MHA 1983 s11
Revision as of 17:52, 23 November 2008 by Jonathan
Changes made by Mental Health Act 2007
- Approved Mental Health Professional replaces Approved Social Worker 3/11/08
- New regulations on conflicts of interest 3/11/08
- Mental disorder no longer split into separate classifications 3/11/08
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.
- CV v South London and Maudsley NHS Foundation Trust  EWHC 742 (Admin) — (1) In cases involving consultation under s11(4), the AMHP is to be judged according to the circumstances as they appear to her at the time. (2) Given that the AMHP believed (albeit wrongly) that 7 hours remained of the s5(2) detention, the decision not to consult the nearest relative on the ground that it "would involve unreasonable delay" was unlawful. (3) It was inappropriate for the AMHP to assume, based on a previous consultation, that the NR would not object. (4) Subsequent rectification under s15(1) could not be relied upon in the circumstances of this case
- GP v Derby City Council  EWHC 1451 (Admin),  MHLO 58 — The claimant applied for a writ of habeas corpus, challenging the AMHP's decision not to consult the nearest relative (under s11) before making a s3 application. The AMHP's evidence was that, having tried to telephone the NR on five or six occasions, he dispensed with consultation because nursing staff were anxious about the patient's presentation and needed him on s3 to move him to a psychiatric intensive care unit. (1) The question which arises on an application of this sort is whether the AMHP's decision was plainly wrong, or whether it was within the range of appropriate decisions available. (2) In the circumstances his decision was unlawful, in particular because: (a) the notes showed that the claimant had essentially been stable (and, in the event, had not been transferred to the PICU for over two weeks after the s3 began); and (b) the s3 assessment finished about 4.30pm and the s2 was due to expire at midnight, so to drive about 30 minutes to the NR's house would not have ..→
- 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 (C) v South London and Maudsley NHS Trust  EWHC Admin 1025 — Identification of nearest relative in s11(4) is a subjective test - "who appears to him to be the nearest relative" - and the court will not interfere unless the social worker failed to apply the test in section 26 or acted with bad faith, or in some way reached a conclusion that was plainly wrong. Permission to apply for judicial review refused.
- Re GM (Section 3 of the Mental Health Act 1983)  EWHC 642 (Admin) — Habeas corpus - no breach by ASW of s11(4) (consultation with NR) or s13(2) (interview with patient).
- Re Whitbread (No 1) (Habeas Corpus: Compulsory Admission)  EWCA Civ 1944 — The ASW's [now AMHP's] consultation with the nearest relative under s11(4) can take place before his interview with the patient; the Act allowed for a flexible approach. Provided that the social worker explains to the NR that he is considering making an application and why, the NR will be afforded the necessary opportunity for objecting to the application.
- Re Whitbread (No 1) (Habeas Corpus: Compulsory Admission)  EWHC Admin 102 — The ASW's [now AMHP's] consultation with the nearest relative under s11(4) can take place before a full assessment of the patient for the purposes of s3 has taken place, including before the two necessary medical recommendations have been obtained; the Act allowed for a flexible approach.
- TTM v LB Hackney  EWCA Civ 4 — (1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be ..→
- TW v Enfield Borough Council  EWCA Civ 362,  MHLO 26 — The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] is considering whether it is 'reasonably practicable' to consult the 'nearest relative' before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the [AMHP] an obligation to 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 LB Enfield  EWHC 1180 (QB),  MHLO 59 — The applicant argued that her nearest relative ought to have been consulted (under s11) before her s3 detention: she required leave of the High Court under s139(2) to bring a claim against the local authority, and sought a declaration of incompatibility. (1) The threshold for leave under s139(2) 'has been set at a very unexacting level. … An applicant with an arguable case will be granted leave'; the requirements of s139(1) prevent any claim 'unless the act [of applying for the applicant's admission] was done in bad faith or without reasonable care ... or is otherwise unlawful, for example because of a contravention of s11(4)'. (2) Even if s139(2) did have any effect on the applicant's rights under Article 6 read together with Article 14 (which it was not necessary to decide) that effect is plainly justified (the justification being 'the protection of those responsible for the care of mental patients from being harassed by litigation'). (3) If the argument that ..→
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 2. Compulsory admission to hospital under Part 2 of the Act [Note that the chapter number relates to the old Reference Guide], 19. Guardianship and guardianship orders [Note that the chapter number relates to the old Reference Guide] — paragraphs 2.12 to 2.60 passim (detention), 19.23 to 19.47 passim (guardianship)
- Mental Health Act 1983 Code Of Practice for England, 4. Applications for detention in hospital, 11. Conveyance of patients
General provisions as to applications
11.—(1) Subject to the provisions of this section, an application for admission for assessment, an application for admission for treatment and a guardianship application may be made either by the nearest relative of the patient or by an [approved mental health professional]; and every such application shall specify the qualification of the applicant to make the application.
[(1A) No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below.]
(2) Every application for admission shall be addressed to the managers of the hospital to which admission is sought and every guardianship application shall be forwarded to the local social services authority named in the application as guardian, or, as the case may be, to the local social services authority for the area in which the person so named resides.
(3) Before or within a reasonable time after an application for the admission of a patient for assessment is made by an [approved mental health professional, that professional] shall take such steps as are practicable to inform the person (if any) appearing to be the nearest relative of the patient that the application is to be or has been made and of the power of the nearest relative under section 23(2)(a) below.
[(4) An approved mental health professional may not make an application for admission for treatment or a guardianship application in respect of a patient in either of the following cases—
- (a) the nearest relative of the patient has notified that professional, or the local social services authority on whose behalf the professional is acting, that he objects to the application being made; or
- (b) that professional has not consulted the person (if any) appearing to be the nearest relative of the patient, but the requirement to consult that person does not apply if it appears to the professional that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay.]
(5) None of the applications mentioned in subsection (1) above shall be made by any person in respect of a patient unless that person has personally seen the patient within the period of 14 days ending with the date of the application.
(7) Each of the applications mentioned in subsection (1) above shall be sufficient if the recommendations on which it is founded are given either as separate recommendations, each signed by a registered medical practitioner, or as a joint recommendation signed by two such practitioners.
- Mental Health Act 2007 s21 & sch 2, s22, s55 & sch 11; Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 & Mental Health Act 2007 (Commencement No. 8 and Transitional Provisions) Order 2008 wef 3/11/08