Court process: displacement of nearest relative – part 2 making the application

This is the second post in this series. If you haven’t seen it, it’s available here.

So what happens after the AMHP has spoken to the legal team and its been agreed that a displacement, or appointment, of a nearest relative is needed? Well, let me tell you.

In my authority, as I’m sure in many others, we have a template witness statement we send to the AMHP, and we also have anonymised examples that we can send out if needed (although I confess these are now quite old). And the member of the team dealing with it will also talk the AMHP through what needs to be included in their statement. Because we’re nice like that.

The content of the statement varies from case to case, but there are a number of common themes. For example, every witness statement always starts with a paragraph introducing the writer: “I, Marilyn Monroe, make this statement. I am an approved mental health professional employed my Hollywood Council. I have 5 years experience as an AMHP and 15 years experience as a social worker. The majority of my career has been spent working with people with mental health conditions. I have known Fred Astaire for 2 years, having previously been involved in his support planning, and I was called to undertake a mental health act assessment for him on 27th September.”

And yes, we do support AMHPs who aren’t directly employed by us, too.

After that, I like to include some wording, making it clear that the writer has had access to the social care records, has spoken with other professionals and met with P a number of times, so it is clear where the information in the statement has come from.

The statement then needs to include relevant background to the issue at hand, that has prompted the need for the application. How much case history needs to be included varies but as a minimum its necessary to say why the person is within the remit of the Mental Health Act 1983 and thus in need of a nearest relative. We tend to attach the latest MHA assessment papers, to evidence this to the court. Because the court isn’t under a duty to appoint a nearest relative, so it’s important to clearly explain to the judge why they should make the order. If the person is unlikely to need detained under the Mental Health Act 1983 then there is, generally, no real need for them to have a nearest relative.

Then the statement needs to set out which grounds apply, and why. For example, if you are saying that there is no nearest relative, you’ll need to set out the steps taken to identify a nearest relative: what P says about their family, any family mentioned in social or health care notes etc. If the known family have died then that needs to be stated. That’s usually relatively straightforward.

If you are saying the nearest relative is unsuitable to act, then you need to evidence that. An easy way to do this is to have a social worker or health professional who knows the nearest relative put down, in writing, a summary of their needs, or attach a capacity assessment. Watch out for data protection here though, because there isn’t an automatic right to share the nearest relative’s personal information with the court. This is usually feasible either with consent or under best interests, depending on whether the nearest relative cares for P’s wellbeing or not and the individual impact on the nearest relative of sharing or not sharing the information.

If the ‘otherwise unsuitable’ ground is relied on, then you’ll have to set out how that person is unsuitable, and the evidence that supports your view in that regard. What that entails will vary depending on the reasons why the person is unsuitable. Following on from the example in my last post, this might include the allegations P has made against the nearest relative and the impact on P’s health and wellbeing if the nearest relative is consulted.

Where either of the ‘unreasonable’ grounds are relied on, the nearest relative’s views and behaviour will need to be set out, the attempts taken to discuss with the nearest relative and resolve any disagreements and generally why this is unreasonable and not just disagreement. That is a really important distinction guys, trust me.

Once you’ve proven your grounds, the next step is to set out who the nearest relative will be. It’s good practice to go through the hierarchy, and if you’re not suggesting the next person, you’ll need to say why e.g. Both spouse and son both lack capacity. A judge will be reluctant to appoint someone who doesn’t feature in the hierarchy, so if that is what you are proposing, set out your reasoning clearly. If that person already holds an LPoA that is relevant, since P has nominated that person as decision maker on their behalf and that will carry a lot of weight with the judge. If you’re proposing the local authority, then you’ll need to set out why there is no one else to undertake that role because that’s never going to be the judge’s first choice. Your lawyer should also check the Council’s constitution and scheme of delegation to make sure the correct person is appointed.

And this is, perhaps, the most easily overlooked part, the proposed nearest relative should be spoken to, and confirm their willingness to act and understanding of the role. If they’re willing to put it in writing for you to exhibit to their statement, even better.

It’s good practice to speak to P and get their views on the displacement and the proposed new nearest relative too, and capture that in your statement too. Their views aren’t determinative, but again, they’ll carry a lot of weight. The point of these proceedings is to give P some rights protection, after all, so it is generally best for the judge to consider their views.

Covering all of this in your initial statement is likely to take a bit more time at the outset, in preparing the papers, but it can save a lot of time later on, because the judge will hopefully have everything they need from the off, and hearings won’t be delayed whilst further evidence is sought. I’m a fan of ‘front loading’ applications as much as possible.

The usual tips about writing a statement also apply: first person, narrative, be clear on your source of information and where you are giving your professional opinion, set out your reasoning.

In addition to the witness statement, there will need to be a part 8 claim form, which will likely be written by the legal team and there is a court fee to pay. In writing that, there are 2 more things to consider:

Firstly, who needs to be a respendent to the proceedings. If you are displacing someone, they need to be given the opportunity to speak to the court too, so need to be named in the papers. If you’re not naming them, for example, because they are incapacitated, then you’ll need to persuade the court that it isn’t appropriate for them to be added. That means it’s time for the lawyer to do some detailed grounds. We love that, we’re massive nerds.

Secondly, the duration of the order. This will very much depend on the circumstances. For example, if you are displacing because of an unreasonable objection, the judge is probably going to be more minded to make a short term order, for the duration of the current detention, perhaps. A family member who is raising issues is a pretty good protection against arbitrary detention, after all. But if the nearest relative is incapacitated because of dementia and unlikely to improve, then a longer order is more likely to be justified, especially if they are likely to regularly come under Mental Health Act 1983 frameworks. If the nearest relative has continually used their powers unreasonably then a longer term order might be justifiable. But its important to think about this when preparing the application, otherwise you might be caught unawares in a hearing, and that’s not fun for anyone.

Once you’ve done all of that, then you should be in a position to make the application. We’ll talk about the next steps in part 3.

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