Even the least contentious aspect of the Mental Health Bill has one or two secrets of its own. David Hewitt explains why
Although the new Mental Health Bill is likely to prove as controversial as the preceding drafts, its provisions about the nearest relative (NR) are considered comparatively benign.
The problem
When patients are detained under the Mental Health Act 1983 (MeHA 1983), their NRs have a significant role to play. But the mechanism by which the NR is identified is fixed and inflexible. So much so that the government has been forced to admit that it breaches the European Convention on Human Rights (the Convention), Art 8 (see JT v United Kingdom (application 26494/95), 30 March 2000; FC v United Kingdom (application 37344/97), 7 September 1999; R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin), [2003] All ER (D) 307 (Apr)). The government has therefore made several attempts to give patients more say in the appointment process.
The white paper
In a white paper published in January 2001, the government announced that the NR would be replaced by a nominated person (NP), who would be appointed by a social worker (see Department of Health (DoH) and Home Office, Reforming the Mental Health Act (Cm 5016)). In truth, these proposals departed little from MeHA 1983, and they would probably have been susceptible to challenge under the Convention (see 151 NLJ 6996, p 1202).
The first draft Bill
The first Draft Mental Health Bill was published in June 2002. Like the white paper, it sought to extend compulsion into the community. The social worker would have been transformed into an approved mental health professional (AMHP), who would have appointed—though not necessarily selected—the NP (see DoH, Draft Mental Health Bill (Cm 5538) (the 2002 draft Bill), cl 14(4)).
The AMHP would have had to appoint as NP anyone selected by an adult patient, unless that person was:
incapable or unwilling to act;
‘unsuitable’ because of their relationship with the patient; or
disqualified by subsequent regulations (see the 2002 draft Bill, cl 148(3), (4)).
If the patient’s selection was unacceptable, the AMHP would have chosen the NP, from a list that gave precedence to a carer, then to a spouse or partner, then to a parent, and then to an adult child (see the 2002 draft Bill, cl 148(6)).
A carer would be someone who gave “a substantial amount of care to the patient on a regular basis”, provided such care was not given under contract or by a voluntary organisation (see the 2002 draft Bill, cl 177(1)). For carers related to patients, the list would therefore correspond to MeHA 1983 (see MeHA 1983, s 26(1)); if, however, the carer was not a relative of the patient, the list might have accorded them a precedence they would not enjoy under MeHA 1983.
Under the 2002 draft Bill, a cohabitee of the patient, whether heterosexual or homosexual, would have been the NP, regardless of the length of cohabitation (see the 2002 draft Bill, cl 148(6)(b)). The definition of partner was broader than anything in MeHA 1983 (see the 2002 draft Bill, cl 158(4)).
The same prohibitions would apply here as where the NP was chosen by the patient (see the 2002 draft Bill, cl 152(4)). Furthermore, provided it was neither inappropriate nor impractical, the AMHP would have had to consult the patient about the choice of NP (see the 2002 draft Bill, cl 152(8), (9)).
That would be the limit of the AMHP’s obligations, and there would have been nothing to stop them appointing as NP someone to whom the patient was implacably opposed. However, the patient would have had the power of veto: if capable of doing so, the patient would have been able to serve written notice, preventing the NP from acting, or being recognised, as such (see the 2002 draft Bill, cl 157(4), (6)).
Finally, a patient—and possibly the AMHP—would have been able to apply to the new Mental Health Tribunal (MHT) to revoke the appointment of a NP (see the 2002 draft Bill, cls 148(4), 156(2), (3) and 154(1)). This would be because the circumstances were such that, had they not been appointed already, the NP would not have been entitled to be appointed at all.
The second draft Bill
The second Draft Mental Health Bill was published in September 2004. Again, it would have entitled a patient to select the NP but have left to the AMHP the task of appointment (see DoH, Draft Mental Health Bill (Cm 6305) (the 2004 draft Bill), cl 19(5)(a)).
The AMHP would have had to appoint as NP the person selected by the patient, provided that person was both suitable and eligible (see the 2004 draft Bill, cl 233(5)).
The term ‘suitable’ was not defined in the 2002 draft Bill, but it was clear the AMHP would have had considerable discretion in this regard (see the 2004 draft Bill, cl 232(5)). People would be eligible to be appointed as NPs if they were willing to act as such and were not disqualified, either by subsequent regulations or because they were rendered incapable by illness (see the 2004 draft Bill, cl 232(2), (4)).
Although no such regulations were ever made, the government promised that it would “enable ministers to disqualify certain categories of people from being nominated persons eg it is likely that a convicted child abuser in the case of a child patient will be disqualified; a person under the age of 16 will also be disqualified” (see the 2004 draft Bill, Explanatory Notes, para 414).
However, even if eligible, NPs need only have been considered for appointment by the AMHP if they were “related to or connected with” the patient (see the 2004 draft Bill, cl 232(6)).
In the absence of any regulations, the discretion to decide who might be suitable or eligible, and who might be insufficiently proximate, would have made it relatively easy for an AMHP to disregard the patient’s choice of NP.
If the patient’s choice could not be accepted, the AMHP would have chosen the NP, and this time there would have been no statutory hierarchy to guide, or restrict, the AMHP. The person appointed by the AMHP would simply have been the most suitable of all the eligible ones, and it would have been up to the AMHP to decide who that was (see the 2004 draft Bill, cl 233(6)(a)). There was no indication in the 2004 draft Bill how that decision might be made.
Once more, provided it was neither inappropriate nor impractical, the AMHP would have had to consult the patient about the choice of NP. Although, again, any reservations the patient expressed could have been disregarded. The patient would also have retained the power of veto (see the 2004 draft Bill, cls 235 and 239(3), (2)).
Finally, the power of revocation, which the 2002 draft Bill had given to the MHT alone, would now be exercisable by the AMHP as well. There were even circumstances in which, if the patient so asked, the AMHP would have been compelled to exercise that power (see the 2004 draft Bill, cls 241(1) and 242(2), (3)).
draft Choices
It would have been easier to disregard the patient’s choice of NP under the 2004 draft Bill than under the 2002 draft Bill. Though each would have ruled out a NP that was incapable of acting as such, excluded by regulations or unsuitable, the 2004 draft Bill would also have permitted the AMHP to ignore someone that did not appear to be related to, or connected with, the patient. No such power was contained in the 2002 draft Bill.
It would also have been harder to revoke the appointment of a NP under the 2002 draft Bill than under the 2004 draft Bill. Although both would have permitted the MHT to order revocation, only the latter would also have given that power to the AMHP. And it would have made revocation possible on the additional, if somewhat vague, ground that the AMHP considered it ‘appropriate’. The two draft Bills have, however, fallen by the wayside.
The new proposals
The government has finally introduced its plans for MeHA 1983; it no longer intends to repeal it, and seems content to make a number of significant amendments.
To that end, the government has introduced a substantive Mental Health Bill. If carried through, it would change the NR provisions in MeHA 1983:
Some homosexual cohabitees would be treated as spouses. If they were in a civil partnership under the terms of the Civil Partnership Act 2004, each would be the NR of the other regardless of the length of their cohabitation (see DoH, Mental Health Bill, 2006, HL Bill 1 54/2, cl 24). In this respect, they would have greater rights than heterosexual cohabitees.
A patient—and not just a social worker or a relative—would be able to seek the displacement of the NR (see Mental Health Bill, cl 21).
There would be a further ground for displacement ie if the NR of the patient was “not a suitable person to act as such” (see Mental Health Bill, cl 21(5)(b)).
Comparative analysis
A comparison of the government’s attempts to honour its promise to comply with the Convention reveals a number of intriguing things:
Even once amended, MeHA 1983 would give patients no say in the initial selection of their NRs. Under the two draft Bills, however, the patient would have made that selection. Although an AMHP could have rejected the patient’s choice—on grounds of suitability or capacity, for example, or because regulations had been breached—the discretion to appoint a NP would be limited by the patient’s significant power of veto. The amended MeHA 1983 would contain no such power.
In certain circumstances, either draft Bill would have required the AMHP to consult a patient about the person that was to be appointed as the NP. That is not the case in respect of the NR under MeHA 1983.
Although the 2002 draft Bill contained fixed selection criteria, they were more sophisticated than those in MeHA 1983. For example, they would have given carers precedence, even if they weren’t relatives of the patient; and they would have made a cohabitee a patient’s NP regardless of the length of their cohabitation—and even if the two were heterosexual. Except in the case of civil partners, even the amended MeHA 1983 would not go that far.
The 2004 draft Bill dispensed with fixed selection criteria altogether, and would have given the AMHP a power that will still be denied to the approved social worker (ASW)—simply to appoint as NP the most suitable candidate for the role.
The power of revocation that appeared in both draft Bills resembles that of the court under an amended MeHA 1983, to displace an unsuitable NR. The 2004 draft Bill, however, would have given the power of revocation, not just to the MHT, but also to the AMHP. The AMHP might, of course, have used that power to confound a patient. Equally, however, there would have been circumstances in which the patient would have been able to require the AMHP to revoke the appointment of a NP. Neither an ASW nor a patient would have any such power under the current Act.
By abandoning its plans for a new Mental Health Act, the government has limited the scope for innovation. This is particularly evident from the proposed NR provisions. It is likely that the position achieved in any amended MeHA 1983 will be less favourable to patients than is commonly supposed, and less so than it might have been.
David Hewitt is a partner in Hempsons. He appeared as a witness before The Joint Committee on the Draft Mental Health Bill (see the committee’s final report, HL Paper 79–I HC 95–I, session 2004–05), and is the author of The Nearest Relative Handbook, which is forthcoming from Jessica Kingsley Publishers. E-mail: dwh@hempsons.co.uk
