|Mental health – human rights – nearest relative – incompatibility – private life
M was a detainee under the Mental Health Act 1983. Under s26 MHA 1983 M’s adoptive father, P, was designated as her ‘nearest relative’. Prior to being detained, M had made allegations that she had been sexually abused by P, and she duly objected to P’s automatic appointment as her nearest relative. She was distressed that someone she did not trust had access to personal information about her because of his status as her nearest relative.
Section 29 of the 1983 Act which provides for certain persons to be appointed as nearest relative, on application to the county court, did not entitle M, either personally or indirectly, to challenge P’s status as her ‘nearest relative’. The incompatibility of both sections was admitted by the Secretary of State for Health. However, the secretary of state opposed the making of a declaration of incompatibility on the basis of the government’s admission of incompatibility in this case; the similar admission of incompatibility made in the friendly settlement in JT v United Kingdom; and the government’s intention to enact amending mental health legislation as evidenced by the introduction of a draft mental health bill.
The judge was unimpressed with the government’s arguments and held that the automatic appointment of P as M’s nearest relative interfered with M’s private life. That interference was clearly disproportionate, ongoing and unjustified. The inability of detainees under the Mental Health Act 1983 to apply to a court to have their ‘nearest relative’ replaced where they had reasonable objections to their suitability was incompatible with art 8 of the Convention, as agreed in JT V UK and it was not possible to interpret s26 and s29 MHA 1983 so as to be compatible with art 8.
In all the circumstances, the judicial discretion to make a declaration of incompatibility under s4 Human Rights Act 1998 ought to be exercised. The incompatibility had been identified a considerable time ago and its removal, as anticipated in the JT v UK settlement, had not taken place. The issue was one of significance not only for M, but for other detainees under the MHA 1983.