Part II contents
2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 12ZA, 12ZB, 12ZC, 12A, 13, 14, 15, 16, 17, 17A, 17B, 17C, 17D, 17E, 17F, 17G, 18, 19, 19A, 20, 20A, 20B, 21, 21A, 21B, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34
I, II, III, IV, 4A, V, VI, VIII, IX, X, Schedules
See Nearest relative.
See Civil Procedure Rules 1998.
Changes made by Mental Health Act 2007
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- JT v UK 26494/95  ECHR 133 — Case struck out of list, as friendly settlement reached to ensure MHA compliant with Article 8: MHA to be amended to allow patient to apply for displacement of NR where reasonably objected; and to allow exclusion of certain persons from acting as NR.
- MH v UK 11577/06  ECHR 1008,  MHLO 94 — (1) The ECtHR considered this case, which involved a patient lacking capacity to apply to the tribunal, in three separate stages: (a) The first 27 days of detention under s2. With some emergency detentions a habeas corpus application might be a sufficient remedy, but with this one it would have been wholly unreasonable to expect such an application. Additionally, it would not have been reasonable to expect her nearest relative via solicitors to request a tribunal reference from the Secretary of State. Therefore, neither the patient nor her nearest relative were able in practice to avail themselves of the normal remedy granted by the 1983 Act because the special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking. There was a violation of Article 5(4). The necessary special safeguards 'may well include empowering or even requiring some other person or authority to act on the patient’s behalf' (i.e. referring the case ..→
- M v East London NHS Foundation Trust CO/1065/2009 — The nearest relative's statement to the AMHP that he disagreed with detention under s3 was sufficient to amount to the notification of an objection under s11; it was unaffected, in the absence of any clear evidence of a change of mind, by the failure to state an objection in a subsequent conversation immediately prior to the making of the application.
- R (AX London) v Central London County Court  EWCA Civ 988 — The county court can, on an ex parte application, make an interim displacement order under s29; it is lawful to detain a patient under s3 on the basis of it, although unless there are cogent reasons it is preferable to wait until the final order; even if the order had been declared invalid, the decision to admit the patient would still be valid.
- R (Holloway) v Oxfordshire County Council  EWHC 776 (Admin) — The without-notice interim displacement order under s29, and the subsequent detention under s3, were lawful: (1) neither the culpable failure of the council to inform the NR, nor the failure of the judge to enquire into this, deprived the court of jurisdiction; (2) the safeguards in the Act meant that the interim relief did not cause irreversible prejudice, thus Article 6 was not engaged; (3) (obiter) s6(3) would have provided the Trust with a defence to false imprisonment.
- R (MH) v Secretary of State for the Department of Health (2005) UKHL 60 — Mental disorder — Mental health review tribunal — Discharge of patient — Detained patient incompetent to apply for own discharge — Extension of detention pending determination of approved social worker's application to displace nearest relative — Whether statutory scheme incompatible with patient's Convention right to liberty — Mental Health Act 1983, ss 2, 29(4) — Human Rights Act 1998, Sch 1, Pt I, art 5(4). The scheme for the review of a patient's detention under the 1983 Act was capable of being operated so as to give practical effect to the patient's right, guaranteed by art 5(4) of the European Convention on Human Rights, to take proceedings to have the lawfulness of her detention speedily decided by a court and for review thereafter at reasonable intervals.
[The chapter/paragraph numbers here refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 33. Nearest relatives — paragraphs 33.38 to 33.59
- Mental Health Act 1983 Code Of Practice for England, 8. The nearest relative
- Civil Procedure (Amendment) Rules 2005/352 — These Rules amend the Civil Procedure Rules by enabling a patient to be made a respondent to a s29 nearest relative displacement application. In force 4/4/05. The amended Rule (CCR Order 49 rule 12) was revoked on 6/4/07 but a similar position is retained in CPR PD8A para 18.3 which states: "(1) the nearest relative must be made a respondent, unless (a) the application is made on the grounds that the patient has no nearest relative or that it is not reasonably practicable to ascertain whether he has a nearest relative; or (b) the court orders otherwise; and (2) the court may order that any other person shall be made a respondent."
Appointment by court of acting nearest relative
29.—(1) The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by [the person specified in the order]
[(1A) If the court decides to make an order on an application under subsection (1) above, the following rules have effect for the purposes of specifying a person in the order—
- (a) if a person is nominated in the application to act as the patient's nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);
- (b) otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient's nearest relative and is willing to do so.]
(2) An order under this section may be made on the application of—
- [(za) the patient;]
- (a) any relative of the patient;
- (b) any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, was last residing before he was admitted); or
- (c) an [approved mental health professional]
(3) An application for an order under this section may be made upon any of the following grounds, that is to say—
- (a) that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has 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 or a guardianship application in respect of the patient; [...]
- (d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient [...] under this Part of this Act, or is likely to do so[; or
- (e) that the nearest relative of the patient is otherwise not a suitable person to act as such.]
(4) If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for admission for assessment, an application under this section, which is an application made on the ground specified in subsection (3)(c) or (d) above, is pending in respect of the patient, that period shall be extended—
- (a) in any case, until the application under this section has been finally disposed of; and
- (b) if an order is made in pursuance of the application under this section, for a further period of seven days;
and for the purposes of this subsection an application under this section shall be deemed to have been finally disposed of at the expiration of the time allowed for appealing from the decision of the court or, if notice of appeal has been given within that time, when the appeal has been heard or withdrawn, and "pending" shall be construed accordingly.
(5) An order made on the ground specified in subsection [(3)(a), (b) or (e)] above may specify a period for which it is to continue in force unless previously discharged under section 30 below.
(6) While an order made under this section is in force, the provisions of this Part of this Act (other than this section and section 30 below) and sections 66, 69, 132(4) and 133 below shall apply in relation to the patient as if for any reference to the nearest relative of the patient there were substituted a reference to the person having the functions of that relative and (without prejudice to section 30 below) shall so apply notwithstanding that the person who was the patient’s nearest relative when the order was made is no longer his nearest relative; but this subsection shall not apply to section 66 below in the case mentioned in paragraph (h) of subsection (1) of that section.
- ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 Mental Health Act 2007 s23, s32 & sch 3 by Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 wef 3/11/08; s21 & sch 2 by Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 (England), Mental Health Act 2007 (Commencement No. 8 and Transitional Provisions) Order 2008 (Wales), wef 3/11/08; s55 & sch 11 by Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 and Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 wef 3/11/08