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Re D (mental patient: nearest relative) (1999) MHLR 181

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The approach to whether a relative “cares for” a patient so as to become their nearest relative by reason of s26(4) Mental Health Act 1983 involves the provision of more than minimal care services; the social worker’s decision as to who “appears to be” the nearest relative for the purposes of consultation under s11(4) of the Act has to involve an acceptable approach to the question of who is the nearest relative but did not require the making of enquiries (unless it would be irrational not to make enquiries). [MHLR.]

MHLR

Summary supplied by Kris Gledhill, Editor of the Mental Health Law Reports.

What was required to "care for" patient so as to become the "nearest relative"; and the test to be applied when there is a challenge to the process of consultation carried out by the social worker in the process leading to a s3 detention - Re D (mental patient: nearest relative) [1999] MHLR 181 Admin Ct

Points Arising: The approach to whether a relative “cares for” a patient so as to become their nearest relative by reason of s26(4) Mental Health Act 1983 involves the provision of more than minimal care services; the social worker’s decision as to who “appears to be” the nearest relative for the purposes of consultation under s11(4) of the Act has to involve an acceptable approach to the question of who is the nearest relative but did not require the making of enquiries (unless it would be irrational not to make enquiries).

Facts and outcome: D challenged the lawfulness of his detention under s3 MHA 1983 on the basis that the social worker who applied for detention had consulted his younger child rather than his older child as the nearest relative (in accordance with s11(4) of the Act) and so had consulted the wrong person; the case for the social worker was that the right person had been consulted because the younger child “cared for” the patient within s26(4) of the Act and so was nearest relative. The factual basis for this was that she visited her father weekly, carried out functions such as laundry, and ensured that his financial affairs were in order, including paying his water bill. D’s challenge was dismissed as (i) the younger child’s services were more than minimal and amounted to “caring for” her father; (ii) in relation to s11(4), the social worker had to give an acceptable definition to ordinary words used in the statute, acting with reasonable care, but was not required to make enquiries unless the failure to do so was unreasonable in the sense that no competent and careful social worker would fail to make them. The court could order release if, objectively considered and with s11(4) properly construed, the nearest relative was not consulted.

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