in my view have the role again.
Can the NR delegate the role to another person who is willing to take it on? If there is no one else to delegate to, can the patient take the case to court to request an acting NR of their choice, on the grounds that the actual NR is not suitable due to refusal to engage (not sure what a judge would think of that as a valid ground).
Is the application valid? I believe the AMHP should have determined who currently holds the function as determined from the information above, and attempt to consult. It looks like consultation would not have been possible, and if the detention is recent, it may be acceptable to amend the information on the form, but I’m not sure whether this would be considered a rectifiable error, TBH.
Nominated person has replaced NR in the recent amendments to the MHA. The patient can choose who to consult. If they lack capacity in the decision to be made there should be consideration of IMHA or IMCA (for SMT and long-term accommodation decisions). Both advocacy roles are statutory and can support the person.
I’ll just look at this part of the question. The relevant regulation is regulation 24 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008. You’re right that there’s no procedure for relinquishing the role after delegation, but Richard Jones’s commentary (para 2-118 of the 28th edition) states:
A delegation made under this provision would end on the delegate withdrawing his or her agreement to perform the functions of the nearest relative, on the death of the nearest relative or on the nearest relative ceasing to have that status by virtue of the operation of either s.26 of s.29 of the Act.
He also states (para 2-119):
Although there is no requirement for the person concerned to have consented to the delegation, it must be assumed that such consent is a pre-condition of delegation.
It’s like a principal-agent relationship, which I think can be ended by either party. Possibly the oldest sister retained her functions throughout, as I’m not sure that an authorisation under regulation 24 to act on behalf of the NR removes the original NR’s powers. But one way or another you’d end up back at square one with the original NR.