Andoh, Benjamin

English

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Mountbatten Journal of Legal StudiesThe Nearest Relative Again (CaseComment: E v Bristol City Council [2005]EWHC 74 (Admin))Dr. Benjamin AndohIntroductionThe nearest relative is generally an important person in the life of apatient because he/she is often there to help the patient and/or protecthis/her interests in every way possible. Thus, he/she is involved usually,among other things, in the processes of a patient's admission to hospitaland discharge from there. This role relatives have been playing, withstatutory backing, too, for a long time. 1So important was the role that the Mental Health Act 1959 createdthe "nearest relative" and gave him/her statutory rights in relation tohis/her involvement in the compulsory admission and discharge processes.That position is preserved by the Mental Health Act 1983. Section 26 ofthe Act defines "nearest relative" as the person first described in thefollowing list and who is surviving for the time being: (a) husband or wife,(b) son or daughter, (c) father or mother, (d) brother or sister, (e)grandparent, (f) grandchild, (g) uncle or aunt, and (h) nephew or niece.2 Thepowers/rights of the nearest relative under the Mental Health Act 1983include: (a) the right to apply for compulsory admission (for assessment ortreatment) or consent to an application for treatment if he/she is not theapplicant,3 (b) the right to make an order for a patient's discharge4 thoughsome limitations are imposed on that right,S (c) the right to apply to a1 See. e.g.• 55.52 and 65 of the Lunatic Asylums and Pauper Lunatics Act 1845, and 55.5,72 and 79 of theLunacy Act 1890.2 Mental Health Act 1983, 5.26. Thus, whole-blood relatives are preferred to half-blood relatives of the samedescription, and the elder/eldest of two or more relatives are preferred to the other/s of those relatives.3 S.ll, Mental Health Act 1983.4 Ibid., 5.23(2).5 Ibid., 5.25.101Mountbatten Journal of Legal StudiesMental Health Review Tribunal, 6 (d) the right to require examination ofthe patient,7 (e) the right, after the admission of a patient to hospital and inthe absence of objection by the patient, to information relating to thepatient's detention, making an application to a Mental Health ReviewTribunal, discharge from hospital, compulsory treatment, and the MentalHealth Act Commission,8 (f) the right to be informed of the review by thehospital managers or the Mental Health Review Tribunal9 and (g) the rightto be given early notice of the patient's discharge unless the patientb· 10o ~ects.One unsavoury fact, however, is that, despite the extent of thenearest relative's role, mental hospital patients themselves cannot choose,or initiate proceedings to displace, their nearest relative. This is asignificant defect in the current legal provisions relating to the nearestrelative. No wonder there was challenge to it by JT v United Kingdom,llFC v United Kingdom 12 and R (on the application of M) v Secretary ofState for Health. 13Although the law has not yet been changed, the Mental Health Bill200414 still has a provision replacing the nearest relative with the"nominated person", who may be described as a "second-class nearestrelative" because of the much more reduced rights that he/she is given.This unsatisfactory position has already been discussed elsewhere. 15The nearest relative system was again challenged in early 2005 in Rv Bristol City Council. 166 Ibid., s.66.7 Ibid., s.24.x Ibid.. s.132(4).9 Ibid.• s.25(2), for example.10 Ibid., s.133.11 2000 1 FLR 909.12 (1999) App. No. 37344/97.1J [2003] EWHC 1094 (Admin); [2003] 3 All ER 672.14 Introduced after the earlier Bill of 2002 had been withdrawn.15 B. Andoh and E. Gogo, "The Nearest Relative in Mental Health Law", Med. Sci Law (2004), vol. 44, no. 2,pp.140-150.16 [2005] EWHC 74 (Admin).102Mountbatten Journal of Legal StudiesR V Bristol City CouncilThe patient in that case, E, had suffered for many years from chronicmental health problems. Her nearest relative was her sister, Mrs. S, withwhom she did not get on and whom she had not seen for nearly two years.She did not want Mrs. S. to have anything to do with her mental healthcare. She argued that Mrs. S's involvement as her nearest relative wouldcause her significant distress and would be unhelpful to her health. Herconsultant psychiatrist agreed with this.She issued, on 15-9-04, proceedings for judicial review seeking adeclaration that it was unlawful for the defendants or any approved socialworker in the defendants' employment to notify or consult Mrs. S (hernearest relative) without her (E's) consent, and also an order prohibitingthe defendants or any approved social worker in their employment fromdoing the same. Her argument was that informing or consulting Mrs. Sabout her proposed admission to hospital would breach her rights underArt. 8 of the European Convention on Human Rights.The court acknowledged that, in the claimant's case, s.11(3) and (4)of the Mental Health Act 1983 obliged the approved social worker toinform the nearest relative and to consult her in relation to an applicationfor compulsory admission to hospital for treatment. However, if that wereto happen, it would be contrary to the express wishes of the claimant aswell as be harmful to her health. Such contact with Mrs. S (her nearestrelative) would, therefore, in Bennett 1's view, be futile. So, as UnitedKingdom courts are required, under the Human Rights Act 1998, tointerpret Acts of Parliament in a way compatible with Convention rights,the court was able to interpret the Mental Health Act 1983 in a way thattook account of the applicant's wishes and health. It, therefore, made adeclaration that it was impracticable for the defendants (Bristol CityCouncil) to inform or consult the applicant's nearest relative. In the wordsof Bennett J:Section 3(1) of the Human Rights Act 1998 requires the Court, inconstruing section 11 of the Mental Health Act 1983, so far aspossible, to interpret it in a way which is compatible with theclaimant's rights under the European Convention. In myjudgment that is perfectly possible. Indeed, even without thatstatutory imperative, "practicable" and "reasonably practicable"103Mountbatten Journal of Legal Studiescan be interpreted to include taking account of the claimant'swishes and/or her health and well-being.!7CommentAs already mentioned, the nearest relative, to which system this caseis another challenge, is a creature of statute. It was first introduced by theMental Health Act 1959 with good intentions. The nearest relative wasintended by Parliament to have a significant role to play in protecting apatient and/or acting in his/her interests at all important times, e.g., duringthe processes of admission to hospital and discharge from there. However,the concept, "nearest relative", was imposed by statute on patients. He/shewas defined by statute but not chosen by the patient concerned, even if thepatient was competent to do so. In addition, the patient himself/herselfcould not initiate proceedings under the Mental Health Act 1983 to removethat nearest relative. That is still the legal position wday.This is clearly undesirable and unsatisfactory, and may militateagainst the patient's health as well as pose other problems, especially,where (a) the patient and nearest relative do not get on, (b) where thepatient does not want to have anything to do with the nearest relative or (c)where, for whatever reasons (not excluding malice or spite) the nearestrelative is unreasonable and would readily have the patient compulsorilyadmitted to a mental hospital.R v Bristol City Council also reminds us of JT v United Kingdom,FC v United Kingdom and R (on the application ofM) v Secretary ofStatefor Health. In all those four cases the nearest relative system under theMental Health Act 1983, which preserved the position under the 1959 Act,was under challenge.In JT v United Kingdom a female patient, JT, who had a history ofmental disorder, was admitted to a mental institution in 1984 under section 3of the Mental Health Act 1983. Until her discharge in January 1996 herdetention was renewed several times. She complained to the EuropeanCommission of Human Rights that, in violation of Article 8 of the EuropeanConvention on Human Rights, section 29 of the Mental Health Act 1983prevented her from applying to the court to displace/change her nearestrelative who was her mother, who she did not want as her nearest relative. Infact she had had a very difficult relationship with her mother who was still(after having been divorced from him) living with the complainant's step-father, against whom the complainant had made allegations of sexual abuse.17 [2005] EWHC 74 (Admin), para. 20104Mountbatten Journal of Legal StudiesHowever, the U.K. Government initiated a friendly settlement of thecase. The representative of JT and the Government then confirmed to theEuropean Court of Human Rights by letters dated 25 March 1999 andApril 1, 1999, respectively, that JT, the applicant, had accepted theGovernment's offer of settlement. The terms of the settlement, as outlinedby letter dated October 12, 1999, included the Government's promise toamend the Mental Health Act 1983 to (a) give patients the right to apply toa court to displace a nearest relative they had reasonably objected to, and(b) exclude certain persons from acting as nearest relatives. In addition,compensation of £500 plus reasonable legal costs were to be paid to theapplicant.JT v United Kingdom is very similar to FC v United Kingdom, wherethe U.K. Government admitted that section 26 of the Mental Health Act1983, breached Article 8 of the European Convention, agreed to pay thepatient concerned damages of £2,000 and promised to change the legalposition as part of the general review of mental health law in the UnitedKingdom.Moreover, in 2003 the High Court decided, in R (on the applicationofM) v Secretary ofState for Health, where the facts were similar to JT vUnited Kingdom (except that in R's case the nearest relative was thepatient's adoptive father), that sections 26(1) and 29 of the Mental HealthAct 1983 were incompatible with the applicant's right to respect for herprivate life under Article 8(1) of the European Convention on HumanRights. This was because she had no choice over the appointment of hernearest relative and also no legal means to change the appointment of thatnearest relative.All the three cases (JT, FC and M) ought to be applauded becausethey revealed how unsatisfactory the law relating to the nearest relativewas and still is. JT and FC, in particular, caused the Government topromise to change the law. To date, however, that promise has not beenkept. Instead of doing so simply via an amendment of sections 26 and 29of the Mental Health Act 1983 to give patients with capacity the right tochoose their nearest relative and to commence proceedings to replace thesame, the Government promised the electorate a root-and-branch reform ofthe law relating to mental health, which is yet to be accomplished. Where,then, has the morality of promise-keeping gone?The Mental Health Bill 2002 did contain provisions replacing thenearest relative with the "nominated person", but the latter was to havemuch fewer rights than the nearest relative. Thankfully, for reasons other105Mountbatten Journal of Legal Studiesthan the inappropriate or unsatisfactory way the Bill dealt with the nearestrelative issue, the Bill was withdrawn.The new Bill, the Mental Health Bill 2004, also contains provisionsreplacing the nearest relative with the nominated person, again with muchfewer rights. For example, it does not give the nominated person a right todischarge a patient, which currently can be exercised by a nearest relative,subject to a veto by the responsible medical officer: in clauses 60 and 61,regarding discharge of an order authorising assessment or medicaltreatment by the clinical supervisor and Tribunal, respectively, thenominated person is not mentioned as having any right to discharge apatient; he will only be informed about the position after the decision hasbeen made.Does the Bill solve the problem relating to the nearest relative? Theanswer is "No" because its provisions do not clearly give a patient theright to appoint his/her nominated person. Also, although the patient canapply to the Mental Health Tribunal to revoke an appointment and appointanother person,18 which shows respect for the patient's rights under Art. 8of the European Convention on Human Rights, it is still highlyobjectionable that a competent patient can only select, but cannot appoint,the nominated person. The appointment is done primarily by theappropriate approved mental health professional. 19The Bill has also broken away from tradition unnecessarily inreplacing the nearest with the nominated person, who is to have dilutedrights, which do not measure up to those of the nearest relative. Moreover,the term, "nominated person", is loose and rather artificial, failing toreflect any family closeness.Although the Bill does not solve the problem relating to the nearestrelative, it contains some good provisions about the nominated person. TheBill makes a distinction between selection (choice) of a nominated personand appointment of that person: clause 233(4) provides that the appointermust give the patient reasonable opportunity to select a nominated personunless the patient is incapable of making a selection; and clause 233(5)states that the appointer must appoint any suitable eligible person, who isselected by the patient. This is very commendable indeed and, if the Bill ispassed in its present form, will not (because it gives patients the right tochoose their nominated person) violate Art. 8 of the European Conventionon Human Rights.IS See clauses 243 aud 244 of the Bill.19 See, e.g., clause 19(2) and (5).106Mountbattcn Journal of Legal StudiesClause 233(6), taking clause 233(5) further, provides that, if theappointer cannot appoint the person chosen/selected by the patient, theappointer can appoint the most suitable eligible person or the local socialservices authority. One can, however, say that the effect of clause 233(5)and (6) is to take control over the issue of the nominated person away fromthe patient's hands - someone else, not the patient, decides who is asuitable eligible nominee (regarding, especially, clause 233(5)), while theprovisions of clause 233(6) imply that a competent patient's choice canstill be by-passed if the appointee deems the selected person not to be mostsuitable.Nevertheless, as regards the nominated person, the provisions ofclause 233(5) and (6) are progressive, being clearly more thought-throughthan the provisions of the withdrawn Mental Health Bill 2002. Theprovisions of the said clause 233(5) and (6) of the Mental Health Bill 2004playa very useful role: they provide a solution to the problem/s likely toarise whenever a competent patient selects as his/her nominated person aperson who, in actual fact, is unsuitable for one reason or another.ConclusionGiven that four cases, including R v Bristol City Council, have allbeen successful in challenging the present nearest relative system, which isunsatisfactory and constitutes a violation of Art. 8 of the EuropeanConvention on Human Rights, it is difficult to understand why theGovemment has not yet kept its promise to the European Court. Why doesthe Govemment not simply amend sections 26 and 29 of the MentalHealth Act 198320 and thereby let patients be able to choose, andcommence proceedings to replace, their nearest relative, until the root-and-branch reform of the law actually takes place after the present Bill hasbeen thoroughly scrutinised?Dr. Benjamin AndohSouthampton Solent University20 As argued elsewhere (see Andoh and Gogo, op. cit.).107

Case comment: The nearest relative again (E v Bristol City Council [2005]EWHC 74 (Admin))

Solent Electronic Archive

Mountbatten Journal of Legal Studies
The Nearest Relative Again (Case
Comment: E v Bristol City Council [2005]
EWHC 74 (Admin))
Dr. Benjamin Andoh
Introduction
The nearest relative is generally an important person in the life of a
patient because he/she is often there to help the patient and/or protect
his/her interests in every way possible. Thus, he/she is involved usually,
among other things, in the processes of a patient's admission to hospital
and discharge from there. This role relatives have been playing, with
statutory backing, too, for a long time. 1
So important was the role that the Mental Health Act 1959 created
the "nearest relative" and gave him/her statutory rights in relation to
his/her involvement in the compulsory admission and discharge processes.
That position is preserved by the Mental Health Act 1983. Section 26 of
the Act defines "nearest relative" as the person first described in the
following list and who is surviving for the time being: (a) husband or wife,
(b) son or daughter, (c) father or mother, (d) brother or sister, (e)
grandparent, (f) grandchild, (g) uncle or aunt, and (h) nephew or niece.2 The
powers/rights of the nearest relative under the Mental Health Act 1983
include: (a) the right to apply for compulsory admission (for assessment or
treatment) or consent to an application for treatment if he/she is not the
applicant,3 (b) the right to make an order for a patient's discharge4 though
some limitations are imposed on that right,S (c) the right to apply to a
1 See. e.g.• 55.52 and 65 of the Lunatic Asylums and Pauper Lunatics Act 1845, and 55.5,72 and 79 of the
Lunacy Act 1890.
2 Mental Health Act 1983, 5.26. Thus, whole-blood relatives are preferred to half-blood relatives of the same
description, and the elder/eldest of two or more relatives are preferred to the other/s of those relatives.
3 S.ll, Mental Health Act 1983.
4 Ibid., 5.23(2).
5 Ibid., 5.25.
101
Mountbatten Journal of Legal Studies
Mental Health Review Tribunal, 6 (d) the right to require examination of
the patient,7 (e) the right, after the admission of a patient to hospital and in
the absence of objection by the patient, to information relating to the
patient's detention, making an application to a Mental Health Review
Tribunal, discharge from hospital, compulsory treatment, and the Mental
Health Act Commission,8 (f) the right to be informed of the review by the
hospital managers or the Mental Health Review Tribunal9 and (g) the right
to be given early notice of the patient's discharge unless the patient
b· 10o ~ects.
One unsavoury fact, however, is that, despite the extent of the
nearest relative's role, mental hospital patients themselves cannot choose,
or initiate proceedings to displace, their nearest relative. This is a
significant defect in the current legal provisions relating to the nearest
relative. No wonder there was challenge to it by JT v United Kingdom,ll
FC v United Kingdom 12 and R (on the application of M) v Secretary of
State for Health. 13
Although the law has not yet been changed, the Mental Health Bill
200414 still has a provision replacing the nearest relative with the
"nominated person", who may be described as a "second-class nearest
relative" because of the much more reduced rights that he/she is given.
This unsatisfactory position has already been discussed elsewhere. 15
The nearest relative system was again challenged in early 2005 in R
v Bristol City Council. 16
6 Ibid., s.66.
7 Ibid., s.24.
x Ibid.. s.132(4).
9 Ibid.• s.25(2), for example.
10 Ibid., s.133.
11 2000 1 FLR 909.
12 (1999) App. No. 37344/97.
1J [2003] EWHC 1094 (Admin); [2003] 3 All ER 672.
14 Introduced after the earlier Bill of 2002 had been withdrawn.
15 B. Andoh and E. Gogo, "The Nearest Relative in Mental Health Law", Med. Sci Law (2004), vol. 44, no. 2,
pp.140-150.
16 [2005] EWHC 74 (Admin).
102
Mountbatten Journal of Legal Studies
R V Bristol City Council
The patient in that case, E, had suffered for many years from chronic
mental health problems. Her nearest relative was her sister, Mrs. S, with
whom she did not get on and whom she had not seen for nearly two years.
She did not want Mrs. S. to have anything to do with her mental health
care. She argued that Mrs. S's involvement as her nearest relative would
cause her significant distress and would be unhelpful to her health. Her
consultant psychiatrist agreed with this.
She issued, on 15-9-04, proceedings for judicial review seeking a
declaration that it was unlawful for the defendants or any approved social
worker in the defendants' employment to notify or consult Mrs. S (her
nearest relative) without her (E's) consent, and also an order prohibiting
the defendants or any approved social worker in their employment from
doing the same. Her argument was that informing or consulting Mrs. S
about her proposed admission to hospital would breach her rights under
Art. 8 of the European Convention on Human Rights.
The court acknowledged that, in the claimant's case, s.11(3) and (4)
of the Mental Health Act 1983 obliged the approved social worker to
inform the nearest relative and to consult her in relation to an application
for compulsory admission to hospital for treatment. However, if that were
to happen, it would be contrary to the express wishes of the claimant as
well as be harmful to her health. Such contact with Mrs. S (her nearest
relative) would, therefore, in Bennett 1's view, be futile. So, as United
Kingdom courts are required, under the Human Rights Act 1998, to
interpret Acts of Parliament in a way compatible with Convention rights,
the court was able to interpret the Mental Health Act 1983 in a way that
took account of the applicant's wishes and health. It, therefore, made a
declaration that it was impracticable for the defendants (Bristol City
Council) to inform or consult the applicant's nearest relative. In the words
of Bennett J:
Section 3(1) of the Human Rights Act 1998 requires the Court, in
construing section 11 of the Mental Health Act 1983, so far as
possible, to interpret it in a way which is compatible with the
claimant's rights under the European Convention. In my
judgment that is perfectly possible. Indeed, even without that
statutory imperative, "practicable" and "reasonably practicable"
103
Mountbatten Journal of Legal Studies
can be interpreted to include taking account of the claimant's
wishes and/or her health and well-being.!7
Comment
As already mentioned, the nearest relative, to which system this case
is another challenge, is a creature of statute. It was first introduced by the
Mental Health Act 1959 with good intentions. The nearest relative was
intended by Parliament to have a significant role to play in protecting a
patient and/or acting in his/her interests at all important times, e.g., during
the processes of admission to hospital and discharge from there. However,
the concept, "nearest relative", was imposed by statute on patients. He/she
was defined by statute but not chosen by the patient concerned, even if the
patient was competent to do so. In addition, the patient himself/herself
could not initiate proceedings under the Mental Health Act 1983 to remove
that nearest relative. That is still the legal position wday.
This is clearly undesirable and unsatisfactory, and may militate
against the patient's health as well as pose other problems, especially,
where (a) the patient and nearest relative do not get on, (b) where the
patient does not want to have anything to do with the nearest relative or (c)
where, for whatever reasons (not excluding malice or spite) the nearest
relative is unreasonable and would readily have the patient compulsorily
admitted to a mental hospital.
R v Bristol City Council also reminds us of JT v United Kingdom,
FC v United Kingdom and R (on the application ofM) v Secretary ofState
for Health. In all those four cases the nearest relative system under the
Mental Health Act 1983, which preserved the position under the 1959 Act,
was under challenge.
In JT v United Kingdom a female patient, JT, who had a history of
mental disorder, was admitted to a mental institution in 1984 under section 3
of the Mental Health Act 1983. Until her discharge in January 1996 her
detention was renewed several times. She complained to the European
Commission of Human Rights that, in violation of Article 8 of the European
Convention on Human Rights, section 29 of the Mental Health Act 1983
prevented her from applying to the court to displace/change her nearest
relative who was her mother, who she did not want as her nearest relative. In
fact she had had a very difficult relationship with her mother who was still
(after having been divorced from him) living with the complainant's step-
father, against whom the complainant had made allegations of sexual abuse.
17 [2005] EWHC 74 (Admin), para. 20
104
Mountbatten Journal of Legal Studies
However, the U.K. Government initiated a friendly settlement of the
case. The representative of JT and the Government then confirmed to the
European Court of Human Rights by letters dated 25 March 1999 and
April 1, 1999, respectively, that JT, the applicant, had accepted the
Government's offer of settlement. The terms of the settlement, as outlined
by letter dated October 12, 1999, included the Government's promise to
amend the Mental Health Act 1983 to (a) give patients the right to apply to
a court to displace a nearest relative they had reasonably objected to, and
(b) exclude certain persons from acting as nearest relatives. In addition,
compensation of £500 plus reasonable legal costs were to be paid to the
applicant.
JT v United Kingdom is very similar to FC v United Kingdom, where
the U.K. Government admitted that section 26 of the Mental Health Act
1983, breached Article 8 of the European Convention, agreed to pay the
patient concerned damages of £2,000 and promised to change the legal
position as part of the general review of mental health law in the United
Kingdom.
Moreover, in 2003 the High Court decided, in R (on the application
ofM) v Secretary ofState for Health, where the facts were similar to JT v
United Kingdom (except that in R's case the nearest relative was the
patient's adoptive father), that sections 26(1) and 29 of the Mental Health
Act 1983 were incompatible with the applicant's right to respect for her
private life under Article 8(1) of the European Convention on Human
Rights. This was because she had no choice over the appointment of her
nearest relative and also no legal means to change the appointment of that
nearest relative.
All the three cases (JT, FC and M) ought to be applauded because
they revealed how unsatisfactory the law relating to the nearest relative
was and still is. JT and FC, in particular, caused the Government to
promise to change the law. To date, however, that promise has not been
kept. Instead of doing so simply via an amendment of sections 26 and 29
of the Mental Health Act 1983 to give patients with capacity the right to
choose their nearest relative and to commence proceedings to replace the
same, the Government promised the electorate a root-and-branch reform of
the law relating to mental health, which is yet to be accomplished. Where,
then, has the morality of promise-keeping gone?
The Mental Health Bill 2002 did contain provisions replacing the
nearest relative with the "nominated person", but the latter was to have
much fewer rights than the nearest relative. Thankfully, for reasons other
105
Mountbatten Journal of Legal Studies
than the inappropriate or unsatisfactory way the Bill dealt with the nearest
relative issue, the Bill was withdrawn.
The new Bill, the Mental Health Bill 2004, also contains provisions
replacing the nearest relative with the nominated person, again with much
fewer rights. For example, it does not give the nominated person a right to
discharge a patient, which currently can be exercised by a nearest relative,
subject to a veto by the responsible medical officer: in clauses 60 and 61,
regarding discharge of an order authorising assessment or medical
treatment by the clinical supervisor and Tribunal, respectively, the
nominated person is not mentioned as having any right to discharge a
patient; he will only be informed about the position after the decision has
been made.
Does the Bill solve the problem relating to the nearest relative? The
answer is "No" because its provisions do not clearly give a patient the
right to appoint his/her nominated person. Also, although the patient can
apply to the Mental Health Tribunal to revoke an appointment and appoint
another person,18 which shows respect for the patient's rights under Art. 8
of the European Convention on Human Rights, it is still highly
objectionable that a competent patient can only select, but cannot appoint,
the nominated person. The appointment is done primarily by the
appropriate approved mental health professional. 19
The Bill has also broken away from tradition unnecessarily in
replacing the nearest with the nominated person, who is to have diluted
rights, which do not measure up to those of the nearest relative. Moreover,
the term, "nominated person", is loose and rather artificial, failing to
reflect any family closeness.
Although the Bill does not solve the problem relating to the nearest
relative, it contains some good provisions about the nominated person. The
Bill makes a distinction between selection (choice) of a nominated person
and appointment of that person: clause 233(4) provides that the appointer
must give the patient reasonable opportunity to select a nominated person
unless the patient is incapable of making a selection; and clause 233(5)
states that the appointer must appoint any suitable eligible person, who is
selected by the patient. This is very commendable indeed and, if the Bill is
passed in its present form, will not (because it gives patients the right to
choose their nominated person) violate Art. 8 of the European Convention
on Human Rights.
IS See clauses 243 aud 244 of the Bill.
19 See, e.g., clause 19(2) and (5).
106
Mountbattcn Journal of Legal Studies
Clause 233(6), taking clause 233(5) further, provides that, if the
appointer cannot appoint the person chosen/selected by the patient, the
appointer can appoint the most suitable eligible person or the local social
services authority. One can, however, say that the effect of clause 233(5)
and (6) is to take control over the issue of the nominated person away from
the patient's hands - someone else, not the patient, decides who is a
suitable eligible nominee (regarding, especially, clause 233(5)), while the
provisions of clause 233(6) imply that a competent patient's choice can
still be by-passed if the appointee deems the selected person not to be most
suitable.
Nevertheless, as regards the nominated person, the provisions of
clause 233(5) and (6) are progressive, being clearly more thought-through
than the provisions of the withdrawn Mental Health Bill 2002. The
provisions of the said clause 233(5) and (6) of the Mental Health Bill 2004
playa very useful role: they provide a solution to the problem/s likely to
arise whenever a competent patient selects as his/her nominated person a
person who, in actual fact, is unsuitable for one reason or another.
Conclusion
Given that four cases, including R v Bristol City Council, have all
been successful in challenging the present nearest relative system, which is
unsatisfactory and constitutes a violation of Art. 8 of the European
Convention on Human Rights, it is difficult to understand why the
Govemment has not yet kept its promise to the European Court. Why does
the Govemment not simply amend sections 26 and 29 of the Mental
Health Act 198320 and thereby let patients be able to choose, and
commence proceedings to replace, their nearest relative, until the root-and-
branch reform of the law actually takes place after the present Bill has
been thoroughly scrutinised?
Dr. Benjamin Andoh
Southampton Solent University
20 As argued elsewhere (see Andoh and Gogo, op. cit.).
107


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Case comment: The nearest relative again (E v Bristol City Council [2005]EWHC 74 (Admin))

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