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The nearest relative: losing the right to concur?
- Author:
- HEWITT David
- Journal article citation:
- Journal of Adult Protection, 12(3), August 2010, pp.35-39.
- Publisher:
- Emerald
Under the Mental Health Act 1983, a person who is suffering from a mental illness may be admitted to hospital and detained there. This is only the case, however, if the person’s nearest relative has not objected to such a course. A recent High Court case examined what it means to object to detention, and may have broadened the circumstances in which an objection is deemed to have been made. The judge said that although a nearest relative might be believed not to have objected, detention will only be lawful if that belief was reasonable. He also suggested that in some cases, objection should be inferred from a nearest relative's previous conduct. This article describes the case and discusses the implications of the decision.
The approved mental health professional and the nearest relative: detention need not be negligent, even if it is unlawful
- Author:
- HEWITT David
- Journal article citation:
- Journal of Adult Protection, 12(4), November 2010, pp.43-45.
- Publisher:
- Emerald
A patient may be detained under section 3 of the Mental Health Act 1983 (HM Government, 1983) only if his nearest relative does not object. Whether an objection has been made will be a question for the approved mental health professional (AMHP) concerned, but their answer will have to be a reasonable one. If the belief of the AMHP is not reasonable, a patient's section 3 admission will be unlawful. That does not mean, however, that the AMHP's conduct will necessarily be negligent, or that the patient will be entitled to damages. This article describes the case of Mr M, who remained in hospital after he was discharged from detention under the MHA, but before long was detained again under section 3. Mr M alleged that his re-detention was illegal, primarily because his nearest relative had objected to it. The judge ruled that his detention was indeed unlawful and ordered his release. Several months later, Mr M came back before the court seeking damages against the local authority who employed the AMHP. In this case the judge decided not to give permission for a damages claim, holding that even though Mr M’s detention had been unlawful ‘there is no reasonable prospect of success in any negligence claim’. This article discusses this logic of this position.