Nearest relative

Explains what a nearest relative is, including what powers and rights they have and how you can change your nearest relative. Applies to England and Wales.

Terms you need to know

Term Meaning
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
Approved clinician

A mental health professional who has certain responsibilities related to your healthcare. They are approved to do this by the Department of Health (England) or by the Welsh Ministers (Wales).

Approved clinicians may be:

  • doctors
  • psychologists
  • nurses
  • occupational therapists
  • social workers

Some decisions under the Mental Health Act, such as deciding on your medication or giving you permission to leave the ward or hospital, can only be taken by approved clinicians.

Circuit judge

Circuit judges are senior judges in England and Wales who sit in the Crown Court, county courts and certain specialised sub-divisions of the High Court of Justice. Circuit judges sit below High Court judges but above district judges. They will be a barrister or solicitor having been qualified at least 7 years.

Cohabitee

A cohabitee is person who lives with another person as if they are married without having gone through the legal process of marriage.

Community treatment order (CTO)

If you have been sectioned and treated in hospital under certain sections, your responsible clinician can put you on a CTO if an AMHP agrees. 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

  • going somewhere for medical treatment

If you do not follow the conditions and there are concerns about your mental health, you can be returned to hospital.

Detained

A person is detained if they are being kept in hospital under section and are not free to leave.

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 their ability to act. An application is made to the County Court.

Guardianship

This is where someone called a ‘guardian’ is appointed to help you live as independently as possible in the community, instead of being sectioned and kept in hospital.

You would be placed under guardianship if your mental health problem meant that it would be difficult for you to avoid danger or people taking advantage of you. Your guardian has the power to make certain decisions about you and to make conditions that you will be asked to keep to.

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.

Find out more about guardianship in our information on community care and aftercare.

Hospital managers (also known as Mental Health Act managers)

An independent team of people in a hospital who make sure that the requirements of the Mental Health Act are properly applied. They have certain important responsibilities and can make decisions related to your detention – for example, they can hear your application to be discharged from your section and decide whether or not to discharge you. 

Independent mental health advocate (IMHA)

An IMHA is an advocate specially trained to help you find out your rights under the Mental Health Act 1983 and help you while you are detained. They can listen to what you want and speak for you.

You have a right to an IMHA if you are:

• detained in hospital under a section of the Mental Health Act, but not if you are under sections 4, 5, 135 and 136

• under Mental Health Act guardianship, conditional discharge and community treatment orders (CTOs)

• discussing having certain treatments, such as neurosurgery or, if under 18, electroconvulsive therapy (ECT).

In Wales, voluntary patients can also have an IMHA.

Litigation friend

A litigation friend is someone who can take your place in legal proceedings, if you lack capacity to take part yourself. For example, the litigation friend could instruct solicitors on behalf of you, or speak to the judge directly on your behalf.

A litigation friend could be a family member, a friend, or the Official Solicitor.

Mental disorder

When the Mental Health Act talks about someone with mental health problems and whether or not they should be sectioned, it often uses the term “mental disorder”. The Act defines this as “any disorder or disability of mind” (section 1).

Mental disorder can include:

  • any mental health problem normally diagnosed in psychiatry
  • learning disabilities, if the disability makes you act in a way which may seem "abnormally aggressive" or "seriously irresponsible"
Mental 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 illness and need treatment. You can only be kept in hospital if certain conditions are met.

See our information on the Mental Health Act.

Mental Health Act Code of Practice

This tells health professionals how they should follow the Mental Health Act 1983.

It is not law, so it cannot be enforced by going to court, but health professionals should follow it unless there is a good reason not to.

The Code covers some areas not specifically mentioned in the Mental Health Act 1983, such as visiting rights and the use of seclusion.

If a health professional doesn’t follow the Code, you can make a complaint.

There is both an English and Welsh Code of Practice. They are mostly identical, but have certain differences based on the fact that there are some laws which are different in England and Wales.

Mental Health Tribunal

This is a special court that deals with cases relating to the Mental Health Act 1983. The Tribunal decides whether you can be discharged from your section and can decide about suitable aftercare and make recommendations about matters such as hospital leave, transfer to another hospital, guardianship and community treatment orders.

The court is made of a panel, which normally includes:

  • a legally qualified chairperson
  • a ‘lay person’ who has appropriate experience and qualifications in the area of mental health
  • an independent psychiatrist, who will speak to you and examine you before the tribunal hearing in certain circumstances, and when you request to see them

Where you see a reference to the Mental Health Tribunal in this guide, it means:

  • First Tier Tribunal (Mental Health), if you live in England, or
  • Mental Health Review Tribunal for Wales, if you live in Wales
Nearest relative (NR)

This 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 the nearest relative. This can sometimes be changed.

Parental responsibility

This is a legal term which means that a person has rights and responsibilities towards a child.

Patient

This is defined in the Mental Health Act as a person suffering or appearing to be suffering from mental disorder.

Responsible clinician (RC)

This is the mental health professional in charge of your care and treatment while you are sectioned under the Mental Health Act.

Certain decisions, such as applying for someone who is sectioned to go onto a community treatment order (CTO), can only be taken by the responsible clinician.

All responsible clinicians must be approved clinicians. They do not have to be a doctor, but in practice many of them are.

Section

In this guide, 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 information on sectioning.

Voluntary patient (also known as informal patient)

These are people who are staying in a psychiatric hospital but are not detained under the Mental Health Act. As a voluntary patient you should be able to come and go from the hospital within reason and are able to discharge yourself if you decide to go home. See our Voluntary patients resource for further information.

 


This information was published in August 2018. We will revise it in 2020.


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