Not reasonably practicable: are there now greater opportunities for abuse by a nearest relative?
| Date | 09 February 2015 |
| Pages | 62-70 |
| Published date | 09 February 2015 |
| DOI | https://doi.org/10.1108/JAP-06-2014-0021 |
| Author | David Hewitt |
| Subject Matter | Health & social care,Vulnerable groups,Adult protection |
Not reasonably practicable: are there
now greater opportunities for abuse
by a nearest relative?
David Hewitt
David Hewitt is a Visiting
Fellow, based at Northumbria
University, Newcastle, UK and
Bournemouth University,
Bournemouth, UK.
Abstract
Purpose – The purpose of this paper is to explain a decision of the Court of Appeal about the duty an
Approved Mental Health Professional (AMHP) will sometimes have to consult a patient’s nearest relative,
and to set that decision in the context of an earlier one.
Design/methodology/approach – Each decision is examined in detail and one is compared with the
other. Reference is made to the Mental Health Act 1983 Code of Practice.
Findings – It will be harder for an AMHP to establish that consultation is not reasonably practicable, and it
will be correspondingly easier, in some cases, for a nearest relative to obtain information about a patient or
achieve proximity to her.
Originality/value – This is thought to be the first time the two cases have been considered together or in
their true context.
Keywords Mental health, Safeguarding, Legal, Approved mental health professional, Consultation,
Nearest relative
Paper type Case study
Introduction
Where a person is to be detained under the Mental Health Act (MHA) 1983, it is now more likely
that her “nearest relative” will have to be consulted beforehand. That is because of a decision of
the Court of Appeal, which has loosened previous restrictions upon the consultation duty.
The role of nearest relative can be a significant one. The person performing it may discharge a
patient from detention or even, in some circumstances, prevent her being detained at all (HM
Government, 1983, Sections 2, 3, 11(4) and 26); the nearest relative might make his own
application for the patient to be detained; and the mental health professionals concerned are
often requiredto give the nearest relativeconsiderable and sensitive information about the patient
(HM Government,1983, Section 132). This might enable the nearestrelative to draw close to the
patient, evenwhere such proximity is by no means welcomed,and it might help him to locate her
when she thoughtshe had disappeared fromview. It has been suggestedthat rather than being a
bulwark against it, the role of nearest relative might actually facilitate abuse (Hewitt, 2010a,b).
The issue is most acute when a mental health patient is to be admitted to hospital for medical
treatment, under Section 3 of the MHA, 1983, or to guardianship, under Section 7.
Section 11(4) of the Act applies in such cases. That section has been amended since the
events that are the subject of this paper. Those events took place in 2007, at a time when that
provision read:
Neither an application for admission for treatment nor a guardianship application shall be made byan
approved social worker if the nearest relative of the patient has notified that social worker,or the local
The author is grateful to the
anonymous reviewers for their
diligence, and for their perceptive
comments on an earlier draft of this
paper.
PAGE 62
j
THE JOURNAL OF ADULT PROTECTION
j
VOL. 17 NO. 1 2015, pp. 62-70, CEmerald Group Publishing Limited, ISSN 1466-8203 DOI 10.1108/JAP-06-2014-0021
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