The approved mental health professional and the nearest relative: detention need not be negligent, even if it is unlawful
| Pages | 43-45 |
| Published date | 12 November 2010 |
| Date | 12 November 2010 |
| DOI | https://doi.org/10.5042/jap.2010.0643 |
| Author | David Hewitt |
| Subject Matter | Health & social care,Sociology |
The Journal of Adult Protection Volume 12 Issue 4 • November 2010 © Pier Professional Ltd 43
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Legal paper
10.5042/jap.2010.0643
Introduction
Where someone who suffers from mental disorder is to be
detained in hospital under the Mental Health Act (MHA)
1983 (HM Government, 1983), their ‘nearest relative’ has
a significant part to play. That person must be identified
according to the firm criteria set out in section 26 of the Act,
and if detention is to be under section 3 – for up to six months
in the first instance – the nearest relative may object and any
objection might carry the day.
The objection must be given to the approved mental
health professional (AMHP) who intends to apply for
detention, but what if the AMHP does not believe it has been
made? That question has already been considered, of course
(Hewitt, 2010), but the case in which it arose has now come
before the High Court again.
The case concerned Mr M, who remained in hospital after
he was discharged from detention under the MHA. Before
long, a decision was taken to detain him under section 3 once
again. (A more detailed summary of the facts may be found in
Hewitt, 2010, especially at page 36.)
An objection?
Mr M alleged that his re-detention had been unlawful,
principally because his nearest relative had objected to it (M
v East London NHS Foundation Trust (Defendant) and Hackney
The approved mental health
professional and the nearest
relative: detention need not
be negligent, even if it is
unlawful David Hewitt
Partner, Weightmans LLP, UK
key words
Mental Health Act 1983
,
detention, nearest relative,
consultation, objection, reasonable
belief, objective test
abstract
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.
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