The role of consultation with the nearest relative has been reinforced as a necessary safeguard by the court in the recent case of R (on the application of V) v South London & Maudsley NHS Foundation Trust.
The main issue to be considered in this case was whether the requirements of section 11(4) of the Mental Health Act 1983 (MHA) had been complied with. This section prevents an Approved Mental Health Professional (AMHP) from making an application for admission for treatment under the MHA without first consulting that person’s nearest relative, however this does not apply if it appears to the professional that “in the circumstances” such consultation is not reasonably practicable or would involve unreasonable delay.
In considering the relevant circumstances in this case, the court had to consider the circumstances that were known to the AMHP at the time or believed by him/ her to exist. In this case the evidence before the court was that the AMHP made the decision at 12:15 hours that there was not sufficient time to consult with the nearest relative, believing that the current period of detention (under section 5(2) MHA) was not due to expire until 19:30 hours that day. This would have allowed the AMHP over seven hours in which to contact the nearest relative. The court found that this was not a reasonable decision. There was also no evidence that a consultation would have caused unreasonable delay.
The AMHP also gave evidence that she believed that the nearest relative would consent, as consent had been given in the past. The court found that it is not appropriate for a professional to make assumptions as to what the result of the consultation would be.