Court process: displacement of nearest relative – part 3 obtaining the order and what happens after that

This post discusses the process after an application has been made to displace and/or appoint a nearest relative in the county court. Details on how to get to that point and in my previous posts.

So, the legal representative will send the part 8 claim form, a draft order and the evidence provided by the AMHP to the county court local to where the person resides. In my area, the court is happy to make a decision on the papers where there is no disagreement, so we ask them to do that in appropriate cases in the application and covering letter.

That is never the case when we are displacing on the grounds of unreasonableness, but where there is clear evidence that the nearest relative lacks capacity to carry out that role, or where the nearest relative cannot be identified, then the court will often decide the matter on the papers and just send us the order back. Which is why it is in everyone’s interests for the AMHP to provide detailed evidence on all of the relevant points, including the choice of nearest relative to be proposed.

I have, once, had the court come back to me and ask what protection the appointment of the relevant officer of the local authority provided which was a very good point. There is no requirement for the judge to appoint an acting nearest relative in any particular circumstances, but if the reasoning is sound, and is set out in detail, then where there is no dispute, we usually obtain an order on the papers.

Of course, when it is contested, that’s a different story. This usually happens when the grounds relied on are related to unreasonable behaviour but could also happen if the nearest relative didn’t agree with a capacity assessment, for example. But yeah, if you can’t evidence all is agreed, then you have a dispute.

In that case, you are likely to receive a directions order and a hearing date back from the Court. Both will need shared with the nearest relative who is being displaced. The patient and the proposed new nearest relative might also be invited to attend the next hearing, depending on who they are and their level of understanding etc and what is in your evidence.

Often this will be a pretty short notice, although it is worth remembering that any detention under s2 is extended whilst an application to displace the nearest relative is ongoing thanks to s29(4) Mental Health Act 1983. But I’ve had to get myself to court on less than a day’s notice before, which is the reason why most seasoned lawyers in any litigation type role keep a spare suit jacket in their office.

Since the application is made in an AMHP’s name, generally the court will expect them to attend too. On behalf of local authority lawyers everywhere, I ask you not to fight with your lawyer on that. If they ask you to be there, please just be there unless you have a very good reason why you can’t.

Where timescales allow, the nearest relative should be given copies of the application papers and evidence in advance of the hearing. But if this is being done urgently, then they may have to be given the papers when they arrive at court. Of course, if you are operating in covid-land where hearings are remote, then handing papers over won’t be viable and secure electronic means will be needed.

It is very unlikely that a judge will make a final decision on a disputed application at the first hearing, especially if this has been listed on short notice. This is because the nearest relative (or the patient themselves if they are objecting) won’t have had an opportunity to put their position before the court. That means the court is only getting half a story, and they hate making a decision without all of the information (don’t we all). But in exceptional urgency, they will and the nearest relative will be asked to set out their position during the hearing.

Most of the time, though, the judge will set directions out for further evidence from the parties, and then list another hearing. The nearest relative will then be given a deadline by which they have to set out, in writing, why they shouldn’t be displaced, which is often around evidencing that their behaviour has been reasonable. Because there is a difference between being unreasonable and having a view that is contrary to professionals’ views.

In a case of a blatant, genuinely unreasonable nearest relative they are likely to either ignore that timescale completely and just send lots of emails to the AMHP and/or court. Or they’ll send a witness statement that refers to a lot of irrelevant grievances from previous years and, in doing so, make the AMHP’s point for them. Those are the ones that get resolved nice and quickly.

Those are few and far between, in my experience. Most of the time, the nearest relative will have a reason they are objecting or pushing for discharge. There is usually some logic as to why they are disagreeing with the professionals. Which means it is much harder to prove they are being unreasonable. That’s where us lawyers start to earn our (really not as high as you think) pay cheques.

In those cases, expect a full hearing with some questionning of the evidence of the AMHP and nearest relative. Whilst this won’t be as dramatic as it looks on telly, it can still be quite tense and it’s not fun. The aim is to explain to the judge why he or she should agree with you, by setting out your reasons clearly and logically. Presenting in a professional manner will go a long way to convincing the judge. So speak clearly, dress smartly and answer the questions asked.

At the end of this, you’ll hopefully get an order back from the court appointing a new nearest relative. The order will say how long it will last. This might be for the duration of the current detention, or it could be for a set time period, or it might be ‘until further order’ which basically means until someone applies to the court to change the order.

So that order needs to be kept on the patient’s file as long as it is in effect. And the new nearest relative needs to have a copy too. And any function to be carried out by the nearest relative has to be carried out by the appointed nearest relative. So they should be consulted for all future decisions on detention whilst the order is in force. And they have the powers and duties of the nearest relative for the duration of the order.

And that is my overview of this court process.

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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