A time for change, and a time to choose: the law of unintended consequences.
By Prof. (Dr) Kev Stone* – University of South Wales and Leeds Beckett University, AMHP.
“May your choices reflect your hopes, not your fears.” – Nelson Mandela
The new Mental Health Act 2025 gained royal assent on 18th December 2025, some 7 years after the governments intention to modernise the Mental Health Act was unveiled in the King’s Speech in July 2017. The question I have asked myself is whether this is the new legislation in its entirety that we ultimately needed. Our mental health law has once again progressed through a process of evolution rather than revolution. Nonetheless, we now have the 2025 Act which will amend once again the 1983 Act, and we are awaiting the new accompanying Code of Practice and other secondary legislation. Despite this I will share some of my musings about the anticipated ‘Nominated Person’ role which is to replace the outdated role of the ‘Nearest Relative’ as relevant to civil provisions of the Act.
One key ideological influence supporting the introduction of the Nominated Person, and one a great deal of people have campaigned for is the ability for a patient to choose who they want involved in their care and treatment. The Final report of the Independent Review of the Mental Health Act 1983, entitled ‘Modernising the Mental Health Act: Increasing choice, reducing compulsion’[i] highlighted amongst many important factors that ‘choice and autonomy’ needed to have a much greater focus and be galvanised in our mental health legislation. This is an important step forward. However, if the implementation of the Mental Capacity Act 2005 and the embodiment of its principles is anything to go by it could take some time before any new approach becomes the new normal. It goes without saying but successful implementation relies upon a service being appropriately resourced, including the education and training of all stakeholders.
I mentioned the notion of ‘unintended consequences’ in the title, as any policy change can have just that, unintended outcomes. I don’t know about you, but I don’t always make great choices, or at least choices that everyone will agree with or see as wise. That said I take great comfort in the legal precedent that I can make unwise decisions as long as I have mental capacity, and that presumption isn’t challenged. It will therefore be interesting to see as the new Mental Health Act is operationalised as to how a patient’s choice of Nominated Person is respected, recorded and defended when professional action and inaction is scrutinised. Particularly in the context of confirmed or suspected safeguarding concerns. Watch this space as I suspect there will be new case law to clarify such matters.
Practicalities for Approved Mental Health Professional (AMHP)
The practicalities around identifying the Nearest Relative have been challenging at times for AMHPs[ii]. This is a well-rehearsed issue, ask any AMHP and look at the case law. The challenges of ‘old’, look to being replaced with new challenges based upon the new nomination provisions.
In an ideal world each relevant patient will have a Nominated Person to act in that role, but what if they haven’t. What if they have identified a person who has only been nominated as they will order their discharge from hospital when assessment or treatment is needed. How many times and in what period or circumstances can a relevant patient change their Nominated Person. Can this be asked for by the patient in the middle of the person being interviewed by an AMHP, and the examining doctors. In this sense will ‘practicalities’ become a factor in limiting when a choice can occur. Will we see a new consideration to the term ‘impracticable’ which over time as we know has been stretched to its definitional limit to accommodate the limitations of the Nearest Relative identification process. These are just some of my questions, but you will have others I am sure. The AMHP leads network I am sure are going to have their work cutout considering how we might harmonise this across England and Wales. I am hopeful that the new Code of Practice will assist with these considerations.
We could see the development of a national Nominated Persons database (here’s hoping) held by the Office for the Public Guardian like there is for powers of attorney. This might assist AMHPs identifying who has been nominated, rather than information being held locally. Based upon my own experience as an AMHP I suspect that in half of referrals a Nominated Person will not be identified in advance of the referral being received, if it has, a record of that nomination will be challenging to track down. I don’t mean to be pessimistic at all, in fact my usual Modus operandi is to hope for the best and plan for the worst. However, as an AMHP assessing out of area patients, or new patients to secondary mental health services at least previously I had the relative/family breadcrumb trail to follow as I donned the mantra of Sherlock Holmes in my pursuit to find a nearest relative.
If there is no identified Nominated Person, the AMHP will need to make a determination and decision as to who should be that Nominated Person, if only temporarily. Could this have an impact as to whether a s.2 or s.3 MHA application is made. Is there a risk a Nominated Person may be unwittingly identified who would not ‘object’ to a section 3 MHA application being made. How many people does an AMHP need to approach in deciding who should be the Nominated Person. The new amendments have offered some clarity though:
‘If the relevant patient has a competent donee or deputy who is willing to act as the nominated person, the approved mental health professional must appoint the donee or deputy.’
This appears to me to be a positive move in harmonising our legislation as a suitable person has already been identified who will have the patients best interest in mind. In any other case…
‘… the approved mental health professional must, in deciding who to appoint, take into account the relevant patient’s past and present wishes and feelings so far as reasonably ascertainable.’
As I have said we don’t currently have the benefit of the revised Code of Practice, so we can only speculate at this stage as to whether there will be a guidance framework similar too but not limited to the list for the appointment of a Relevant Persons Representative under the Deprivation of Liberty Safeguards. My sense as choice appears to be the overriding ideology that government policy would not want to tie the AMHPs hands if a suitable person would be available but was outside some defined list, as long as that identification of Nominated Person can be explained and defended.
Where AMHPs are involved in a patient nominating a person, the AMHP will see a similarity with the current nearest relative functions delegation process plus plus. This will be by AMHPs witnessing signatures as a health or care professional if not witnessed by an Independent Mental Health Advocate.
The witness will have an important function to confirm:
[They have] … ‘no reason to think that the patient lacks capacity or competence to terminate the appointment, and [they have] … ‘no reason to think that any fraud or undue pressure has been used to induce the patient to terminate the appointment’.
I can foresee these new Nominated Person processes creating a great deal of extra work for already stretched AMHP teams unless commissioned to advocacy services. Discussions about nominating a Nominated Person may need to feature much earlier on in the secondary mental health services triaging processes (or even in primary care), which may not be currently happening. I am concerned and I know I am not alone in this that AMHP services may struggle with this new demand if it falls to them alone, when we are already experiencing an AMHP workforce shortage. But what I do know, is that as AMHPs we are a resourceful bunch.
I also had a thought, as to whether a relevant patient within an Advance Choice Document could imply who they would want to be their Nominated Person but not yet have formally nominated one through the new agreed process. How much credence should the AMHP give to that indication and how will they know if an Advance Choice Document exists to even look.
Recent parliamentary amendments have also focused on the procedure for nominating a person when a patient is under 16 years of age, and they have settled that it should be a person with parental responsibility or the Local Authority if they hold parental responsibility. This seems a sensible solution, but in the later scenario its hasn’t resolved that the Nearest Relative (soon to be Nominated Person) and the AMHP are both employed by a Local Authority, in most cases the same one.
It has also still not been resolved the issue of a Nominated Person being nominated who is unlikely to use their powers despite agreeing to be nominated and what the AMHP should do in these circumstances where tensions such as this emerge. Therefore, are the safeguards positioned by the Nominated Person role still not a strong enough safeguard as it should be[iii].
We can anticipate the Nominated Person having similar rights and powers to the Nearest Relative with the same intention to uphold a relevant persons Art. 5 ECHR rights and the need to balance these with Art. 8 ECHR. To this end I have been pleased to have been part of research team developing new resources for the current Nearest Relatives to strengthen legal literacy[iv] these will be updated for the new Nominated Person role as it become operational. Please take a look and get in contact with us if you have any feedback Our project team – Resources for Nearest Relatives. What we know is that the legislation doesn’t indicate a mandate that there should be greater support for Nominated Persons which we know is really required, and so the resources are a step in the right direction[v].
My hope is that the Nominated Person role will help to overcome the challenges that have been encountered when determining the Nearest Relative. My hope is that choice and autonomy will be further embedded in mental health service delivery. However, without sensible resourcing of those same services new challenges will manifest themselves which AMHPs will have to develop new skills to overcome, and the doctrine of unintended consequences may come home to roost. There is a lot more I would like to add, but I will leave that for future blogs as we move along the timeline of implementation.
*Kev Stone is a practising AMHP, an Associate Dean at the University of South Wales for Health and Social Care, and a Visiting Professor of Social Work and Mental Health Law at Leeds Beckett University. Co-author of the AMHP Practice Handbook and forthcoming text on Social Work in Mental Health Settings International Perspectives on Practice. Kev delivers CPD education and training to AMHPs https://drkevinstone.com/ He can be contacted at Kev.stone@southwales.ac.uk
[i] Modernising the Mental Health Act: Final Report of the Independent Review of the Mental Health Act 1983
[ii] Jeremy Dixon, Megan Wilkinson-Tough, Kevin Stone, Judy Laing (2019) Treading a tightrope: Professional perspectives on balancing the rights of patient's and relative's under the Mental Health Act in England, Health and Social care in The Community, Treading a tightrope: Professional perspectives on balancing the rights of patient's and relative's under the Mental Health Act in England - Dixon - 2020 - Health & Social Care in the Community - Wiley Online Library
[iii] Judy Laing,Jeremy Dixon,Kevin Stone &Megan Wilkinson-Tough (2018) The nearest relative in the Mental Health Act 2007: still an illusionary and inconsistent safeguard? Journal of Social Welfare and Family Law, https://doi.org/10.1080/09649069.2018.1414366
[iv] Judy Laing, Jeremy Dixon, Kevin Stone 'I was going into it blind': Nearest Relatives, legal literacy, and the Mental Health Act 1983, International Journal of Law and Psychiatry, https://doi.org/10.1016/j.ijlp.2024.101981
[v] Jeremy Dixon , Kevin Stone , Judy Laing (2022) Beyond the call of duty: A Qualitative study into the experiences of family members acting as a Nearest Relative in Mental Health Act assessments, The British Journal of Social Work, https://doi.org/10.1093/bjsw/bcab258
The Blog unique picture was generated by AI requesting a diverse group of making a choice.