The Importance of the Nearest Relative in Mental Health Law

by TheEditor

Categories: Law, Mental Health

In mental health care (in England & Wales), the concept of the ‘nearest relative‘ (NR) holds significant weight. This pivotal role, enshrined in the Mental Health Act 1983, serves as a vital safeguard for patients who find themselves navigating the complexities of mental health treatment. The term should not simply be equated with ‘next of kin’.The nearest relative is more than just a familial connection; they are designated advocates, an overseer, and, in many ways, a protector of the patient’s rights and welfare.

Imagine being in a vulnerable state, grappling with mental health challenges, and needing someone to stand by your side, ensuring your voice is heard and your rights are respected. This is where the nearest relative steps in. They are vested with a range of powers, responsibilities and rights designed to support and represent the patient, particularly when the patient may not be fully capable of making decisions independently.

The importance of nearest relatives extends beyond mere procedural formality. They are instrumental in various critical decisions, such as consenting to treatment, objecting to compulsory admission to hospital, and even applying for the discharge of the patient. This role not only provides a layer of oversight and protection but also integrates a personal touch into the legal and medical processes, ensuring that decisions are made with the patient’s best interests at heart.

Involvement of the NR helps to balance the scales; providing a necessary counterweight to the clinical and legal mechanisms at play.The the headings that follow, will unpack the process of determining the nearest relative and explore their vital role in safeguarding the rights and well-being of those undergoing mental health treatment.

Mental health law for England & Wales is particularly complex and convoluted. Various Acts of Parliament have inserted clauses into the MHA 1983 (as amended 2007). In addition, laws that some may not be familiar with insert and overarch how various parts of the core MHA 1983 operate e.g. hardly known by many is Part 3 of The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 for the purposes of this article. In addition the Reference Guide to the Mental Health Act and the MHA Code of Practice add certain important considerations.

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Definitions, responsibilities and powers of the nearest relative

Relative’ is defined for the purposes of part 2 the Act as anyone who is a patient’s:

2.6 ‘Relative’ is defined for the purposes of part 2 the Act as anyone who is a patient’s:

  • husband, wife or civil partner
  • son or daughter
  • father or mother
  • brother or sister
  • grandparent
  • grandchild
  • uncle or aunt, or
  • nephew or niece.

2.7 This includes relationships both of the ‘whole blood’ and the ‘half-blood’, ie with, or through, half-siblings.

2.8 It also includes relationships established through adoption, eg adoptive parent and child, adoptive aunt and nephew, but not step-relationship.

2.9 It includes the relationship of a father and a patient under 18 who is not born to parents who are married or in a civil partnership (and any relationship established through such a relationship, eg between uncle and niece) only if the father has obtained ‘parental responsibility’ for the child within the meaning of section 3 of the Children Act 1989.

2.10 ‘Husband’, ‘wife’ and ‘civil partner’ include people living with a patient as if they were husband, wife or civil partners, provided they have done so for at
least six months (or, when the patient is currently a hospital in-patient, they had lived together for at least six months before the patient’s admission to hospital).

2.11 ‘Relative’ also includes people who are not (in the usual sense) relatives but who are living (‘ordinarily residing’) with a patient and have done so for at least five years (or, when the patient is currently a hospital in-patient, had lived with the patient for at least five years before the patient’s admission to hospital).

The section 26(2) requirement of parental responsibility only applies to patients under 18 who are not born to parents who are married or in a civil partnership.

The following is quoted from the Guide to the Mental Health Act 1983.

Determining the nearest relative (NR) under the Mental Health Act 1983 can be quite complex due to several factors:

  • Hierarchical List of Relatives: The law specifies a strict hierarchy of relatives to determine the NR, which can be complicated in large families. Additionally, when there are multiple relatives at the same level, such as several children, the eldest takes precedence. This requires knowing the ages of all relevant relatives.
  • Residency Requirements: The NR must be ordinarily resident in the UK, the Channel Islands, or the Isle of Man. Figuring out residency status can be tricky, particularly for families with members living abroad or with unclear residency situations.
  • Exclusions and Disqualifications: Certain relatives are automatically excluded from being the NR, such as those permanently separated from the patient or those who have deserted the patient. Proving these conditions can be challenging. Additionally, relatives with conflicts of interest or those deemed unsuitable, perhaps due to mental incapacity or inappropriate behaviour, can be disqualified, which involves legal assessments.
  • Patient Preferences: Patients can object to a specific person being their NR, and if they have a legitimate reason, this might lead to legal proceedings to appoint an alternative NR. Furthermore, a court can displace an NR if necessary, adding a legal layer to the determination process.
  • Special Circumstances: For minors, the NR might be a guardian, someone with a residence order, or the local authority in certain cases, rather than a traditional relative. This adds complexity when identifying the appropriate NR for young patients. Additionally, blended families, adoption, and other non-traditional family structures can complicate the identification process, as legal recognition of these relationships may vary.
  • Legal and Procedural Nuances: The legal definitions and interpretations of who qualifies as an NR can be nuanced, requiring thorough legal understanding. Family disputes about who should be the NR can also arise, necessitating legal intervention to resolve.

These factors collectively make the process of determining the nearest relative intricate, often requiring careful consideration of legal, familial, and procedural elements.

2.12  The general rule is that the nearest relative is the person who comes first in the list of relatives described above (with people who are only relatives because they have lived with the patient for at least 5 years coming at the bottom of that list).

2.13 Men and women take equal priority – so sons and daughters come in the same place in the list. So do husbands, wives, civil partners and people who are treated as if they were husbands, wives and civil partners under the Act (see paragraph 2.10).

2.14 Where two or more people come in the same place in the list, the elder or eldest takes precedence (eg the elder parent, or eldest sibling).

2.15 There are several exceptions to the general rule, as follows:

  • a relative who ordinarily lives with or cares for the patient takes precedence over other relatives
  • a relative of the full-blood (eg a full brother or sister) takes precedence over one of the half-blood (eg a half-brother or half-sister) within any category of relatives, regardless of age
  • a husband, wife or civil partner, or someone treated as such under the Act, who is permanently separated from the patient, whether by agreement or a court order, is not eligible to be the nearest relative
  • a husband, wife or civil partner, or someone treated as such under the Act, who has deserted, or been deserted by, the patient is also not eligible to be the nearest relative. Desertion means that one party has left the marriage or partnership without the other’s agreement, and
  • otherwise, a legal husband, wife or civil partner takes precedence over anyone who is treated as such because they lived with the patient as if they were married or civil partners, and over anyone who is only treated as a relative because they have lived with the patient for at least 5 years.

 2.16  In addition:

  • no-one under 18 can be the nearest relative, unless they are the patient’s mother, father, husband, wife or civil partner, or treated as such, and
  • only patients who are not themselves ordinarily resident in the UK, the Channel Islands or the Isle of Man can have a nearest relative who also does not live in any of those places.

Seven steps to identify the nearest relative

Determine whether there is a nearest relative

Step 1: Determine whether the patient has anyone who falls into one of the categories of the hierarchical list below. If there is no-one, the patient has no nearest relative.

Determine who the likely nearest relative is

Step 2: Identify whether there is anyone who falls into one of the categories in the hierarchical list with whom the patient ordinarily resides or by whom the patient is cared for (or, if the patient is currently a hospital in-patient, with whom the patient last ordinarily resided or by whom the patient was cared for before being admitted). If there is someone, skip to step 4.

Step 3: Identify all the people who meet the criterion in step 1 and then identify the one who comes highest in the hierarchical list as the likely nearest relative. If two or more people come equal first, identify the eldest as the likely nearest relative. Then skip to step 5.

Step 4: Identify all the people who meet the criterion in step 2 and then determine which one comes highest in the hierarchical list as the likely nearest relative. If two or more people come equal first, identify the eldest as the likely nearest relative.

Determine whether the likely nearest relative is actually the nearest relative

Step 5: Determine whether the patient is ordinarily resident in the UK, the Channel Islands or the Isle of Man. If not, skip to step 7.

Step 6: Is the likely nearest relative ordinarily resident in the UK, the Channel Islands or the Isle of Man? If not, return to step 2, but ignore the person who was previously the likely nearest relative. Repeat as necessary.

Determine the nearest relative.

Step 7: The likely nearest relative is indeed the nearest relative.

Note: Remember that there are special rules for certain children and young people. It is also good practice to involve carers, especially if the patient expresses a preference for their involvement, and they are different to the nearest relative as defined by section 26, see chapter 5 in the Code of Practice for further guidance.

Hierarchical list of potential nearest relatives

1st Husband or wife or civil partner (except one permanently separated from the patient by agreement or a court order, or who has deserted or been deserted by the patient)

2nd Person who qualifies as a relative by living with the patient as husband or wife or as if they were civil partners for at least six months (ie person treated as a husband, wife or civil partner under the Act)

3rd Son or daughter aged 18+

4th Father or mother

5th Brother or sister aged 18+

6th Half-brother or half-sister aged 18+

7th Grandparent

8th Grandchild aged 18+

9th Uncle or aunt aged 18+ of the whole blood

10th Uncle or aunt aged 18+ of the half-blood (eg half-sister of patient’s mother)

11th Nephew or niece aged 18+ of the whole blood

12th Nephew or niece aged 18+ of the half-blood (ie child of a half-brother of the parent of the patient)

13th Other person aged 18+ who qualifies as a relative by having lived with the patient for at least five years

Note: Includes relationships made through adoption. Excludes step relationships.

Also excludes the relationship of a father and a child under 18 who is not born to parents who are married or in a civil partnership and any relationship established through such a relationship, eg between aunt and nephew, unless the father has parental responsibility for the child.

Much of this table is constructed from the Guide to the Mental Health Act. Unless otherwise stated Sections refer to MHA 1983 (as amended 2007).

Table 1 – Summary of powers, roles and responsibilities of NR
HeadingDescriptionReferences
1 Safeguarding the patient’s interestsOverall, the NR acts as a safeguard for the patient’s interests, ensuring that their rights are respected and that their treatment is conducted in a manner that prioritises their well-being. This includes monitoring the care provided and intervening if there are concerns about the patient’s treatment or conditions.
Various parts of Mental Health Act 1983
2Rights to information and to be consultedThe NR has the right to be informed about the patient’s detention, treatment, and any changes to their status. This includes receiving copies of various notices, such as those related to the patient’s admission or renewal of detention.

The nearest relative can be consulted, (section 11(4)(b)), whenever practicable, by an AMHP before a decision is made about a patient’s possible compulsory admission to hospital for assessment (section 2) or for treatment (section 3).

While there is no requirement for the nearest relative to be informed and consulted when a CTO is being considered, the Code 29.10 notes that
‘consultation at an early stage with the patient and those involved in the patient’s care will be important, including family and carers’.
Section 11(3), 11(4)b
3Right to objectThe nearest relative can formally object ((section 11(4), Code 14.65) to the making of an application by an AMHP for admission for treatment (section 3) or guardianship (section 7). If the nearest relative took this step, compulsory admission to hospital or reception into guardianship could not proceed at that time. The mental health professionals would in turn give urgent consideration to seeking the ‘displacement’ of the nearest relative in an application to the County Court (section 29(3)(c)).Section 11(4), 29(3)c

COP 14.65
4Application for admissionThe NR can require the local authority (verbally or in writing), in which the ‘patient’ is living, to arrange for an approved mental health professional (AMHP) to ‘consider the patient’s case’ including whether there is a need for compulsory admission to hospital. The local authority must inform the nearest relative in writing, of the reasons if no application for admission is made.

The NR can make an application (section 11(1)), provided there are valid medical recommendation(s), for the person’s compulsory admission to hospital either for assessment (section 2 – form A1) or for treatment (section 3 – form A5) or in an emergency (section 4 – form A9). The nearest relative, if the applicant, must have seen the ‘patient’ within 14 days (24 hours if section 4) before making an application (section 11(5)). The Code of Practice (paragraph 14.30) notes that AMHPs are ‘usually a more appropriate applicant’. 

In guardianship, the nearest relative may make an application (section 11(1)), provided there are two valid medical recommendations, for the person to be received into guardianship (section 7). The nearest relative would complete form G1.

‘If the nearest relative is the applicant, any AMHP, and other professionals involved in the assessment of the patient, should give advice and assistance. They should not assist in a patient’s detention unless they believe it is justified and lawful’ (Code 17.11). If the nearest relative does make the application, eg where the AMHP disagrees with need or urgency for compulsory admission and the person is detained in hospital under section 2 or section 3, the hospital managers must request the relevant local authority to provide them with a social circumstances report (section 14).
Sections 4(2), 7, 11(1), 13(4), 14,

Code 14.30, 14.36 and 14.102), 17.11
5Discharge of the patientThe nearest relative can order a patient’s discharge (section 23)
– from detention (section 2 or section 3) o       
– or from a community treatment order (CTO) (section 17A) but only where the CTO followed detention under section 3. This would also discharge the suspended section 3 underpinning the CTO. 
 
The nearest relative must give 72 hours notice in writing to the hospital.[1] An illustrative standard letter for this purpose is given in the Code of Practice, paragraph 32.25. The nearest relative’s order may be barred if within the 72 hours, the patient’s responsible clinician provides a written report (M2) that they consider that the patient, if so discharged, ‘would be likely to act in a manner dangerous to other persons or to himself’ (section 25; regulation 25(1) (a) and (b), Mental Health Regulations 2008, and Code 32.20 – 32.25). The barring report prevents the nearest relative from ordering discharge at any time in the six months following the date of the report (section 25(1)(b), section 25(1A)). If the patient were detained under section 2 the nearest relative cannot take the matter further. If the patient is detained under section 3 or on a CTO following section 3, then the nearest relative may, within 28 days of the barring report being issued, apply to the Mental Health Tribunal for the patient’s discharge instead (section 66(1)(g), section 66(2)(d)). For the situation when the matter is considered by the hospital managers panel, see Code 38.20.
[1] K (by his litigation friend, L) v Hospital Managers of the Kingswood Centre, Court of Appeal.

The nearest relative should be given 7 days notice, if practicable, by the hospital before a patient is discharged from detention under sections 2 or 3 or from a CTO (section 133). This duty does not apply if the patient or the nearest relative has requested that this information should not be given.

The patient or the nearest relative can apply to the Mental Health Tribunal for the patient’s discharge when the patient is subject to an unrestricted hospital order (section 37) in the period between 6 and 12 months after the making of the hospital order and in any subsequent period of one year.

The nearest relative can order a patient’s discharge (section 23) from guardianship (section 7). There is no power for the responsible clinician to bar discharge.
The nearest relative can, in addition to the patient’s own right, apply to the Mental Health Tribunal for discharge when the patient is subject to a guardianship order within the first 12 months of the order and in any subsequent 12 month period (section 69(1)(b)(ii)).
Section 23(2), 25. S133(1).

COP 32.25, 32.20 – 32.25; 38.20
6To call for an examination of the patient28.123 of the Reference guide: Any doctor or approved clinician may be authorised by a nearest relative to visit and examine a patient in order to advise on the use of the nearest relative’s power of discharge. These authorised doctors and approved clinicians may visit and examine the patient in private at any time, and (if applicable) require any records relating to the patient’s detention or treatment in any hospital, or relating to after-care services provided for the patient under section 117, to be produced for their inspection. A person who refuses, without reasonable cause, to let an authorised doctor or approved clinician see a patient in private, or inspect any relevant records would be guilty of the offence of obstruction under section 129 (see chapter 33).S24 and Guide to MHA.
7Power to request IMHAThe NR can request the involvement of an Independent Mental Health Advocate (IMHA) for the patient. IMHAs support patients by ensuring they understand their rights and can participate fully in decisions about their care and treatment.Section 130A
8Delegation of functionsRegulation 24, Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008: This regulation allows the NR to delegate their functions to another person. The delegation must be in writing, and the NR must notify the patient and relevant authorities (e.g., hospital managers if the patient is detained or under a community treatment order, or the local authority if the patient is under guardianship).
Reference Guide to the Mental Health Act 1983: Paragraphs 2.25 to 2.36 detail the process and conditions under which an NR can delegate their powers, including the requirement to notify the patient and relevant authorities​​​​.
Section 32(2)

Reg 24 MH Regs 2008.
9Displacement and appointment of acting NRIf necessary, the NR can be displaced by a court order on various grounds, such as incapacity or unsuitability, and an acting NR can be appointed to ensure the patient’s needs are met effectively.Section 29

Restricted patients

2.4 Restricted patients, including conditionally discharged patients, do not have a nearest relative for the purposes of the Act. Nor do patients remanded to hospital under section 35 or 36, nor patients subject to interim hospital orders under section 38.

2.5 This is because there is nothing in the Act to say that the provisions in part 2 which deal with the identification of a nearest relative apply to these groups of patients. By contrast, part 1 of Schedule 1 specifically says that the provisions do apply to people subject to unrestricted hospital orders, hospital directions to which limitation directions no longer apply, or unrestricted transfer directions under part 3 (‘unrestricted part 3 patients’).

Delegation

2.27 Nearest relatives may not delegate their functions to:

  • the patient
  • a person who, under section 26(5), is not eligible to be the patient’s nearest relative – see paragraph 2.15, or
  • a person who would currently be the nearest relative, were it not for an order of the court displacing them under section 29 (unless that order was given on the grounds that, at the time, no nearest relative could be identified) – see paragraph 2.37 onward.

2.28 Otherwise, nearest relatives may delegate their functions to anyone who is willing to undertake the role on their behalf. This includes people who were displaced only on the grounds that no nearest relative could, at the time, be identified.

2.29 Nearest relatives may delegate their functions at any time, whether or not a question of admission to hospital or guardianship has already arisen. Likewise, they may revoke the delegation at any time.

2.30 While the delegation is in force, only the person to whom the rights have been delegated may exercise them. The actual nearest relative may revoke the authorisation at any time.

Appointment of acting nearest relatives where there is no nearest relative or where the nearest relative is to be displaced [section 29]

2.37      The rights of a nearest relative under the Act may only be removed and conferred on another person by the county court, or by another court on appeal. Likewise, only the county court, or another court on appeal, can appoint a nearest relative for someone who would otherwise not have one.

2.38      The county court may make an order directing that the functions of the nearest relative are to be exercised by another person, whether or not they are related to the patient and whether or not they would otherwise be eligible to be the patient’s nearest relative. ‘Person’ in this context can include a local authority.

Applications to the county courts [section 29(1), (1A) and (2)]

2.39    An application for such an order may be made by: 

  • the patient
  • any relative of the patient, as defined for the purposes of the Act (see paragraphs 2.6 to 2.11)
  • any other person who lives with the patient or, if the patient is currently a hospital in-patient, was living with them before they were admitted, or
  • an approved mental health practitioner (AMHP) acting on behalf of a local authority.

2.40      The application may, but does not have to, nominate someone whom the applicant would like to be appointed as the acting nearest relative. It may also contain more than one name from which the court will be invited to choose. The court can only appoint a person who is suitable and willing to act as nearest relative (see paragraph 2.49 below).

Grounds on which an application can be made [section 29(3)]

2.41      There are five grounds on which an application can be made, as set out (Table 2).

Table 2 – Grounds on which an application for an acting nearest relative may be made
Ground  Description Section
1No nearest relativeThe patient has no nearest relative as defined in the Act, or it is not reasonably practicable to identify who the nearest relative is.  S29(3)(a)
2Incapacity of nearest relativeThe nearest relative is incapable of acting as such by reason of mental disorder or some other health problem (‘illness’).  S29(3)(b)
3Unreasonable objection to applicationThe nearest relative has been acting unreasonably in objecting to an application for admission for treatment (under section 3) or for guardianship.  S29(3)(c)
4Use of power of discharge without due regardThe nearest relative has exercised the power to discharge the patient from detention, a CTO or guardianship, or is likely to do so, without due regard to the welfare of the patient or the interests of the public.  S29(3)(d)
5Unsuitability of nearest relativeThe nearest relative is otherwise not a suitable person to act as nearest relative.  S29(3)(e)

Conclusion

The nearest relative (NR) under the Mental Health Act 1983 has several key roles and responsibilities designed to protect the rights and welfare of patients. These include the right to be informed about the patient’s detention and treatment, applying for the patient’s admission to a hospital, and requesting their discharge. The NR can object to certain treatments, particularly under a Community Treatment Order (CTO), and can request the involvement of an Independent Mental Health Advocate (IMHA) to support the patient. They also have the authority to represent the patient in various legal matters.

Determining the NR can be complex due to the hierarchical list of relatives, residency requirements, legal exclusions, and patient preferences. Despite these complexities, the NR plays a crucial role in safeguarding the patient’s interests, ensuring that their rights are respected, and that their treatment prioritises their well-being. The NR’s involvement provides an essential layer of advocacy and oversight within the mental health care system.


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