Nearest relatives under the Mental Health Act

Who is the Nearest relative

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 health problems.

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 this 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.

Identifying the nearest relative

Initially, a person has no choice over who is identified as his or her nearest relative under the rules in the MHA (but see Can a nearest relative be changed?). Those rules are 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.

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, it is necessary to look in the second group. If there is no one in the second, then the third group should be used, and so on.

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.

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.

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.

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.

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.

The County Court also has the power to make an order replacing the Nearest Relative with another person, if the Nearest Relative as defined by section 26 is shown to be an unsuitable person to act as Nearest Relative. The patient now has the right apply for such an order.

Rights and powers of the nearest relative

Rights and powers of the nearest relative

Admission to hospital under the Mental Health Act 1983 (Sectioning)

How are people "sectioned"?

Some people are detained in hospital by the courts after being charged with a crime - see 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 here:

• The Mental Health Act 1983 an outline guide
• Civil admission to hospital

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 mental health professional (AMHP) or the person's nearest relative. However, guidance contained in a Code of Practice to the MHA makes it clear that an AMHP is the preferred applicant and it is actually very rare that a nearest relative makes an application.

Section 2 admissions: the right to be informed

When an AMHP 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 AMHP must take such steps as are 'practicable' to inform the nearest relative where a person is admitted (or is going to be admitted) to hospital under section 2.

Section 3 admissions: the right to be consulted

The MHA states that where admission under section 3 is being considered, the AMHP must consult the nearest relative unless this is not 'reasonably practicable' or would involve unreasonable delay. It also states that if the nearest relative objects to the application being made then the AMHP 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).

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 five 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). The patient himself/herself can apply for displacement of a nearest relative on any of these grounds, including the ground that the nearest relative is not a suitable person to act as such for some other reason not specifically listed in section 29.

When might the nearest relative not be informed or consulted?

It is important to note that the duty on the AMHP 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' and would not involve unreasonable delay. An example of when it might not be practical or reasonably practical is where it is physically impossible for the AMHP 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 AMHP 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 Approved Social Workder (now replaced by AMHP) 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.

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 clinician responsible for the patient's care and treatment (the ‘Responsible Clinician’ or ‘RC’), 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 Tribunal 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 Mental Health Tribunal for discharge in respect of a patient who has been detained by a criminal court under section 37 of the MHA but the right only arises after the first six-month period of detention.

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 Mental Health Tribunal 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.

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.

Supervised Community Treatment (replacing supervised discharge)

On 3 November 2008, supervised discharge (Aftercare Under Supervision, ACUS) was replaced by Supervised Community Treatment (SCT). Since then it has not been possible to make new applications for supervised discharge. Supervised Community Treatment is brought into operation by means of a Community Treatment Order (CTO). Neither an individual for whom an application for supervised community treatment has been or is being made nor his/her nearest relative has any power to object to it or to veto the making of a CTO. For further information on supervised community treatment and CTOs, see Community Care and Aftercare.

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 Responsible Clinician. If they are still unhappy, they can make a formal complaint using the hospital’s complaint procedure. For those complaining in England, if complaining to the hospital fails to produce a satisfactory outome, then it is possible to contact the Care Quality Commission at:

Care Quality Commission National Correspondence, Citygate, Gallowgate, Newcastle upon Tyne NE1 4PA. Tel: 03000 616161. Email: enquiries@cqc.org.uk. Website: www.cqc.org.uk

In Wales, it is possible to complain to:

The Public Services Ombudsman for Wales, 1 Fford yr Hen Gae, Pencoed, CF35 5LJ. Tel: 01656 641 150. Email: ask@ombudsman-wales.org.uk. Website: www.ombudsman-wales.org.uk

Can a nearest relative be changed?

Can a nearest relative be changed?

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 24 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 2008. 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, or has been discharged from hospital under a Community Treatment Order (Supervised Community Treatment), 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. The MHA 2007 has amended section 29 of the MHA 1983 so that patients may apply for the displacement of a nearest relative and has introduced 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 has 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.

Further information

Further Information

This legal briefing provides a general overview of the law in force at the time of writing, including the changes which came 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 on the Legal Unit.

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.

Joanna Sulek
Lawyer
Mind Legal Unit
Granta House
15-19 Broadway
London E15 4BQ

March 2010