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Nearest relative
Explains what a nearest relative is, including what powers and rights they have and how you can change your nearest relative.
The UK Government is changing the Mental Health Act.
What is a nearest relative?
Nearest relative is a special term used in the Mental Health Act 1983. It gives one member of your family rights and responsibilities if you are:
- detained in hospital under sections 2, 3, 4 or 37
- under a community treatment order or
- under a guardianship.
Your nearest relative is not the same as your next of kin. The next of kin doesn't have any rights under the Mental Health Act.
Nearest relative is an important safeguard for people who are affected by the Mental Health Act. The nearest relative is another way of making sure that your rights are protected when you are unwell and it is normally someone that you trust.
Who is my nearest relative?
Section 26 of the Mental Health Act 1983 sets out who will be your nearest relative. The list is in strict order and the person who is highest on the list is your nearest relative.
Also, the nearest relative must:
- be over 18 unless they are your mother, father, husband, wife or civil partner
- live in the UK, Channel Islands or the Isle of Man unless you normally live abroad too.
Other situations that affect who your nearest relative might be
- If you are under 18 and subject to a care order, the local authority will be your nearest relative, unless you have a husband, wife or civil partner.
- If you are permanently separated from your partner, they cannot be your nearest relative.
- If there are two people from the same group, the elder person is nearest relative. So for example, if you have two siblings, the elder one would be your nearest relative.
- If you have lived with a relative or are cared for by one of your relatives, they will become your nearest relative. So for example, if your sister is your carer but you also have a father, in this situation your sister would be your nearest relative.
- If you have lived with someone who is not related to you for more than 5 years, they will be added to the bottom of your list of relatives after niece and nephew. So for example, if you have a friend who has lived with you for 7 years they will be added to the list. If you also have a mother and a brother, in this situation your mother would be your nearest relative.
- If you have half blood relatives (like a half brother or sister) then they can be your nearest relative. But a whole blood relationship will take priority over half blood. So for example, if you have a full brother who is 20 years old, and a half-sister who is 32 years old, normally the elder would be the nearest relative. But because it is a half-blood relationship, here your brother would be your nearest relative.
- If you have adoptive relationships (like an adoptive mother or father) then they can be your nearest relative.
- If you have step-relationships (like a step-mother or step-father) then they cannot be your nearest relative.
What happens if I do not have anyone to act as nearest relative?
If you do not have anyone on the list that can act as a nearest relative, you can apply to your local county court to appoint one. This could be a friend or could be an approved mental health professional. The process is the same as displacement.
Approved mental health professional (AMHP)
AMHPs are mental health professionals who have been approved by a local social services authority to carry out duties under the Mental Health Act. They are responsible for coordinating your assessment and admission to hospital if you are sectioned.
They may be:
- social workers
- nurses
- occupational therapists
- psychologists.
Displacement
Displacement is where you change your nearest relative. The process of changing the nearest relative is often known as ‘displacement proceedings’.
Your nearest relative can be displaced if you or the local authority have concerns about the way that they are behaving.
See our pages on the nearest relative for more information.
Visit our full listing of Legal TermsNearest relative
The nearest relative is a family member who has certain responsibilities and powers if you are detained in hospital under the Mental Health Act. These include the right to information and to discharge in some situations.
The law sets out a list to decide who will be your nearest relative. This can sometimes be changed.
See our pages on the nearest relative for more information.
Visit our full listing of Legal TermsParental responsibility
The rights and responsibilities that a parent has for a child. This might include making decisions about their upbringing and where they live. It is possible for people who are not parents of a child to get parental responsibility. For example, a grandparent or family member could be given parental responsibility by the court.
Visit our full listing of Legal TermsCohabitee
A cohabitee is person who lives with another person as if they are married without having gone through the legal process of marriage.
Visit our full listing of Legal TermsMental Health Act 1983 (MHA)
This is a law that applies to England and Wales which allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.
Visit our full listing of Legal TermsGuardianship
This is where someone called a 'guardian' is appointed instead of being sectioned and kept in hospital. Your guardian could be a person or a local authority.
You can only be placed under guardianship if it's necessary for your welfare or to protect other people. Your guardian has the power to make certain decisions about you and to make conditions that you will be asked to keep to, such as where you live.
Guardianship lasts for up to six months and can be renewed: initially for a further six months, and then for a year at a time. You can appeal to the Mental Health Tribunal once in each of these periods.
Visit our full listing of Legal TermsCommunity treatment order (CTO)
If you have been sectioned and treated in hospital under certain sections, your responsible clinician can put you on a CTO. This means that you can be discharged from the section and leave hospital, but you might have to meet certain conditions such as living in a certain place, or going somewhere for medical treatment. Sometimes, if you don't follow the conditions or you become unwell, you can be returned to hospital.
See our pages on CTOs for more information.
Visit our full listing of Legal TermsSection
Being 'sectioned' means that you are kept in hospital under the Mental Health Act. There are different types of sections, each with different rules to keep you in hospital. The length of time that you can be kept in hospital depends on which section you are detained under.
See our pages on sectioning for more information.
Visit our full listing of Legal TermsDetained
A person is detained if they are being kept in hospital under section and are not free to leave.
Visit our full listing of Legal TermsView this legal guide as a PDF (opens new window)
This information was published in November 2020.
This page is currently under review. All content was accurate when published.
References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.
