1.0 To Displace a Nearest Relative Initial Consultation with Legal Services Preparation for the Application to Court 3

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1 MENTAL HEALTH ACT PROCEDURE NO 5 PROCEDURE FOR:- 1. DISPLACEMENT OF NEAREST RELATIVE 2. DELEGATION OF THE FUNCTION OF NEAREST RELATIVE CONTENTS PAGE PAGE NUMBER PART To Displace a Nearest Relative Initial Consultation with Legal Services Preparation for the Application to Court Application to Court The Court Hearing Case Management Directions Final Hearing The Order 6 PART 2 9. Delegation of the Function of Nearest Relative 7 Appendices 1 Form for Delegating Function 8 2. Form for Rescinding Delegation 9

2 PART 1 1. TO DISPLACE A NEAREST RELATIVE The patient; Any relative of the patient, (as defined s26 of the Act); Any other person who lives with the patient (or, if the patient is currently a hospital in-patient, was living with them before they were admitted); An AMHP. Any of the above may apply to the County Court for an Order directing that the functions of the nearest relative of a particular patient shall be exercised by the Local Authority or another person as directed by the Court. (section 29). The adult client must be a patient within the meaning of section 145 of the Mental Health Act, i.e. suffering or appearing to be suffering from mental disorder (as defined in Section 1 of the Act). For the definition of nearest relative, see section 26 of the Act. The application can be made on any of the following grounds: - a) That the patient has no nearest relative within the meaning of the Act, or it is not reasonably practicable to ascertain whether they have such a relative, or who that relative is; b) That the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness. c) That the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment (Section 3 of the Act), or a Guardianship application in respect of the patient (Under Section 7 of the Act); d) That the nearest relative of the patient has exercised without due regard to the welfare of the patient, or the interest of the public, his power to discharge the patient from hospital or guardianship, or is likely to do so. e) That the nearest relative of the patient is not otherwise a suitable person to act as such. If an application under section 29 of the Act is being considered, generally, the following steps will need to be taken: - 2. INITIAL CONSULTATION WITH LEGAL SERVICES Dependent upon the urgency of the situation, this could be by telephone, by , or preferably by arranging a meeting with a solicitor. If time allows for a meeting to be convened, it will be helpful for the solicitor to have sight of the following documents in advance of the meeting: 2

3 Any minutes of adult safeguarding case conferences, or planned meetings. Any medical/psychiatric reports in respect of the client as to their mental health and capacity. Where available/possible, a chronology of relevant events. Any other documents/information on your file that would assist the solicitor to advise you whether an application under Section 29 may be appropriate. If it is agreed that an application under Section 29 Mental Health Act should be pursued, you will need to be in a position to provide the solicitor with the following information, in order that the necessary paperwork can be completed: Full name of patient and date of birth Full address of patient and names of persons living with the patients (where the patient is in residential care details of who cared for them previously). Full name and address of the nearest relative. Confirmation that the person is the nearest relative, and why. Do they also care for the patient? 3. PREPARATION FOR THE APPLICATION TO COURT The solicitor will complete the application form (Called a Claim Form ) with the information you have provided. The AMHP will need to prepare an affidavit in support of the application. 3.1 The Affidavit The affidavit should, other than in an emergency situation, be typed, and each paragraph numbered. The affidavit should be written in full sentences rather than bullet points. Please remember that the Judge at the hearing will decide the application largely upon the information contained in your affidavit, and it should therefore be as comprehensive as possible. The affidavit should start: I (enter name) of the.team (enter professional address) make oath and say as follows: I make the affidavit in support of the Local Authority s application for a direction that I exercise on behalf of (insert patient/clients name), pursuant to Section 29 of the Mental Health Act The affidavit should then please go on to include the following information: The AMHP s qualifications and relevant experiences Full chronological information in respect of your department s involvement with the patient/client. It is necessary to go through the file in detail setting out the client s history, insofar as this is relevant. It is important that the information is provided chronologically, and the precise dates are given for any relevant incidents/referrals, etc. If the information is not within the author s own personal 3

4 knowledge, but recorded on the file following referrals from, for example, other professionals, police, etc, please give the name of the person/source of the information, and their professional status. It is important that a full explanation is given of all contacts the department have had with the nearest relative, and that person s attitude. The AMHP should avoid giving opinion evidence outside their own area of expertise, but should feel free to state what the expert evidence of the psychiatrist is, or the view of the professionals involved with the client is, within the affidavit. The affidavit should end with some form of conclusion setting out clearly the grounds upon which the application is being made (see above), and why the AMHP believes those grounds are met in the circumstances of the particular case. Argument may need to be presented as to why a particular Care Plan for the client is necessary and why any alternative proposals put forward by the nearest relative are not appropriate. The affidavit should end as follows: Sworn at On The Day Of Before me An officer of this Court/Solicitors The detail and content of the affidavit will vary dependent upon the grounds upon which the application is being made. If you are in any doubt, please consult your Solicitor. In the case of applications under Section 29(3)(a) or (b) Where there is no nearest relative or a nearest relative cannot be found/identified; or where the nearest relative is incapable of acting because of Mental disorder or other illness the conclusion should specify the length of the order sought, with supporting reasons. If the application is for an urgent or ex-parte (without notice to the nearest relative) order, the affidavit should give full reasons as to the urgency of the situation. The solicitor will advise whether an ex-parte application is appropriate (note that there are Human rights Act implications when using ex-parte proceedings). Your affidavit would need to be sworn at a solicitor s office. A small fee is normally payable. Your solicitor will advise you about this. 3.2 Other Documentation In addition to preparing an affidavit in support of the application, the AMHP should, where possible, also provide legal services with the following documents: A full psychiatric report by the Responsible Clinician on the patient/client setting out their psychiatric history, diagnosis, prognosis, and the reasons why detention or guardianship are appropriate. Where the application is on the grounds that the nearest relative unreasonably objects to an application for admission for treatment, or for reception into 4

5 guardianship, the necessary medical recommendations in support of the admission for treatment/guardianship application. In cases where the nearest relative is incapable of acting because of mental disorder or other illness, a full psychiatric report on the nearest relative by a psychiatrist, or other appropriate medical practitioner, again setting out their history, diagnosis and prognosis, and why that person is incapable of acting as nearest relative. Please consult with your solicitor as to whether these and/or any additional documentation will be required. 4. THE APPLICATION TO COURT When all the necessary documentation has been prepared, the solicitor will lodge the application with the County Court. The Local Authority is the applicant or Clamant and the nearest relative will be the Respondent or Defendant to the section 29 application. The County Court will then issue the application, and will return the papers to legal services with a notice, setting the date the Court have listed for the hearing. It would be helpful if, when you forward the final paperwork to legal services, you could also let the solicitor have details of your availability to attend Court for a hearing during the next 4-6 weeks, to try and ensure that the Court does not list the case on a day that you are not available. When the paper work is returned by the Court, except in ex-parte applications, arrangements will have to be made for it to be served upon the nearest relative. You may be asked to deliver the document to the nearest relative. In some cases, Legal Services may be able to arrange a process server to serve the documents upon the nearest relative, provided they have the necessary authority from the managers to incur that expenditure. The date set for the Court hearing should not ordinarily be less than 21 days after the nearest relative has been served with the papers. However, the Court does have power, in appropriate circumstances, to shorten the time for service, and list the case for an earlier hearing. In very urgent cases, the Court has power to list the case for hearing, without the nearest relative having to be notified. You will need to discuss how urgent the application is what your solicitor when you provide initial instructions, so that appropriate representation can be made to the Court. Once the papers have been issued as above if the patient is currently detained under s2 that sec 2 will continue until the Court decides not to displace the nearest relative or if they do for a further 7 days to allow the application for s3 to be completed. 5

6 5. THE COURT HEARING The Judge at the hearing has discretion whether or not to make an Order displacing the nearest relative, notwithstanding that one of the grounds in Section 29 (3) has been satisfied. Dependent upon the urgency of the application, the Court may either make the Section 29 Order at the first hearing, or may simply give case management direction. 6. CASE MANAGEMENT DIRECTIONS This means that the Court will generally consider whether the nearest relative intends to oppose the application, how urgent it is and how much time the nearest relative has had already to consider and take advise upon the Local Authority s application, etc. the court may give directions to the Local Authority filing further relevant evidence, or the nearest relative filing evidence in opposition to the Local Authority s application, and setting dates timetabling the cases towards a full hearing of the Section 29 application. 7. FINAL HEARING The Court may or may not make a Final Order under Section 29 at the first hearing of the application. If the nearest relative attends Court and opposes the application, it may be necessary for the AMHP, and possibly the Psychiatrist, etc., to give oral evidence and be cross-examined. It is important, therefore, that the AMHP is fully familiar with their file, and the history of the matter, before attending Court so that they are able to answer questions that may be put to them. The Court does have the power to make an Interim Section 29 Order, pending the final hearing. It is advisable for a manager to attend Court with the AMHP to assist in any decisions that need to be taken. 8. THE ORDER Once the Court has made a Final Order, it continues in force until it is discharged or varied by the Court, or on expiry of the period specified for its duration. Other considerations apply in those cases where admission for treatment/guardianship is being pursued. A nearest relative who has been supplanted by an order under Section 29 can apply to a Mental Health Act Review Tribunal for the patient s case to be reviewed. 6

7 PART 2 9. DELEGATION OF THE FUNCTION OF NEAREST RELATIVE The nearest relative can delegate the function of nearest relative to any other person (note this person does not have to be a relative). The form attached as appendix 1 can but does not have to be used but the delegation must be in writing and nominate a person to take up the role. The person must be willing to take up the role. The person to whom the role is delegated can operate the full range of the nearest relative s powers with the exception of delegating it to another party. This person is acting on behalf of the actual nearest relative and the nearest relative can withdraw their delegation at any time in order either to take up the role themselves or to delegate to another person. Withdrawal must be in writing and the form reproduced as appendix 2 can but does not have to be used. 7

8 APPENDIX 1 Regulation 24 of the Mental Health Regulations 2008 LETTER FROM THE NEAREST RELATIVE UNDER THE MENTAL HEALTH ACT 1983 DELEGATING THE FUNCTIONS TO ANOTHER PERSON I, BEING (within the meaning of sec 26 of the Mental Health Act 1983) THE NEAREST RELATIVE OF HEREBY AUTHORISE TO EXERCISE THE FUNCTION UNDER THE ACT OF THAT PERSON S NEAREST RELATIVE. This authorisation is to last (please tick one box) Until further notice Until (specify date) Until the end of the current detention/guardianship I understand I may revoke this authority at any time (despite whichever box is ticked above) by giving notice in writing to the person authorised, the Hospital Managers and, if the person is subject to Guardianship, the Local Authority. I agree for a copy of this letter being passed to: The person I have authorised The Hospital Managers The Local Authority (if the person is subject to Guardianship) Signed Date Print name. I acknowledge receipt of this authorisation to act as nearest relative as detailed above and I am willing to act as such (to be signed by recipient). Signed Date Print name. 8

9 APPENDIX 2 Regulation 24 of the Mental Health Regulations 2008 Letter from the Nearest Relative under the Mental Health Act 1983 rescinding a delegation of the functions to another person I, BEING (within the meaning of sec 26 of the Mental Health Act 1983) THE NEAREST RELATIVE OF HEREBY REVOKE MY AUTHORITY FOR TO EXERCISE THE FUNCTION UNDER THE ACT OF THAT PERSON S NEAREST RELATIVE. I agree for a copy of this letter being passed to: The person I have de-authorised The Hospital Managers The Local Authority (if the person is subject to Guardianship) Signed Date Print name. I acknowledge receipt of this de-authorisation to act as nearest relative as detailed above and I confirm I will no longer exercise the function. Signed Date Print name. 9