In the recent case of DP v (1) South Tyneside District Council (2) Northumberland, Tyne & Wear NHS Foundation Trust (2011) a patient (P) was challenging her detention under section 3 of the Mental Health Act 1983 (MHA) where the local authority had failed to consult with her nearest relative in accordance with s11(4) MHA.
P’s nearest relative under the MHA was her father. However, she had made allegations that her family (including her father) had tried to force her to marry against her will and that she had been at risk of being killed.
An approved mental health professional (AMHP) made an application for P to be admitted for treatment under s.3 MHA. However, he did not consult with P's nearest relative as he was concerned that if he disclosed her whereabouts he might compromise her safety and wellbeing.
It is relevant that an earlier first-tier tribunal considered that, although some of her allegations were delusional, some were grounded in reality.
In challenging her detention, P submitted that the AMHP should have contacted her father prior to making an application under s.3 MHA as there was an obligation of consultation which he could have fulfilled without disclosing her whereabouts.
The test to be applied by the AMHP was whether or not it appeared to him to be practicable to consult with P's nearest relative. The court decided that the submission that the AMHP could have fulfilled his duty of disclosure without revealing her whereabouts was not well-founded. The duty of consultation was not simply one of notification.
It would have been impossible for the AMHP to have had a useful consultation with P's father unless he had spoken to him frankly about all matters, including his identity and the place of P's detention. Furthermore, other persons who had considered P's position, including the tribunal, had concluded that there might have been truth in her allegations.
The court concluded that the AMHP had dealt with that dilemma in a way in which a reasonable and responsible mental health professional would have done.