Your nearest relative isn't always the dearest

Someone who has a mental disorder will usually have a ‘nearest relative’. The role is set out in the Mental Health Act 1983 (MHA) and it can be significant.

If, for example, admission to hospital is in prospect, under section 3 of the MHA, the nearest relative must first be consulted by an approved mental health professional (AMHP). The AMHP succeeded the approved social worker (ASW) in 2008.

The requirement is in section 11(4) but it carries an important exception: consultation need
not take place if it is ‘not reasonably practicable’.

Practicability was central to the case of E, a woman with a mental illness, whose nearest relative was her sister. E was unhappy with that arrangement and a psychiatrist said it would damage her health.

For those reasons, Bennett J held that consultation with the sister would not be reasonably practicable (R (E) v Bristol City Council [2005] EWHC 74 (Admin)).

That, however, contradicted the MHA code of practice, which states: “Practicability refers to the availability of the nearest relative and not to the appropriateness of informing or consulting the person concerned.” (Department of Health, 1999, paragraph 2.16.)

The judge disagreed. He said consultation might be unlawful if it breached a patient’s right to privacy, under article 8 of the European Convention on
Human Rights.

Health risk

When TW was detained under section 3, there was no consultation with her nearest relative. The ASW decided that
it would require a disclosure of information that might damage her health.

TW claimed that her father should have been consulted
and that because he wasn’t, her detention had been unlawful. Because of Bristol, the code
had been revised.

It now said: “There may be cases where, although physically possible, it would not be reasonably practicable to inform or consult the nearest relative because there would be a detrimental impact on the patient, which would result in infringement of the patient’s right to respect for their privacy and family life under article 8
of the ECHR.” (Department of Health, 2008, paragraph 4.60.)

Citing this revision, and Bennett J’s judgment, Bean J found that consultation would have breached TW’s privacy and was therefore not reasonably practicable. He said the claim
was bound to fail and he refused her permission to bring it
(TW v Enfield LBC [2013] EWHC 1190 (QB)).

In the Court of Appeal, however, Aikens LJ said that a breach of article 8 might still be justified by the need to ensure, under article 5, that a patient’s detention was “in accordance with the law” (TW v Enfield LBC [2014] EWCA Civ 362).

Aikens LJ concluded that, because neither considered this possibility, the Bristol decision and the revised code should not be followed. It had been reasonably practicable for the ASW to consult the father and TW should have been given permission to bring her claim.

Balancing act

AMHPs now have a more nuanced task to perform. When deciding whether to consult a nearest relative, they must consider the right to privacy, but they must balance it with the right to liberty.

That should mean that more consultations take place, even where article 8 might be breached. The Court of Appeal hoped to not weaken rights, including patients’ rights but
to fortify them.

And that underlines a further, perhaps uncomfortable, truth: the nearest relative, as per the patient and the AMHP, is someone on whom the MHA endows particular entitlements and expectations.

The Bristol approach might
not have disappeared but it will certainly have lost much of its allure. This is because of the balancing exercise introduced in Enfield, also because of another change to the MHA.

Since 2008, it has been possible for a nearest relative to be removed from the role on the ground that they are not ‘suitable’ for it. That is surely
a more attractive approach: it may result in the nearest
relative being kept out of
much more than consultation.

The approach also entails that any removal decision is taken not by a hard-pressed AMHP,
in the early hours of Sunday morning, but by a circuit judge, after all the evidence has
been heard.

The nearest relative would have at least the possibility of their day in court. SJ

Dr David Hewitt is a First-tier Tribunal judge and author of The Nearest Relative Handbook david.w.hewitt@btopenworld.com