Beyond reasonable belief
By David Hewitt
If you use the Mental Health Act, writes David Hewitt, it seems you can believe what you like
Where someone is to be detained under the Mental Health Act, his nearest relative has a significant part to play. If detention is to be for anything other than the short term, the nearest relative may object and any objection might carry the day. The objection must be given to the approved mental health professional (AMHP) who will apply for detention, but what if she doesn't believe it has been made?
Recently, a nearest relative who objected to admission went on to make comments that were more ambiguous. The AMHP said she believed that he had eventually agreed to detention, but, although genuine, this understanding was held unreasonable and Burton J ordered the patient's release (M v East London NHS Foundation Trust C0/1065/2009, 11 February 2009; see 'Reasonable objection', Solicitors Journal 153/55, 22 September 2009). The patient came back to court, seeking damages and declaratory relief, and the result of that second hearing, before Collins J, could prove uncomfortable (TTM v Hackney LBC and East London NHS Foundation Trust [2010] EWHC 1349 (Admin)).
One issue was the AMHP's belief: must it be unreasonable if the patient is to succeed, or need it just be wrong? And what if it is both? These questions arose when Collins J considered whether to permit a damages claim against the local authority whose AMHP had the patient detained. He decided not to do so, ruling that although detention was unlawful 'there is no reasonable prospect of success in any negligence claim'. That is a surprising, if barely explained, decision, not least because at the first hearing Burton J appeared to have taken a contrary view. He said: 'I believe [the AMHP] did act properly'¦ [but] it was not reasonable of her to have formed the view that she did.' Collins J said this did not imply that the AMHP was negligent; it merely followed from Burton J's finding of fact that, having once objected to admission, the nearest relative hadn't subsequently changed his mind.
No tension?
There is logic in this position, for the Act itself makes no mention of 'reasonable belief'. Section 11(4)(a) simply prohibits an AMHP from making an application for longer-term detention if the nearest relative has notified her that he objects to it, and that seems to impose an objective test. Burton J saw no tension between that and his 'reasonable belief' test, but Collins J said: 'Lawfulness of detention'¦ does not depend on whether the AMHP reasonably believes that there is no objection but on whether in fact there was no objection.'
The problem isn't so much what Burton J and Collins J say as the, perhaps diplomatic, attempt by the latter to suggest that it is the same thing. Burton J can be read to have dismissed the objective test. He offered the key question "What was the reasonable belief of the AMHP?" and suggested three ways to reach an answer. He chose the third way: to ask 'On analysis of the facts, did the AMHP act reasonably in concluding that there was an objection?' But he did so only after dismissing two other courses: to look at the subjective opinion of the nearest relative or to decide 'whether there was objection by reference to analysis of the evidence'. The latter is surely the objective analysis favoured by Collins J, but Burton J thought it 'would be likely to'¦ create an unnecessary risk for the hospital and for the AMHP in relation to each particular case, without achieving any necessary protection for the patient'. Surely, then, 'reasonable belief' is one thing and the objective test another, and Burton J does not say what Collins J says he says.
A more charitable view might be that Burton J did not seek to establish 'reasonable belief' as a discrete test; he simply used it to determine what, objectively, had been communicated to the AMHP by the nearest relative. Such an approach has an objective bias that would make it easier to reconcile with the one proposed by Collins J. Perhaps this will all be resolved on appeal.
It is hard not to feel sorry for the patient in this case, who was detained when, the High Court has twice accepted, he should not have been, and for his nearest relative, whose clear objection was not allowed to have effect. Yet, the patient finds he has no remedy, despite the AMHP's unlawful act, and she is not negligent, even though the belief she acted upon was not reasonably held. This case runs the real risk of perpetuating, and even compounding, the misfortune it has laid bare.