Sec 13(4): The Right of the Nearest Relative to Request a Mental Health Act Assessment

Relatives are frequently unaware of their right under Sec.13(4) MHA to request an assessment of their relative under the Mental Health Act.

Those who are aware of this, are often under the misapprehension that this will inevitably trigger a visit to their relative by an Approved Mental Health Professional and two doctors.

Sec.13(4) states:

(4) It shall be the duty of a local social services authority, if so required by the nearest relative of a patient residing in their area, to make arrangements … for an approved mental health professional to consider the patient’s case with a view to making an application for his admission to hospital; and if in any such case that professional decides not to make an application he shall inform the nearest relative of his reasons in writing.

The new extended 2015 Reference Guide has very little to say to enlarge upon this, other than referring the reader to the new 2015 Code of Practice, and stating that “the nearest relative can require the local authority (verbally or in writing)…to arrange for an approved mental health professional (AMHP) to ‘consider the patient’s case’ including whether there is a need for compulsory admission to hospital.” (p.21).

The Code of Practice only refers to this section in two paragraphs, at para14.36, and para14.102. The only thing that para13.36 adds is to state that the local authority must respond not only to a direct request from the Nr, but also to a request “on behalf of” the NR.

So what does all this mean to the nearest relative and to the AMHP receiving a request under Sec.13(4) from the nearest relative?

The NR does not need to put the request in writing, but can make a request by phone. They can also ask someone else to make a request, such as another relative, or their GP, and this must be considered as if  it were a direct request from the NR.

The local authority AMHP service has to respond to this request. But this does not necessarily mean that they will conduct a formal assessment. An AMHP only has to “consider the patient’s case”. If, having done this, they do not think that an assessment is merited, there is no requirement to assess.

From the AMHP point of view, there may be many reasons why it is not appropriate to assess the patient under the MHA. A typical reason may be that other arrangements are being, or have been made. This might include a GP referring the patient to the local crisis team for assessment. It would therefore be wrong to pre-empt this assessment, under the principle of the least restrictive option.

Another reason might be that the patient is already involved with a community mental health team, who are managing the patient’s condition and would not welcome and AMHP’s intervention, or do not consider that a MHA assessment is necessary.

It may be that, while the relative is concerned about the patient, the patient has not actually seen a doctor recently. In which case, I would always advise the relative that they should arrange for the patient to see a doctor first.

In some cases, the request may be “mischievous”; in other words, the relative may have made frequent or recent requests for their relative to be assessed, and unless there has been any significant changes in the patient’s condition, it would be oppressive to keep formally assessing the patient.

I recall one such case, where the mother of the patient, a pregnant single parent with a young child, reported that she was expressing a range of alarming paranoid delusions, especially around her unborn baby. The ex-partner of the patient also corroborated this.

I went out with the GP and a psychiatrist, to find her preparing tea for her daughter and a school friend. Everything appeared completely normal, and she spoke politely and rationally to us for about an hour. We were unable to elicit any symptoms of mental illness, but based on the reports of the relatives, we rather heavy-heartedly decided to detain her, and she was detained under Sec.2 for 28 days.

During that time she was not given any medication, and did not provide any evidence to ward staff of any mental illness.

On another occasion, I received a request from the husband of a woman. They were recently separated. His concerns seemed to boil down to the view that since his wife did not want to talk to him, and would not agree to what he wanted to happen to the property and children, then she must be mentally ill. I did not respond to this request.

Once an AMHP has considered the case, and has either decided not to undertake a formal assessment, or has assessed and has decided not to detain, they have a legal requirement to write to the referring relative. These letters have to be very carefully written. The Code of Practice states: “Such a letter should contain, as far as possible, sufficient details to enable the nearest relative to understand the decision while at the same time preserving the patient’s right to confidentiality.”(para14.102)

Sec.13(4) requests from nearest relatives always used to be a fairly rare occurrence. Recently, however, our local AMHP service has received a mysterious increase in these requests. Could it be that relatives are becoming better informed about their rights under the Mental Health Act?

I don’t actually think so. We have discovered that relatives have been contacting the patient’s community mental health team because of concerns about their mental health, who have then advised them to make a referral to the AMHP service.

This appears to be due to service cuts or staff shortages. It appears that increasing numbers of patients are active to community teams, but have not got an allocated care co-ordinator, and the over worked duty worker has the idea that, if their team cannot make a timely response, then the AMHP service can always conduct an assessment under the MHA.

We have been working hard to disabuse community mental health services of this notion.

When Nearest Relatives Object

The Mental Health Act gives the Nearest Relatives of patients subject to the Act specific legal powers. These include the right to apply for the discharge of a detained patient from hospital, as well as a veto of use of detention under Sec.3.

If an AMHP decides that a patient needs to be detained under Sec.3 of the Mental Health Act for treatment, they have a legal duty to consult with the identified Nearest Relative. Form A6, which is the form the AMHP uses to make an application for detention under Sec.3, is more concerned with issues relating to consultation with the Nearest Relative than anything else. The AMHP has to show that he or she has identified the Nearest Relative (I’ll deal with this arcane process in a future post, as it tends to involve incantations and the construction of pentagrams) and that consultation has taken place. If the AMHP has been unable to identify the NR, or has not been able to consult with the identified NR, then they have to state this and give reasons.

The purpose of the AMHP’s consultation with the NR is partly to inform them of their rights and powers under the Act, but mainly to find out whether or not they have any objection to their relative being detained. The AMHP has to certify that the NR “has not notified me…that he or she objects to this application being made”.

This is a crucial difference between Sec.2 and Sec.3. The AMHP only has to notify the NR that a Sec.2 application is being made. They do not otherwise have a say in the process. However, if the NR does object to the Sec.3, then no application can be made. The only way round this is for the AMHP to go to the High Court to apply for the NR to be displaced. They can only do this if there are compelling reasons, such as evidence that the NR is acting unreasonably or if they lack mental capacity. This is often a long and onerous process, involving the local authority’s legal department and the High Court. During that time the patient can often remain in suspended animation on an eternal Sec.2. It’s certainly not something that an AMHP can do on their mobile while standing in a patient’s kitchen.

AMHP’s can get into serious trouble if they do not properly consult with the NR. There have been a couple of legal decisions regarding this issue. One recent one was TTM v Hackney Borough Council and Others, 14th January 2011 in the Appeal Court. This concerned a patient who had been detained for 10 days under Sec.3 in a hospital in spite of the fact that the patient’s nearest relative had objected and no application for that relative‘s displacement had been made. The court found that the AMHP had acted unreasonably and in breach of the law, and that the patient had therefore been detained unlawfully, not just under domestic law, but also in breach of his rights under the Human Rights Act. This meant that the patient was eligible to claim compensation for unlawful imprisonment.

Another case where the then Approved Social Worker (as it was before the changes to the MHA bringing in AMHP’s) became unstuck was GD v The Managers of the Dennis Scott Unit at Edgware Community Hospital and The London Borough of Barnet, Queen’s Bench Division (Administrative Court), 27th June 2008 (Case law decisions have snappy titles, don't they?). In this case, the patient’s NR was his father. The patient was well known to mental health services with a diagnosis of schizophrenia, and it was also known that his father preferred natural remedies for his son’s mental illness over conventional hospital treatment and would be likely to object to an application under Sec.3 being made. There was also the very real fear, as it had happened in the past, that the father would hide him if he knew that an assessment was going to take place. Consequently, the ASW did not contact the NR before the assessment, and only let him know by leaving a message when the assessment was actually taking place. When the NR returned the call 20 minutes later, the paperwork had already been completed. He then indicated in no unclear terms his feelings about this and his objection. The ASW had by then filled in the section of the form indicating that it had been “impracticable” to consult with the NR. The Judge in the case found that the patient had been illegally detained because the ASW had deliberately failed to make adequate attempts to consult with the NR as he knew that the NR would object.

I have fortunately never been in the position of having to apply to displace a Nearest Relative. In my experience, it is fairly rare for Nearest Relatives to object to detention, although they may at times have misgivings, and quite often do not wish the patient to think that they have colluded in the admission. In these cases, I attempt to reassure the relative that although they have not objected, that is not the same as agreeing, and that the final decision, and responsibility, lies with the AMHP.

However, there are times when ascertaining the views of the Nearest Relative can be fraught with problems. There follow a few from my personal experience.

Charlotte
This was a case from the dim and distant past of the Mental Health Act, even before the 1983 Act. Charlotte was a 17 year old girl who was an informal patient in the local psychiatric hospital. She had had a very disturbed and abusive childhood, and had been rejected by her parents and spent several years in local authority children’s homes. She had been admitted after displaying bizarre and irrational behaviour. Following admission to the psychiatric ward, which in those days was a ward in the general hospital, and was directly beneath the prenatal and post natal wards, she had gone upstairs and wandered onto the post natal ward, where she had been apprehended in the act of attempting to remove one of the babies.

A request was made for her to be detained under the equivalent of Sec.3, which under the 1959 Act was known as Sec.26. This was in itself unusual, as patients had to be at least 18 years of age to be detained under Sec.26, with one exception: if the person had a psychopathic disorder. Since this was the case with Charlotte, she could be detained under this section.

I had to consult with her father, who was her Nearest Relative, to establish whether or not he objected to her being detained. In those days of generic social work teams (we’re talking about the early 1980’s), I worked in the same office as her social worker, and was aware that she was estranged from her parents, who had explicitly stated that they wished to have nothing to do with Charlotte. However, I considered that the requirements of the MHA overrode this instruction, and that I had to attempt to make contact with him. I rang him on his home number. His wife answered the phone. Charlotte’s father was at work. I explained to Charlotte’s mother the reason why I was ringing, and asked her to get Charlotte’s father to ring me.

A few minutes later I received a call from her father. Before I had a chance to explain in more detail the reasons for my call, he launched into a clearly prepared statement: “Social Services are aware of our instructions that we do not wish to have any contact concerning our daughter. If you attempt to make any further contact with us in any way, then I shall lodge a formal complaint with the Director of Social Services.” He then hung up.

I had at least made an effort to consult with Charlotte’s Nearest Relative. I had even spoken to him, briefly. And he had not indicated in his statement that he objected to her detention under the Act. So I felt in the circumstances that I could with hand on heart state on the form that I had consulted with the NR and that they had not objected.

Cathy
Cathy was an intelligent and well educated woman in her 30’s. Following a still birth, she slid into a vicious and intractable depression. She was admitted to hospital as an informal patient, but I was subsequently asked to assess her under the MHA and she was detained under Sec.2 for assessment. After a period of assessment, a further request was made for her detention under Sec.3 for treatment. I agreed to this and consulted with her nearest relative, which in this case was her mother. Her mother worked in a mental health voluntary organisation, and therefore had some knowledge of mental illness. I consulted with her and she did not object to Cathy being detained.

Cathy remained in hospital for over a year, but after a range of treatments her depression improved and she was discharged to the address of a friend. However, within a couple of months her mood had deteriorated drastically, and she took a serious overdose. She was again admitted informally to hospital from a medical ward, but then refused treatment. I assessed her again and applied for her detention under Sec.2 for further assessment. After three weeks it was clear that she was going to need a longer period of treatment as an inpatient, to which she would not agree, as she wanted to leave hospital in order explicitly to end her life.

It was clear that Cathy was going to need to be detained under Sec.3 again, so I contacted her mother in order to consult with her. To my surprise, she was very reluctant to consider her daughter’s further detention.

“Her life is pretty awful, isn’t it? She’s spent an awful amount of time in hospital. She doesn’t really have anything to live for, does she? Perhaps she ought to be allowed to die,” she said to me.

I was somewhat taken aback. I found it difficult to believe that Cathy's mother could even consider the alternative to detention as an option.


My own view was that Cathy suffered from a serious mental illness that was treatable. It was because of her mental illness that Cathy wanted to kill herself. She did not have the capacity to make a rational decision about ending her life or accepting treatment. I would be failing in my duty of care to Cathy if I allowed her to take her own discharge from hospital in order to kill herself.
I shared all this with her mother. The conversation continued for over an hour. She eventually reluctantly agreed that she should be kept in hospital for treatment.

Cathy did recover, was discharged from hospital after few months, remained well this time, and was never detained again.

Cheryl
Cheryl was a woman in her early 40's with bipolar affective disorder. She had a history of having acute manic episodes when subjected to excessive stress. When she became unwell, she frequently needed acute admission under the Mental health Act, as she rarely had enough insight to recognise she was becoming unwell. She had three children, but none of them were old enough to be her nearest relative, so when she needed detaining I always consulted with her mother as nearest relative.

She had been out of hospital for about three years when she again had an acute manic episode. This was accompanied by paranoia, classic symptoms of bipolar disorder, including pressure of speech, flight or ideas, an inability to sleep, concentrate or eat, as well as symptoms of paranoia, believing that she and her daughter were victims of pornography, as well as the belief that she had two wombs and had had dozens of babies, all of whom had been given away to paedophiles.

I went out with the consultant psychiatrist and her GP and it did not take long to decide that Cheryl needed to be admitted to hospital. She did say that she would go informally, but I did not feel that she had the capacity to agree, and was in any case likely to change her mind at any time. I obtained two medical recommendations and then consulted with her nearest relative. Her eldest son was now 19 years old, and therefore now counted as her nearest relative. He was present in the house and had been involved in the assessment. I took him to one side and asked him whether he had any objection to his mother being detained under Sec.3.

He did object.

I discussed the situation with him. He recognised that his mother needed to be in hospital, but did not want her to be detained. He wanted her to go in informally. He said that if his mother refused to go in at the point of admission, then he would have no objection to me detaining her then, but otherwise he could not agree.

I could understand his feelings. He had seen his mother being sectioned on several previous occasions, and at times she had been so disturbed that police had been involved and she had been taken to the police station. (On one occasion, Cheryl had been so keen to see the pastor of the local church, she had literally driven through the doors of the church and had ended up in the aisle.) This was also his first experience of being consulted as the nearest relative. He probably felt, as many relatives do, that his mother might blame him if he was perceived to have been endorsing her admission.

So I respected his wishes and we took her in informally. Fortunately, it worked out, and Cheryl agreed to treatment in hospital which rapidly brought her back to normal.

When Detained Patients Appeal Part V: Nearest Relatives and Tribunals

Although Nearest Relatives can attend Tribunals, they rarely do. Sometimes this is because they want to distance themselves from the legal process, or do not wish to confront their detained relative. It can be difficult to side with the psychiatrist and AMHP when their patently unwell relative is protesting that they do not need to be detained. The patient may not be able to recognise that their relative may really have their interests at heart, or may even be frankly terrified of them.

I have attended a few Tribunals where the Nearest Relatives have had a crucial role to play in assisting the Tribunal members to reach a decision. Sometimes this has been by the relatives telling some harsh truths about the patient. Sometimes they have facilitated their discharge in the face of opposition from the professionals.

Doreen was a woman in her early 60’s. She had a history of bipolar affective disorder going back nearly 40 years. During that time she had had a number of acute admissions under the Mental Health Act, most recently about 6 years previously. She normally managed well with a fortnightly depot injection and some oral mood stabilising medication. In fact she literally swore by its efficacy: “That injection,” she once told me, “it’s fucking marvellous!”

Doreen was a large and imposing lady. Even when well, she probably ran a bit fast: she was always loud, and often very crude, but in an amiable and rather likeable way. She tended to fill a room, both in reality, because of her bulk, but also with her gravely voice, which had been roughened and deepened by her 50 cigarettes a day habit, and her frequent peels of laughter after having told a particularly off colour joke.

It as unclear what had precipitated this admission; her husband thought that she had stopped her medication because of fears it was causing her constipation. The result, however, was that her behaviour became more and more unmanageable by her usually very tolerant husband, and even the input of the Crisis Team could not prevent an admission to hospital. When she decided to leave a few days later, she was placed under Sec.3.

Outraged at this, she appealed.

She had a manager’s hearing within a couple of weeks. I wrote her Social Circumstances Report. I interviewed her husband, who told me that he thought she needed a combination of oral and injected medication. He did not feel she was well enough to be at home at present. I put this in my report. When I interviewed Doreen for the report, she was still clearly displaying symptoms of hypomania, talking very quickly, darting around from subject to subject – and also displayed symptoms of paranoia, focusing on ward staff and her husband. The ward staff, she confided in me, were trying to kill her. She had a fixed belief that the nurses were “wicked animals” who had left her for dead suffering from hypothermia. Her husband, she told me, was a wicked old man who was also trying to kill her, in order to inherit her jewels.

The manager’s hearing considered her case, but did not discharge her from detention.

Doreen remained on the ward, protesting that she did not want oral medication. She continued to be happy to have her depot injection, as she always had been, but she became more and more unmanageable on the ward, being openly hostile to female staff, at times slapping nurses as they passed her in the corridor, and was also sexually disinhibited with male staff and patients. The ward decided to transfer her to the local PICU (Psychiatric Intensive Care Unit).

The PICU is classified as a low secure unit. This means that it is locked. I attended her first review. I had to go through an airlock, leaving any sharp objects, keys, and my mobile phone at reception. Doreen was still voluble and showed evidence of hypomania, but was not being verbally or physically aggressive to staff. She did, however, attempt to seduce the male nurse who was present at the meeting. She continued to refuse oral medication, but appeared more settled. After about a month a date for a Tribunal was set.

I interviewed both her and her husband for the report. He told me that he was willing for his wife to return to the marital home, as long as her mood was stable and she was complying with her medication. Certain areas of need have been identified, including some aids and adaptations to the house, and a support worker to take Doreen out. He was also considering taking early retirement in order to spend more time with her. Doreen's mental state did seem to have improved, but there was still evidence of pressure of speech, as well as evidence of disinhibition in the content of her conversation with me. Her relationship had clearly improved with her husband, who had been visiting her on the ward. However, she remained adamant that she should never have been detained, and that she did not need oral medication. I concluded in my report that "although I am aware of some improvement in Doreen's mental state, she is still presenting with a mental illness of a nature and degree that warrants her continued detention under Sec.3, and that were she not detained under the Mental Health Act she would intend to leave the ward and return home. This would not be in the interests of Doreen, or her nearest relative and carer, and could jeopardise her long term rehabilitation prospects." I suggested that she should return to the local ward prior to her eventual discharge home.

When I arrived at the PICU, not only was her husband there, but her daughter and son-in-law had also come. Although her husband had told me only 2 weeks before that he still had worries about her returning home, he was now saying that he wanted her home as soon as possible. They all went off into a side room with Doreen’s solicitor.

With Doreen's consent, her husband and daughter both attended the Tribunal. The solicitor invited them to give evidence to the Tribunal regarding the arrangements they could make to care for Doreen and maintain her mental stability. They were prepared to take her home with them today, were the Tribunal minded to discharge her.

The Tribunal were so minded, she was discharged for the Sec.3 with immediate effect and she went home with her relatives that day.

And reader, to this day Doreen is still at home with her husband, still in good mental health, still accepting her depot injection, and still not taking any oral medication.

The Problem with Relatives

Relatives and carers of people with mental illness need to be heard and respected. They are frequently good informants, and often bear the considerable burden of caring for a mentally ill relative without complaint, and for far longer than they necessarily ought.

However, relatives are not always good informants. Sometimes they can be actively malicious – I have had several nearest relative requests for assessments (to which, under Sec.13(4) MHA, we have to respond) from ex-partners complaining that their wives/husbands are behaving in an irrational and unbalanced way, when the only “irrational” behaviour is that they no longer wish to live with an abusive partner. And sometimes they become just too sensitised to the relative and interpret innocuous or normal behaviour as signs of mental illness.

Ivan’s GP phoned me one afternoon. He had had a call from Ivan’s mother saying that he was becoming unwell again. She reported that he was threatening her and neighbours, and that the police had been called on one occasion. Although the GP had not recently seen Ivan, he was nevertheless requesting a formal assessment under the Mental Health Act. He had noticed that Ivan had not ordered a repeat prescription for his antipsychotic medication for about 6 months. On the basis of this information, I agreed that I would undertake an initial assessment with the GP, and the GP arranged for Ivan to visit the surgery the next day.

I did know Ivan. He was a man in his 40’s who lived alone. I had assessed him under the Mental Health Act about 7 years previously, again on the information of his mother. In fact, she had often reported that he was displaying gross symptoms of mental illness, but when assessed had been found to be largely asymptomatic. On the previous assessment, he had admitted to an unusual somatic hallucination or delusion, which was the feeling that someone was pressing down on his head. He admitted that the only way he could find of relieving this symptom was to bang his head on the wall, and indeed he had a few contusions and abrasions as a result of this practice. He had also lost a lot of weight and complained of having no appetite.

That assessment had been inconclusive, and the psychiatrist and I had not felt he was detainable under the MHA. However, he did agree to an informal admission, and he was checked out medically to exclude any physical causes for these symptoms. He was discharged on a small dose of antipsychotic medication, had remained very well for several years and had eventually been completely discharged from the Community Mental Health Team.

In view of this previous history, and despite the reported concerns, I somehow doubted that the assessment would result in an admission to hospital.

I was right.

I saw Ivan on his own initially, as the GP had had to see another patient. Ivan remembered me from my previous contacts with him, and was friendly and appropriate throughout the conversation. He told me that for the last few years he had been doing a part time Open University course leading to a degree in Astrophysics. He had attended short courses and summer schools, and had even spent a week working at an astronomical observatory on Majorca.

All this was true. Since cosmology is something I am quite interested in, while we waited for the GP to join us, we had an illuminating and interesting discussion about String Theory, the Large Hadron Collider, and the nature of black holes, and even got into an argument about whether or not the Higgs Boson existed.

He showed not the slightest evidence of psychosis or any other signs of mental illness. He said that he was still taking his medication, and had not collected any recently because he was on such a small dose he still had a supply. This was plausible. He had insight into his disorder, recognising the ill effects of not taking the medication on the occasions when he forgot it. He denied any problems with the neighbours, although agreed that he had fallen out with his mother a couple of months previously because she had been trying to convince him that he was unwell. He had not seen her recently. There was no evidence of head banging, and he had even put on weight since I had last seen him.

He shook my hand as he left, and I wished him luck with his degree.