Displacement (appointment) by county court
The county court has the power under s29 to appoint a nearest relative for a patient. Where there is an existing nearest relative then this process is called displacement. The legal work in representing the patient or nearest relative is carried out under a Legal Aid means-tested public funding certificate. A solicitor has rights of audience in the county court. There would be potential conflicts in representing both patient and nearest relative.
The functions under the following provisions can be given to the acting nearest relative (by s29(1), (6)):
- Part 2, except s29 and s30;
- s66 (applications to tribunals), except the displaced nearest relative’s right of application in s66(1)(h);
- s69 (applications to tribunals by s37 patients; cf delegation);
- s132(4) and s133 (provision of information).
If the person nominated in the application is suitable and willing then the court shall appoint that person; otherwise it shall appoint someone else who is suitable and willing (s29(1A)).
The following may apply to the county court (by s29(2)):
- the patient;
- any relative;
- anyone with whom the patient is residing (or resided before admission); or
- an approved mental health professional (AMHP).
An application may be made on one or more of the following grounds:
- (a) that the patient has no nearest relative, or it is ‘not reasonably practicable to ascertain whether he has such a relative or who that relative is’;
- (b) that the nearest relative ‘is incapable of acting as such by reason of mental disorder or other illness’;
- (c) that the nearest relative ‘unreasonably objects to the making of an application for admission for treatment [s3] or a guardianship application [s7]’;
- (d) that the nearest relative ‘has exercised without due regard to the welfare of the patient or the interests of the public his power [s23] to discharge the patient under this Part of this Act, or is likely to do so’;
- (e) that the nearest relative ‘is otherwise not a suitable person to act as such’.
If the patient is detained under s2 at the time of an application which is made under ground (c) or (d) above then the s2 detention is extended (by s29(4)):
- (a) in any case, until the application has been finally disposed of (i.e. time to appeal has expired, or an appeal has been heard or withdrawn);
- (b) if a displacement order is made, for a further period of seven days.
The court can make an interim displacement order, which can lead to detention under s3 before the matter has returned to court.
Provisions in relation to the discharge, variation and expiry of displacement orders are given in s29(5) and s30.