Yes, I know that in practice a patient’s nearest relative never makes an application for detention under Sec.2, Sec.3 or for guardianship. But the Mental Health Act and the guidance could never really seem to make their minds up about this point.
The NR has had this power since the 1959 Mental Health Act, and I am aware of one or two cases of the NR making the application under the old Act, often assisted by a psychiatrist who did not want a lay person meddling in his affairs.
Given that the whole point of the existence of Approved Social Workers (and AMHP’S) was to provide a professional with extensive knowledge and expertise in mental health and the law relating to mental health who wasn’t a doctor, it was something of a surprise to me, and to others, when the 1983 Act did not abolish the right of the NR to make an application.
And it was even more of a surprise when the 2007 Act, which amended the 1983 Act and created AMHP’s, did not take the opportunity to abolish this right, especially as in the meantime, the Mental Health (Care and Treatment) (Scotland) Act 2003 had done away with the right of the NR to make an application north of the border.
In fact, while the Scottish mental health legislation recognises the existence of the nearest relative, patients are allowed to nominate a "named person" who may or may not be their nearest relative, and it is this "named person" who has to be consulted and has the functions of the NR.
I personally think this is a good idea, and one which should have been adopted when Parliament had the chance.
Meanwhile, in England and Wales the Reference Guide states:
“AMHPs must make an application if they think that an application ought to be made and, taking into account the views of the relatives and any other relevant circumstances, they think that it is “necessary and proper” for them to make the application, rather than the nearest relative” (2.36)
However, the Code of Practice seems to have a much firmer view on the use or otherwise of the NR in these circumstances. Para4.28. states:
“An AMHP is usually a more appropriate applicant than a patient’s nearest relative, given an AMHP’s professional training and knowledge of the legislation and local resources, together with the potential adverse effect that an application by the nearest relative might have on their relationship with the patient.”I wrote about the powers and functions of the nearest relative on the blog a few months ago. But the reason I’m revisiting this now is because of the new Code of Practice.
You see, there's been a subtle, but I think significant, change in the advice given relating to the nearest relative making an application rather than an AMHP.
The old Code of Practice said (4.30):
“Doctors who are approached directly by a nearest relative about making an application should advise the nearest relative that it is preferable for an AMHP to consider the need for a patient to be admitted under the Act and for the AMHP to make any consequent application… Doctors should never advise a nearest relative to make an application themselves in order to avoid involving an AMHP in an assessment.”
However, the new Code of Practice, which comes into effect on 1st April 2015, has a much briefer equivalent paragraph:
"Doctors who are approached directly by a nearest relative about the possibility of an application being made should advise the nearest relative of their right to require a local authority to arrange for an AMHP to consider the patient’s case." (14.32)
It's quite different, isn't it? Gone is the bit about the doctor advising that it is preferable that an AMHP should undertake the assessment and make a decision.
Gone is the instruction that doctors should never advise the NR to do it themselves to avoid using an AMHP.
A conscious decision has clearly been made to amend this paragraph, removing the bits that suggest an AMHP should always be the best person to conduct an assessment.But why?
Is it now the intention that NR's should be encouraged to undertake more assessments under the MHA?
I'm frankly perplexed.