Spotlight on the Mental Health Bill: The Nominated Person

Our series covers:

• Assessment and admission
• Nominated Person
• Inpatient issues Part I - treatment
• Inpatient issues Part II - RCs, IMHAs, complaints, discharge
• Community issues Part I - CTOs
• Community issues Part II - conditional discharge, guardianship and aftercare

In this second briefing, we will be focusing on the changes the Bill is proposing in relation to the new Nominated Person role.

Nominated Person - summary of key changes

Reform of the Nearest Relative provisions has been mooted for many years, with the provisions being woefully out-of-date. Whilst there have been some minor amendments and case law has attempted to ‘update’ the interpretation of the provisions, clearly an overhaul is long overdue. One of the obvious issues is, of course, that the person cannot choose who their representative should be. Instead, the representative is identified by applying a statutory hierarchy, without regard to the person’s wishes and feelings, whether the relative identified is appropriate or even has capacity to carry out the role.

Identifying the Nearest Relative can be legally (as well as practically) very complex.

The Bill delivers radical changes, replacing the Nearest Relative with the Nominated Person. Whilst the Nominated Person will broadly keep the same powers that the Nearest Relative currently has, these are extended in some key areas. As with the Nearest Relative role, the AMHP will play a key part in identifying and consulting the Nominated Person. Since the Nominated Person is seen to be a substantial safeguard under the Act, it will be important that the new provisions work in practice.

We outline the key changes, and our thoughts on their potential impact, in more detail below.

Appointment of Nominated Person

What changes is the Bill proposing?

The ‘general intention’ of the provisions is that a person can select who they want their Nominated Person (NP) to be. This could be done at any time, so long as they have capacity/are competent to do so. Ideally, this would be done in advance of any detention, so that the position is clear to the AMHP at the point of any MHA assessment.

If, however, the person lacks capacity/competence to select a NP, then the AMHP will have 'the power' to select and appoint a NP.

The details as to appointment are set out in the new Schedule A1. Part 1 covers appointment of the NP by the person/patient and Part 2 covers the appointment by the AMHP.

Patient appointment

A person has to be eligible to be appointed - i.e. not disqualified by court order and over 16 (for adult patients) or 18 (otherwise).

The appointment is done in writing (presumably forms will be developed), signed and witnessed, with the witness confirming there is no reason to think that the person/patient or NP lack capacity (competence), or that fraud/undue pressure has been applied, or that the NP is unsuitable.

The capable/competent patient can terminate the appointment directly by a signed, witnessed notice or indirectly by appointing another NP. The appointment can also be terminated by the court. The NP can, of course, resign the appointment. The appointment will also be terminated if an AMHP appoints another NP (where the power to do so applies).

AMHP appointment

The AMHP power to appoint only applies where a patient/person is a 'relevant patient' - i.e. where they are detained, being assessed or the AMHP is considering assessing for a s.2/s.3 or a CTO (or subject to/being assessed/considered for guardianship). In those circumstances, where the AMHP 'reasonably believes' that the patient lacks capacity/competence and has not appointed an NP, then the AMHP can appoint an eligible person willing to be the NP (this must be an individual or a Local Authority).

The Nearest Relative hierarchy (s.26) is, of course repealed, and instead guidance is given to the AMHP as to how to select the NP for patients over 16 and those under 16. If there is an LPA donee or court-appointed deputy willing to act (within the scope of their appointment), then they must be appointed. Otherwise, the AMHP makes the selection taking into account the patient's wishes and feelings. For under 16s, priority is given to anyone with parental responsibility (with the Local Authority taking priority if they have parental responsibility).

The appointment is in writing signed by the AMHP who notifies the relevant Hospital Managers, who then have to take appropriate steps to inform the patient.

The AMHP or the capable/competent patient can terminate the appointment directly or indirectly by appointing another NP. The appointment can also be terminated by the court. The NP can, of course, resign the appointment and the appointment also ends when the patient ceases to be a 'relevant patient'.

The AMHP can only terminate the appointment where the NP lacks capacity or is an unsuitable person, or where the patient has regained capacity (competence) to appoint.

Our thoughts

Clearly, focusing on enabling the person to choose their own representative has to be the right starting point. In reality though, this may only work well for those who have the capacity/competence to appoint and someone suitable and willing to be appointed.

For those who never have capacity and/or who have no willing, suitable person to appoint, then it will be down to the AMHP to appoint for them. The AMHP has a power, not a duty, to appoint (though presumably how and when this should be exercised will be addressed in guidance/regulations) and the reality of many (s.2) MHA assessments may mean that the person does not have a NP, whereas the application of s.26 would have identified a Nearest Relative for them.

It seems likely there will be disputes arising as to capacity to appoint and terminate appointments, and as to suitability of those appointed.

Role of the Nominated Person

What changes is the Bill proposing?

The NP will retain all the rights of the Nearest Relative and will gain the additional rights set out below.

However, the current Nearest Relative right to object to, and halt, a s.3 application is amended. The NP will still have to be consulted by the AMHP (unless not reasonably practicable/will involve unreasonable delay). A key change is where the NP objects to the application. Where the NP objects to the application being made, the AMHP can still make it, if they certify that if not so detained the person 'would be likely to act in a manner that is dangerous to other persons or the patient'.

Additional rights include:

• The right to object to a CTO - the RC will need to consult with the NP before discharging a person onto a CTO and cannot proceed if the NP objects, unless that objection can be overridden on dangerousness grounds (as for the s.3 objection)

• The RC will have to consult with the NP prior to renewal of a s.3

• The NP will have to be consulted about care and treatment plans (where practicable and appropriate) and may request a review

• The NP will have to be consulted prior to transfer unless this is not reasonably practicable/will involve undesirable delay

• The AMHP will have to consult with the NP prior to extension of a CTO unless consultation is not reasonably practicable or would involve unreasonable delay

• Where the NP objection is overridden (s.3/guardianship/CTOs) then there will be a right for the NP to apply to the tribunal

Our thoughts

The potential for the AMHP to override the NP refusal to a s.3 is a substantial change.

Whilst this does mean that the current unwieldy process of applying to displace the Nearest Relative may be avoided in such cases, it also removes a key part of the Nearest Relative role. Whilst the NP will have the power to apply to the tribunal, the patient will of course, have been detained at that point.

Part 3 patients

What changes is the Bill proposing?

Unrestricted patients

For unrestricted patients the Nominated Person role (as the Nearest Relative role) is restricted, so that the NP cannot request discharge from section. The NP will, however, be able to object to a CTO, subject to the RC overriding this on dangerousness grounds.

One of the main differences for Part 3 patients, however, will be that the power to appoint a NP where the patient lacks capacity and has not made a nomination falls to the RC rather than the AMHP.

Restricted patients

For restricted patients, who do not currently have a Nearest Relative, there is a power to appoint a Nominated Person. This will also apply to those patients on interim Part 3 provisions. Again the power to appoint, where the person has not done so and lacks capacity, falls to the RC rather than the AMHP.

However, the role of the NP is considerably restricted, with the NP rights being:

• To receive information about care/treatment, unless the patient objects

• To be consulted about the statutory care/treatment plan

• To be consulted about transfers, unless it is not reasonably practicable/would involve unreasonable delay/would be inappropriate

Our thoughts

The right to a NP for restricted patients does potentially increase the patient's safeguards. In reality, however, perhaps understandably, those rights are limited and may take things little further than what may be current good practice in terms of involving family/carers. It will be interesting to see what the Code guidance is on the RC's appointment powers and how this plays out in practice.

What next?

Whilst, of course, changes may still be made (and there is some tidying up to do) as the Bill proceeds through the parliamentary process, it seems likely that there will not be any major changes.

Although implementation (which will be phased in) is not likely to commence until 2027 - with the Code, new regulations and forms to be drafted in 2026 - there will be lots of work to do preparing for these changes and services should begin their strategic planning now.

We will continue to keep you updated on developments and, as the Bill moves towards implementation, can assist by advising on, drafting and implementing policies and processes that are compliant with legislative change and will withstand regulatory scrutiny. We can also provide training on all aspects of the Mental Health Act and the impact of the proposed changes to ensure that staff understand the scale and implications of what is being proposed.