Right to be consulted and to object to s3 admission

The Approved Mental Health Professional must consult the person (if any) appearing to be the NR before making an application for admission under s3 – unless ‘such consultation is not reasonably practicable or would involve unreasonable delay’ – and the s3 cannot go ahead if the NR objects (s11(4)).

When an AMHP is considering whether it is ‘reasonably practicable’ to consult the nearest relative he must strike a balance between the patient’s Article 5 right (not to be detained unless that is done by a procedure that is in accordance with the law) and the patient’s Article 8(1) right (to her private life) (TW v Enfield Borough Council [2014] EWCA Civ 362, [2014] MHLO 26).

Note that the consultation requirement does not apply to s2 detention, in which case the NR must merely be informed rather than consulted. Also, it does not apply to the imposition of a CTO or recall/revocation from CTO.

Section 2 should not be used simply to get round an objection to s3. However, an objection perceived to be unreasonable could lead to displacement proceedings under s29(3)(c).

Decisions not to consult can be challenged in the courts. For instance:

  • An example of the process not being followed was CX v A Local Authority [2011] EWHC 1918 (Admin): the consultation was inadequate and the withdrawal of an objection was based on incorrect and misleading advice (e.g. that the NR would need to be represented at court by a lawyer), so the High Court granted a writ of habeas corpus.
  • In GP v Derby City Council [2012] EWHC 1451 (Admin), [2012] MHLO 58 the High Court held that the ‘unreasonable delay’ justification did not apply, so detention was unlawful.
  • An example of consultation being judged to be ‘not reasonably practicable’ was in DP v South Tyneside DC (2011) Admin Court 14/7/11 where, as consultation is not mere notification so would involve disclosing DP’s whereabouts, it was associated with perceived risk of forced marriage or death.

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