Nearest Relative

If you are detained under one of the following Sections, you should have a Nearest Relative:

• Section 2 – Detention for assessment and treatment
• Section 3 – Detention for treatment
• Section 7 – Guardianship
• Section 17A – Community Treatment Order
• Section 37 – Hospital Order without restriction

Who is your Nearest Relative?

A Nearest Relative’s identity is determined by rules in MHA 1983 and is not determined by reference to a patient’s next of kin.

Section 26 MHA 1983 sets out a list of people who are considered to be relatives for the purposes of identifying a Nearest Relative. The Nearest Relative will be the first living person mentioned in the following list:

• Husband/wife/civil partner
• Son or daughter
• Father or mother
• Brother or sister
• Grandparent
• Grandchild
• Uncle or aunt
• Nephew or niece

For the purpose of identifying a Nearest Relative, any relationship of the half blood is treated as a relationship of the whole blood and an “illegitimate person” is treated as if he/she were the legitimate child of his/her mother and his/her father if he has parental responsibility under the Children Act 1989.

A cohabitee who lives with the patient as husband/wife/civil partner, and has done for 6 months or more, is treated as being the husband/wife/civil partner of the patient. A person who is not a relative at all can become a relative if the patient ordinarily resides with him/her and has done so for 5 years or more but the person is added to the bottom of the hierarchy list. Step-children or step-parents and cousins are not on list of relatives but could become relatives via the 5 year rule. An adopted child is treated as the child of an adoptive parent and not of a natural parent.

Where the patient ordinarily resides with, or is cared for, by one or more of his relatives (or this was the case before admission) those relatives are preferred over others and this applies even for “5 year rule” relatives.

Examples:

• If you are detained under Section 3 MHA 1983 and you are not married and have no children but you have a mother (63 years old) and a father (65 years old) your father will be your Nearest Relative under MHA 1983 as he is the eldest
• If you are detained under Section 3 MHA 1983 and you have a son and daughter but you were living with your sister before the admission and you were cared for by your sister, your sister will be your Nearest Relative under MHA 1983 even though she is further down the list under Section 26 

Rights of a Nearest Relative

1. Right to request discharge of a patient detained under Section 2, 3 or 17A MHA 1983

If you are detained under Section 2, Section 3 or Section 17A (Community Treatment Order) MHA 1983 your Nearest Relative can order your discharge from Section by giving the hospital managers 72 hours’ notice in writing of their intention to discharge you. The letter must contain the date and time and should be sent to the Mental Health Act Administrator at the hospital. In Section 17A cases the letter should be sent to the Mental Health Act Administrator at the hospital responsible for you.

Before the 72 hour period expires, your Responsible Clinician (doctor) can disagree with your Nearest Relative and bar the discharge with a barring order certifying that if you were discharged you would be likely to act in a manner dangerous to others or to yourself. Dangerousness is the only basis for your Responsible Clinician to prevent discharge. If a barring certificate is not issued, you will be discharged from Section at the end of the 72 hour period.

If the Responsible Clinician does bar the discharge, the hospital managers must consider holding a review which would usually be an oral hearing. If the discharge is barred, your Nearest Relative cannot order discharge again for 6 months from the date of the barring order.

If it is perceived that the Nearest Relative has exercised their right to request discharge without due regard to your welfare or the interests of the public, this may lead to an application being made to the County Court for displacement of your Nearest Relative and the appointment of a different one.

2. Right to discharge from Section 7 MHA 1983 Guardianship order   

If you are under a Section 7 Guardianship order, your Nearest Relative can discharge you from the order and your Responsible Clinician has no power to issue a barring certificate.

3. Right to be consulted and object to admission under Section 3 MHA 1983

The Approved Mental Health Professional (AMHP) submitting an application to hospital for you to be admitted under Section 3 MHA 1983 must consult the person (if any) appearing to be Nearest Relative before making an application for admission under Section 3 unless such consultation is not reasonably practicable or would involve unreasonable delay. The Section 3 admission application cannot go ahead if your Nearest Relative objects, however, if the objection is considered unreasonable this may result in the AMHP making an application to the County Court for displacement of your Nearest Relative and the appointment of a different one.

4. Right to receive information

Under Section 132 MHA 1983 the hospital in which you are detained must ensure that you understand your detention and Tribunal rights and the hospital must also give a copy of any written information to your Nearest Relative if you consent for them to do so. Your Nearest Relative must also be informed if you are discharged, if you provide consent for the information to be provided.

Nearest Relative Right to apply to the Tribunal

Your Nearest Relative can apply to the Mental Health Tribunal in the following instances:-

1. As a consequence of a barring order in Section 3 case

If your Nearest Relative has ordered your discharge from Section 3 MHA 1983 but has had their order barred by your Responsible Clinician, they have the right to apply to the Tribunal for your discharge within 28 days of being informed of the barring certificate. The Tribunal must discharge you from Section if they do not consider that you would be likely to act in a manner dangerous to others or to yourself.

2. Unrestricted Section 37 hospital order cases

If you are detained under Section 37 MHA 1983 without any restriction order, your Nearest Relative can apply to the tribunal periodically within the same eligibility periods as you i.e. not within the first 6 months of detention, once within the second 6 months of detention and then on an annual basis.

3. Section 37 Guardianship cases

If you are detained under a Section 37 Guardianship order, your Nearest Relative can apply to the Tribunal within the period of 12 months beginning with date of your Guardianship order and in any subsequent period of 12 months.

4. Displaced Nearest Relatives

If your Nearest Relative has been displaced by the County Court following their objection to your admission under Section 3 or following an attempt to exercise their discharge power, they can apply to the Tribunal during each 12 month period after the displacement.

Delegation of Nearest Relative rights to another individual

Your Nearest Relative can delegate the exercise of his/her functions to another person providing they abide by the disqualification rules and notification conditions.

You, as patient, are disqualified from having the functions delegated to you as well as individuals who are disqualified from being your Nearest Relative under Section 26 MHA 1983. Your Nearest Relative must notify you, the managers of the hospital you are detained in/liable to be detained in or, if you are subject to guardianship, the responsible Local Social Services Authority and Guardian, immediately of their delegation. The notifications must be made in writing.

If your Nearest Relative has delegated the exercise of their functions to another person, they can revoke the delegation subject to the same notification conditions.

Displacement of a Nearest Relative

The County Court has a power under Section 29 MHA 1983 to appoint a Nearest Relative for a patient. Where there is an existing Nearest Relative then this process is called displacement. There are certain grounds upon which the application for displacement must be based, but the main ones are if the Nearest Relative is deemed unsuitable and are not using their powers in the best interests of the patient.

India Jefferson-Grant is the Mental Health Law specialist in our Mental Health and Capacity Department and is a member of the Law Society’s Mental Health Accreditation Scheme having been independently assessed as an expert in Mental Health Law. If you are a patient detained under the Mental Health Act 1983 or a Nearest Relative needing legal advice and assistance, you can contact India on 02392 660 261 or IJefferson-Grant@biscoes-law.co.uk.