Abstract
Compulsory admission of patients to hospital for assessment and for treatment is governed by sections 2 and 3, respectively, of the Mental Health Act 1983. The nearest relative of a patient plays an important role in the admission of a patient under those two sections. The term, ‘uncooperative nearest relative’, is used to describe the nearest relative who objects unreasonably to the making of an application for treatment under section 3 of the Act. The uncooperative nearest relative and admission under sections 2 and 3 is a topic that has been treated in the literature but not to the same extent as this article does. This article aims to contribute to the literature by looking at not only the nearest relative and sections 2 and 3 of the Act generally but also at two problems concerning the uncooperative nearest relative that have been lurking in the background over the years and then proposing solutions for them.
Keywords
Introduction
Involuntary or compulsory admission of patients to hospital for assessment up to 28 days and for treatment are governed by sections 2 and 3, respectively, of the Mental Health Act 1983 (‘MHA 1983’). The nearest relative of a patient plays an important role in the admission of a patient under those two sections. The term, ‘uncooperative nearest relative’, is used to describe the nearest relative who objects unreasonably to the making of an application for treatment under section 3 of the Act. The uncooperative nearest relative and admissions under sections 2 and 3 is a topic that has been treated in the literature 1 but not to the same extent as this article does. This article aims to contribute to the literature by looking at not only the nearest relative and sections 2 and 3 of the Act generally but also two problems concerning the uncooperative nearest relative that have been lurking in the background over the years. It then proposes solutions for them. Apart from this introduction and the conclusion, it is in the following order: (i) who the nearest relative is, (ii) meaning of uncooperative nearest relative, (iii) section 2, MHA 1983, (iv) section 3, MHA 1983, (v) the problem posed by the uncooperative nearest relative, and (vi) proposed solution.
The nearest relative
The term, ‘nearest relative’, is a statutory term. Before 1959 it was not used in relation to the admission of patients to hospital. Rather, the expression, ‘husband or wife or a relative’ was used, for example, in s.5 of the Mental Treatment Act 1930. The concept was first introduced by the MHA 1959.
The definition of nearest relative today is given by s.26 of the MHA 1983, as amended by the MHA 2007, in the following way.
The person first described in the following list and who is surviving for the time being:
husband or wife or civil partner; son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece.
2
This list shows that the ‘nearest relative’ is imposed by statute on a patient, irrespective of whether he/she is competent (i.e. has capacity) or not. Ideally, the competent patient must be able to choose their nearest relative before their compulsory admission to hospital. However, the statutory imposition makes sense because, where the patient's mental condition is such that they must be admitted to hospital without delay or with minimum delay, the admission must proceed first, regardless of the patient's level of competence. Then, afterwards, the patient who is competent can initiate proceedings to displace their nearest relative in accordance with s.29, MHA 1983, as amended.
3
Other provisions re the definition of nearest relative are contained in s.26(3)–(7) of the Act.
4
The role of the nearest relative is very important because the nearest relative is an invaluable safeguard for a patient (i.e., a protector of the patient's interests), for example, when certain decisions are to be made about the patient, such as compulsory admission to hospital. This safeguard has received official recognition (Department of Health: 1999). 5 It has also been aptly described as ‘unique to the mental health compulsory detention process in England and Wales’ (Laing et al., 2018). 6
Meaning of ‘uncooperative nearest relative’
As already stated, the term, ‘uncooperative nearest relative’, is used in this article to describe the nearest relative who objects unreasonably to the making of an application for treatment under section 3 of the Act. Section 29(3)(c) states this as one of the five grounds for displacement of the nearest relative, as will be seen below.
A case illustrating the concept of the uncooperative nearest relative is W v L. 7 In that case the patient, aged 23 and suffering from mental disorder, had done various sadistic acts against animals (putting a cat in a gas oven, making a cat inhale ammonia and then cutting its throat, hanging a puppy in a garage and strangling a terrier with a wire). He had also threatened his wife with a knife and threatened to push her down the stairs as a way of disposing of the baby she was expecting. He was compulsorily admitted to hospital for observation. Following the birth of the baby and just before the 28 days of his admission for observation expired, his wife (nearest relative) objected to an application for his compulsory admission for treatment because she was sure that she could control him with the drugs prescribed for him and she wanted to keep the family together and not put in danger her husband's job right after the birth of their first child. The Court of Appeal decided that her objection was unreasonable as the test was not what she subjectively deemed reasonable but rather what an objectively reasonable spouse/relative would do under the particular circumstances of the case.
So, the objection of the nearest relative must be unreasonable for that nearest relative to be deemed ‘uncooperative’. In some cases, however, the courts have held the objection to the application for compulsory admission for treatment to have been reasonable. One such case is H v Essex County Council. 8
Section 2, MHA 1983
Section 2 MHA 1983 provides compulsory admission for assessment (or assessment and afterwards medical treatment) and detention for that purpose for up to 28 days. The grounds for the application are: (a) the patient is suffering from mental disorder of a nature/degree warranting detention in hospital for assessment (or for assessment followed by medical treatment) and (b) the patient must be detained as such in the interests of his/her own health/safety or protection of other persons. The application may be made by either the patient's nearest relative or an approved mental health professional (AMHP) and it requires two medical recommendations. Section 2(4), MHA 1983 provides, that after 28 days another detention under s.2 is not possible. 9
After the 28 days of section 2 have expired, the patient becomes informal or must be discharged. But, if it is deemed necessary to do so during the 28-day period of section 2, that section 2 can be converted to section 3, under which the patient can be compulsorily admitted for treatment. For a conversion to a section 3 the nearest relative of the section 2 patient must consent to the application for admission under section 3. If that consent is refused unreasonably, then the nearest relative can be displaced.
Section 3, MHA 1983
Section 3 MHA 1983 provides for compulsory admission for treatment. The grounds for the application are: (a) the patient is suffering from mental disorder of a nature or degree that makes it appropriate for him to be given medical treatment in a hospital; (b) it is necessary for the patient's health or safety or for the protection of other persons that he should receive such treatment which can only be provided if he is detained under the section; and (c) appropriate medical treatment is available for him.
The application may be made by either the patient's nearest relative or an AMHP; where the application is made by an AMHP, the nearest of the patient must consent to it. Two medical recommendations are required. The section lasts for 6 months, renewable for another 6 months and, after that, annually.
The problem posed by the uncooperative nearest relative
There are two situations:
First is where a section 2 patient's nearest relative refuses to consent to an application for the patient's admission under section 3. This has already been mentioned under the part on section 2 above – that nearest relative can be replaced. The second concerns an application for admission under an ordinary section 3 (i.e. a section 3 without a prior section 2).
In both situations, however, one unsatisfactory thing is that section 3 application form has no part to be signed by the nearest relative to confirm whether they consent or object to the application being made. Accordingly, there should be a part of the form that the nearest relative must sign to show whether they consent, or do not consent, to the application. On this point, one may well ask what will happen if, at the time of the assessment, the nearest relative is not available (for one sufficient reason or another) to sign the form. The answer to this is provided by s.11(4) which provides, inter alia, that no application for admission for treatment must be made by an approved mental health professional without prior consultation with the person appearing to be the patient's nearest relative ‘unless it appears to that approved mental health professional that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay’.
10
If, therefore, at the time of the assessment the nearest relative is not at hand to be consulted by approved mental health professional and to sign the application form, the application can still go ahead in accordance with the provisions of s.11(4), MHA 1983.
Section 3, MHA 1983, as already stated, requires an application by the patient's nearest relative or an AMHP. Where the application is made by an AMHP, then the nearest relative must give their consent to it. If, however, the nearest relative refuses to consent to the application, that nearest relative will have to be replaced under s.29, MHA 1983 before section 3 can go ahead. 11 When an application to displace the nearest relative of section 2 is made to the county court (under s.29), the 28-day period under s.2 becomes suspended until the s.29 application has been decided by the court. 12 However, the problem that arises is that the period for which the 28 days under s.2 are suspended can be a long time, depending on the circumstances.
The full grounds for displacement of the nearest relative (though only one is enough) are as follows:
the patient has no nearest relative, as defined by the 1983 Act, or the existence of such nearest relative cannot be determined in a reasonably practicable way; the existing nearest relative is not capable of acting as such because of mental disorder or some other illness; the existing nearest relative unreasonably objects to an application for compulsory admission of the patient or for placement of the patient under guardianship; the existing nearest relative has, without due regard to the patient's welfare or to the interests of the public, exercised his power to discharge the patient; or the nearest relative is not a suitable person to act as such.
The section 29 procedure:
The procedure that is followed when an application is made under section 29, MHA 1983 is, generally, an accelerated one.
13
The application is made by a lawyer representing the social services concerned. If the application is made in the morning, it goes before a county court judge in the afternoon of that day or on the morning of the next day. Any delay is likely to be on the part of the Social Services because an AMHP must first make a report.
14
The application papers must also include two medical reports. The application is then served on both the nearest relative and the patient. The next stage is an interim decision being made by a county court judge. A date is then fixed for a hearing. In most cases the matter is concluded in a week or 2 weeks. But, because the nearest relative may wish to instruct a solicitor and get medical evidence as well, the date of the hearing may be put back. The hearing can last about a month or more – if not within a month. The main participants are the nearest relative, the AMHP, two doctors, the lawyers of the Social Services and the lawyers and witnesses, if any, of the nearest relative.
Therefore, depending on the circumstances of each case (including whether there is an appeal against the county court's decision), the period of detention under s.2, MHA 1983, suspended when the application under s.29, MHA 1983 is made, can last quite a long time.
15
This, therefore, can be a real problem from the patient's perspective and that of civil libertarians concerned about the possibility of a long ‘extension’ of the 28-day period because of the s.29 procedure.
16
Finally, regarding the s.29 procedure, R (on the application of M) v Homerton University Hospital
17
ought to be mentioned because, apart from illustrating aspects of the procedure, it was a case where there was, inter alia, a challenge against the legality of detention under s.29(4), MHA 1983. In that case the appellant wanted reversal of the respondent's decision to detain her under s.3 while she was already being detained under s.29(4). Her counsel argued that her detention under both sections at the same time was unlawful because Parliament could not have intended that since a patient could only be admitted compulsorily under s.3 after the county court's final determination of the application under s.29. However, the Court of Appeal dismissed the appeal and held that detention under s.3 and that under s.29(4) could run concurrently because the powers in those two sections were ‘not expressed or intended to be mutually exclusive’.
18
According to Lady Justice Hallett, in her leading judgement: There is nothing in the Act or in the case law to suggest that if a hospital chooses to go down the section 29 route to try to displace the unreasonable relative, they are then bound to conclude those proceedings before taking action under section 3.
19
Proposed solution
Therefore, to improve the present position, it is suggested, first, that there should be a statutory provision for a speedier s.29 procedure.
One way of doing this is a statutory amendment of s.29 in the following way:
The displacement proceedings should be completed within 3 months (90 days), and that any party responsible for a delay exceeding 3 months (unless that delay is unavoidable) should have judgement by default recorded against them. If the default judgement goes against the nearest relative, then that nearest relative is to be replaced, the s.3 can go ahead, and the patient gets treated properly. However, if the default judgement is against the local authority (responsible for the social services), then, because the patient needs to be treated in hospital, the court must order that local authority to nominate another nearest relative or AMHP within 24 h, so that the original nearest relative can be replaced by that nominated person. Then admission under s.3 can go ahead without further delay.
The second suggestion regards the section 3 application form. It is that, in the interests of clarity, there should be a part of the form that the nearest relative must sign to show whether they consent, or do not consent, to the application being made.
Conclusion
Whereas s.2, MHA 1983 deals with compulsory admission of a patient to hospital for assessment lasting up to 28 days, which period is not renewable, section 3 concerns the compulsory admission of a patient to hospital for treatment for up to 6 months, renewable for another 6 months and then annually. After the maximum 28-day period of assessment under s.2, the patient becomes no longer liable to be detained in hospital and, so, may be discharged or he may stay on in hospital as an informal patient if he is willing to do so.
However, if, while the patient is under s.2, it is thought necessary that an application ought to be made for his admission for treatment under s.3, MHA 1983, a problem may arise where his nearest relative unreasonably refuses to consent to that application. The same problem arises where the nearest relative unreasonably refuses to consent to a straightforward application for admission under section 3 that is made by an approved mental health professional. This is because that nearest relative would have to be displaced under s.29, MHA 1983 and, when displacement proceedings are commenced, the 28-day period of section 2 becomes suspended until the court has resolved the matter, and that can take months. Accordingly, this article has suggested a measure to help speed up the process. Also, it would make matters clearer if the nearest relative has to sign the section 3 application form (or some other document) to confirm whether or not they consent to the application being made.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
