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Legal briefing: Nearest relatives under the Mental Health Act 1983
The purpose of this legal briefing is to explain the term "nearest relative", show how a person’s nearest relative is identified and outline the rights and powers that a nearest relative has. The briefing uses the term ‘patient’ when referring to the person using mental health services. This is the term used in the Mental Health Act 1983 (MHA), the legislation which covers the formal detention and care of people experiencing mental distress. The briefing covers the following:
1. Nearest relative and ‘next of kin’
2. Identifying the nearest relative
3. Rights and powers of the nearest relative
3.1 Admission to hospital under the Mental Health Act 1983 ("sectioning")
3.2 Powers concerning discharge of the patient
3.3 Right to information on admission and discharge
3.4 Planning for aftercare
3.5 Supervised discharge
3.6 Treatment
4. Can a nearest relative be changed?
5. Further Information
1. Nearest relative and 'next of kin'
Many people confuse the term nearest relative with ‘next of kin’. A person’s next of kin is their closest relative and is relevant when, for example, a person has died. Nearest relative is a specific legal term defined in section 26 of the MHA. The MHA gives a patient’s nearest relative some rights and powers in relation to detention, discharge and being informed or consulted when certain actions have been taken under the MHA or when these are being proposed. The role of a nearest relative is limited to these rights and powers under the Act.
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2. Identifying the nearest relative
2.1 A person has no choice over who is his or her nearest relative (see 4. Can a nearest relative be changed? below). Instead, the nearest relative is identified using rules set out in section 26 of the MHA. It is only certain relations who are treated as relatives under the MHA and section 26 lists these in groups or pairs, as follows:
- husband, wife or civil partner (including a person with whom the patient has been living as for not less than six months);
- son or daughter;
- father or mother;
- brother or sister;
- grandparent;
- grandchild;
- uncle or aunt;
- nephew or niece.
2.2 Where a patient is living with, or being cared for by, any person on the list, or has relatives on the list who live outside of the United Kingdom, this can effect who the nearest relative is – see 2.4, 2.5 and 2.6 below. Otherwise, the nearest relative is identified by starting at the top of the list and working down. If there is a husband, wife or civil partner, that person will be the nearest relative. If there is no one in this first group, you go to the second, if there is no one on the second you go to the third, and so on.
2.3 If there is more than one person in each group or pair who could be the patient’s nearest relative, the eldest takes priority as nearest relative. For example, if the rules in section 26 indicate that a parent is the patient’s nearest relative and both parents are still alive, then it is the elder of the two who is the nearest relative. If section 26 indicates that the nearest relative should be a brother or sister, it is the oldest brother or sister who is the nearest relative.
2.4 If the patient is living with or being cared for by any person on the list, this person is the nearest relative. For example, if the patient lives with an uncle or aunt, that person will be the nearest relative even if the patient has a mother or father. Similarly, if the patient lives with a younger brother or sister, that person will be the nearest relative even if the patient has an older brother or sister, or a parent.
2.5 If the patient has lived with any person not on the list (maybe a friend or a more distant relation, such as a cousin) for five years or more, then that person is the nearest relative.
2.6 To qualify as a nearest relative, the person must be living in the United Kingdom. For example, if the rules in section 26 indicate that the eldest brother should be nearest relative but that brother lives abroad, the eldest brother or sister still living in the United Kingdom will be the nearest relative.
2.7 If no one qualifies as a nearest relative under the rules in section 26, the County Court can appoint someone to act as nearest relative.
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3. Rights and powers of the nearest relative
3.1 Admission to hospital under the Mental Health Act 1983 ("sectioning")
3.1.1 How are people "sectioned"?
Some people are detained in hospital by the courts after being charged with a crime - see Mind rights guide 5: mental health and the courts. However, most people are detained under 'civil’ sections of the MHA, which do not involve the courts. The main sections of the MHA that people usually mean when they talk of someone "being sectioned" are sections 2 and 3. Certain grounds have to be met in order for a person to be detained under these sections and you can read about these grounds in the following documents produced by Mind:
Admissions under sections 2 and 3 must involve two doctors. Both doctors must recommend admission to hospital under section 2 or under section 3 and, if these ‘medical recommendations’ have been made, an application for the person's admission to hospital may be made. That application can be made either by an approved social worker (ASW) or the person's nearest relative. However, guidance contained in a Code of Practice to the MHA makes it clear that an ASW is the preferred applicant and it is actually very rare that a nearest relative makes an application.
3.1.2 Section 2 admissions: the right to be informed
When an ASW makes an application to detain a person under section 2 of the MHA, the nearest relative cannot prevent the application being made. However, the MHA states that an ASW must, if 'practicable', inform the nearest relative where a person is admitted (or is going to be admitted) to hospital under section 2.
3.1.3 Section 3 admissions: the right to be consulted
The MHA states that where admission under section 3 is being considered, the ASW must consult the nearest relative if this is 'reasonably practicable'. It also states that if the nearest relative objects to the application being made then the ASW cannot make the application. The admission under section 3 cannot then go ahead unless the nearest relative is displaced. (The nearest relative can also prevent an application under section 7 MHA for guardianship).
3.1.4 Displacement of nearest relative
If the nearest relative objects to an application for admission under section 3 MHA, it is only possible for the patient to be detained under section 3 if the County Court makes an order for the nearest relative to be removed (‘displaced’). The Court can make an order for displacement on four grounds contained in section 29 of the MHA and one of these allows for displacement if the nearest relative unreasonably objects to the making of the application for admission under section 3. (A nearest relative objecting to a guardianship application under section 7 can also be displaced on the ground that the objection is unreasonable).
3.1.5 When might the nearest relative not be informed or consulted?
It is important to note that the duty on the ASW is to inform the nearest relative of admission under section 2 if this is 'practicable' and to consult before an admission under section 3 if this is 'reasonably practicable'. An example of when it might not be practical or reasonably practical is where it is physically impossible for the ASW to contact the nearest relative. However, ‘practicable’ does not mean the same as ‘possible’ and there may be times when it is possible to contact the nearest relative but the ASW decides that it is not practicable. The courts confirmed this in a case at the beginning of 2005, in which a woman (‘E’) did not want Bristol Social Services to consult her sister about her mental health. Doctors confirmed that it would cause the woman great distress if the sister was consulted and the court ruled that an ASW does not always have to consult just because it is physically possible to do so. It might be possible to contact the nearest relative but still not be reasonably practicable for some other reason such as the distress that would result to the service user.
3.2 Powers concerning discharge of the patient
A nearest relative has the power to discharge her or his relative from detention under section 2 or section 3. The nearest relative must give the hospital managers 72 hours notice and the notice of discharge has to be served in writing on an ‘authorised person’ at the hospital. Within this period, the doctor treating the patient (the ‘Responsible Medical Officer’ or ‘RMO’), may issue what is called a ‘barring certificate’, preventing the nearest relative from discharging the patient for the next six months. If a barring certificate is issued, the nearest relative has 28 days to make an application to the Mental Health Review Tribunal (MHRT) for discharge.
It is important that the notice of discharge is served on the person authorised by the hospital managers to receive such notice. In a case where a notice was handed to a receptionist, the courts ruled that the 72-hour period did not start until the notice was received by the authorised person. If a nearest relative is unsure who is the authorised person, it is best to contact the Mental Health Act Administrator at the hospital.
The nearest relative also has the power to apply to the MHRT for discharge in respect of a patient who has been detained by a criminal court under section 37 of the MHA.
3.3 Right to information on admission and discharge
The hospital managers are under a duty to give particular information to a patient who has been detained under the MHA such as details of the provisions under which the patient is detained and rights of applying to an MHRT for discharge. This information should also be given to the nearest relative unless the patient objects. This requirement is set out in section 132 of the MHA.
Unless the patient objects, the hospital managers also have a duty to inform the nearest relative when a patient who is detained under the MHA is being discharged.
3.4 Planning for aftercare
Unless the patient objects, the nearest relative must be given the opportunity to become involved in any planning of the patient’s care and services for after she or he leaves hospital. A patient detained under section 3 (or by the courts under section 37) has a right to receive free aftercare services from the local authority under section 117 of the MHA.
3.5 Supervised discharge
Some patients may become subject to supervised discharge (properly called "Aftercare Under Supervision") when they leave hospital. The idea of this is to ensure that a person receives the section 117 services to which she or he is entitled while in the community. Such patients remain under the supervision of a community psychiatrist.
When an application for supervised discharge is made by the RMO, the MHA says that the nearest relative must be consulted unless the patient objects. However, the patient’s objection can be overridden if she or he is considered violent or a danger to others, or if the RMO considers it is appropriate to consult with the nearest relative. The nearest relative has the right to appeal to the MHRT if the application for supervised discharge is accepted.
The supervised discharge powers, contained in section 25A -J of the MHA, will be replaced by ‘supervised community treatment’ when the Mental Health Act 2007 (MHA 2007) is brought fully in to force – see Mind’s series of Legal briefings on the Mental Health Act 2007.
3.6 Treatment
A patient who is detained under the MHA can be treated without consent. There is no power under the MHA for the nearest relative to intervene in a patient’s treatment whilst admitted under section. If the nearest relative is unhappy about the treatment being given to their relative, they should initially discuss this with the RMO. If they are still unhappy, they can make a formal complaint using the hospital’s complaint procedure or even contact the Mental Health Act Commission.
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4. Can a nearest relative be changed?
4.1 Delegation of role by nearest relative
The nearest relative may authorise someone else to act in her or his place. This is allowed by regulation 14 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983. This lays down certain requirements to be met for the authorisation to take effect. To meet the requirements, it is best if the nearest relative writes a letter to the person she or he wishes to nominate. If the patient is already detained in hospital, the nearest relative should also write to the hospital managers giving them notice of the authorisation. If the patient is subject to guardianship, the nearest relative should notify the director of the local social services department of the authorisation, again in writing. The authorisation letter should make clear that the nearest relative is delegating their functions with immediate effect and give the patient’s name and address, as well as those of the nearest relative and the person to whom the role is being delegated. The person authorised by the nearest relative need not be a relative of the patient. The authority takes effect as soon as the person authorised receives it. The authority can be revoked by the nearest relative at any time.
As was explained earlier, the nearest relative is identified using rules set out in section 26 of the MHA and a person has no choice over who is his or her nearest relative. In 2000, the European Court of Human Rights held that this amounts to a breach of a person’s right to respect for private and family life under Article 8 of the European Convention on Human Rights. The UK Government agreed to amend the legislation in line with this ruling but waited until the MHA 2007 to change the rules. When it is brought fully into force, the MHA 2007 will amend section 29 of the MHA 1983 so that patients may apply for the displacement of a nearest relative and will introduce a new ground for displacement – that the nearest relative is "not a suitable person to act as such". This may enable some patients to ‘choose’ their nearest relative but only by using the county court system. The patient will have to apply to the county court on the grounds that the person who the mental health agencies would otherwise consider to be the nearest relative under section 26 is "not a suitable person". In the application, the patient can nominate another nearest relative and that person can then be made the acting nearest relative unless the court finds the person to be unsuitable or, of course, it decides not to displace the current nearest relative.
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5. Further Information
This legal briefing provides a general overview of changes, some of which are in force and some of which are expected to come into force in October 2008. It relates only to the law of England and Wales. It is a brief outline of the law and is not a substitute for detailed advice.
For further information about the work of Mind's legal unit, please refer to our information page, Introduction to the Legal Unit. This is also available in hard copy (telephone 020 8519 2122).
For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (telephone 0870 606 2555) or from Community Legal Advice (telephone 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.
Keith Dawson
Lawyer
Mind Legal Unit
Granta House
15-19 Broadway
London E15 4BQ
February 2008
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