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Merrill v Herefordshire District Council [1999] EWCA Civ 1976

It had been within the judge’s discretion not to adjourn displacement proceedings involving a nearest relative alleged to be mentally incapable of acting as nearest relative who sought an adjournment in order to obtain legal representation; and the displacement order was open to the judge on the evidence. It was suggested that the displaced nearest relative had no right to apply to the Mental Health Review Tribunal. [MHLR.]

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 1999 are available here: MHLR 1999.

Whether the displacement of the nearest relative in light of the contested evidence was proper; whether there should have been adjournment to allow legal representation - AM v Herefordshire County District Council [1999] MHLR 145

Points Arising: It had been within the judge’s discretion not to adjourn displacement proceedings involving a nearest relative alleged to be mentally incapable of acting as nearest relative who sought an adjournment in order to obtain legal representation; and the displacement order was open to the judge on the evidence. It was suggested that the displaced nearest relative had no right to apply to the Mental Health Review Tribunal.

Facts and Outcome: On an appeal against the displacement of a nearest relative on the basis that the nearest relative’s own mental health problems meant that he was incapable of acting as nearest relative, the grounds of which related to the judge’s failure to adjourn to allow arrangements for legal aid and representation and his failure to give sufficient weight to expert evidence in support of the nearest relative’s position that the patient did not need to be in hospital, the Court of Appeal held that there had been evidence to justify the judge’s conclusions on the merits and he correctly construed the law, and he was entitled to exercise his discretion to refuse an adjournment. The Court also commented, though noting that it had not had full argument, that the effect of the displacement was that the nearest relative could not apply to a Tribunal (since that right, given to the nearest relative, was a function that was taken over by the replacement) and instead had to apply to the County Court to vary or discharge the displacement order.

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