Court process: displacement of nearest relative – part 1 identifying the need for displacement/appointment

I am sure that any of you who are AMHP trained are familiar with the provisions of S29 Mental Health Act 1983 that enable the county court to displace a nearest relative and appoint someone to act as nearest relative in their place.

But unless you have done this before, or have received some practical training on this, then you are probably less familiar with how this actually works, and what the process is. And that is what you have me for.

Safety warning: a lot of the process will, at least partly, vary from local authority to local authority so I will set out how we do it, but also make it clear where other local authorities might have different systems.

We’ll take things step by step, and this post focuses on identifying the cases where action is required.

For starters, the Mental Health Act Code of Practice says that local authorities should provide their AMHPs with guidance on when to consider displacement and/or appointment of a nearest relative. If you are lucky enough to have such guidance in your area, then, by all means, follow that guidance. In the unlikely event that what I am saying contradicts that guidance, feel free to ignore me, and follow the guidance your local authority has provided. I won’t take it personally. Indeed, I’ll always advocate siding with the people who are going to be defending you in the event of a challenge. And, alas, that probably isn’t going to be me.

But anyway, generally speaking this comes about because a Mental Health Act assessment has been called, and during that process, the AMHP thinks that one of the grounds applies. In our authority, they’ll either pursue that themselves, or refer to a community AMHP, depending on the urgency and the grounds relied upon. Its theoretically possible to make an anticipatory application, but we aren’t really resourced for that.

An application to displace or appoint a nearest relative can be made by P, a relative, anyone P has been residing with or an AMHP. I only deal with applications made by AMHPs and I’m not sure how regularly others make these applications, but the power exists, nonetheless.

So the most straightforward cases happen when ground a) is applied – that it appears P does not have a nearest relative. For us, these are usually picked up by our community AMHPs, since this usually allows for a more sedate pace of case preparation.

The AMHP who conducted the mental health act assessment will have gone through s26 Mental Health Act 1983 and not been able to identify any family members that meet the criteria in the Act to be nearest relative. So they’ll pass this on to a community AMHP, who’ll then make contact with my team.

The first thing we’ll do is discuss whether there really is no nearest relative that can be identified. It’s rare, but sometimes there is one that the assessing AMHP missed. Let’s face it, sometimes the circumstances of the assessment aren’t conducive to the most thorough investigation of a patient’s family history.

It is also usually fairly straightforward to identify where ground b) applies, which is where the person’s nearest relative is incapable of acting in the role due to mental disorder or other illness. This comes up quite often, for example, where P’s nearest relative is receiving treatment for a mental disorder themselves, and not able to understand the circumstances, and thus not able to provide a suitable safeguard of P’s rights. Most commonly, this is referred to us where the nearest relative is in residential care themselves and has been assessed as lacking capacity to make decisions about their own care and residence, and aren’t able to make decisions about P’s care and residence either.

The more contentious cases, that tend to require more urgent action, are where grounds c or d apply. These are where either the nearest relative is unreasonably objecting to a s3 or guardianship application; or where the nearest relative has unreasonably exercised their power to discharge P without regard for P’s welfare or the interests of the public. These are usually actioned by the AMHP involved in the assessment/discharge discussions in my authority. Sometimes that means a frustrating few days of bouncing around between AMHPs on duty for me, but hey ho.

These are more difficult because the nearest relative will usually think they are being reasonable. So whilst we rely on professional judgement, a conversation will also be had about the strength of the evidence that supports the AMHPs opinion. That doesn’t tend to make me very popular, but, well, better me questionning the position than a judge!

The final ground, e, is vaguer and intended for scenarios that might be harder to anticipate. The phrasing used is ‘nearest relative of the patient is otherwise not a suitable person to act as such’. You’ll find plenty of academics happy to discuss the scope of this ground, but for me, we most commonly use this in scenarios where P and the nearest relative do not have a good relationship and the thought of the nearest relative being involved in their support causes them significant distress. Where P accuses the nearest relative of abuse, for example. For a variety of reasons, these accusations can be difficult to prove. But in some circumstances, that doesn’t really matter, if P believes these accusations are true and the situation is causing distress. In truth, this ground is used more rarely than the others, because it is harder to evidence this clearly applies.

So after the referral is made to my team, we allocate to a lawyer who has these discussions, and checks that one of the grounds does potentially apply.

Next, we tend to have a conversation about the pragmatics. Those pragmatics, for example, will cover things like ‘is the person likely to need assessed under the MHA again?’. Because the provisions about displacement don’t place a duty on anyone to apply, and in the world of stretched resources, sometimes we have to ask if the proposals are the best use of resources. Sad but true.

Sometimes, we also have to discuss who the acting nearest relative will be. Where there is a friend who is able and willing to take on the role, and appears to be suitable, then the benefit to the person of proceeding will be clear. But, well, if the plan is to appoint the local authority as nearest relative then, again, putting my pragmatic hat on, sometimes we have to discuss whether the benefit to the person is worth the use of local authority resources. But many local authorities cover this in their guidance to AMHPs.

Obviously thes aren’t relevant when ground c or d applies, but can be in other situations.

Once we’re satisfied action is appropriate, and because the AMHP makes the application it is their decision but we advise them whether it is worth pursuing the case. Then we’ll start discussing next steps and the necessary evidence that will need to be prepared. But we’ll discuss that in the next post.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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