The Mental Health Act (MHA) has built into it a number of safeguards which are there to protect a patient who is, or is to be subject to, compulsory detention under the MHA. One such safeguard is the role of the Nearest Relative (not all detained patients will have a Nearest Relative but that is not relevant for this article as we are looking just at those patients detained under Section 2 and 3 MHA)
Relatives have been involved in patient’s admissions for hundreds of years, but it was not until the MHA 1959 that the role of the relative was afforded a statutory identity. This is now enshrined in Section 26 MHA 1983. Just because a person may have their own mental health problems or indeed are themselves detained in hospital, this does not disqualify them from being the Nearest Relative. As a rule, to be a Nearest Relative you have to be 18 or over, be a resident in the UK and you must fall within the criteria below.
Who Is the Nearest Relative?
So how is the Nearest Relative identified? To begin with the patient cannot choose who their Nearest Relative is. The Nearest Relative is selected according to the criteria which can be found in Section 26 MHA.
(a) Husband or wife or civil partner;
(b) Son or daughter;
(c) Father or mother;
(d) Brother or sister;
(e) Grandparent;
(f) Grandchild;
(g) Uncle or aunt;
(h) Nephew or niece.
Identifying the Nearest Relative is not a demanding test, as one quite simply looks down the hierarchy until the right person is found.
Where more than one relative survives within a category above then by s26 (3) relatives of the whole blood are preferred to those of the same description of the half-blood; the elder/eldest is preferred and the sex of the relative is irrelevant.
For example you have a 20 year old female who is single and living at home with both parents. By working your way down Section 26 you will eventually come to the mother or father. The Nearest Relative will be the eldest. If you were to ask this patient who they believed their Nearest Relative was she would probably say it is her mother. That is what I would say if I was in that position. This is where some patients confuse Next of Kin with Nearest Relative. Your Next of Kin may not be your Nearest Relative but in cases it will be the same person.
The above example is pretty straight forward but what if you had a man who has a chronic mental illness who is divorced, lives with his brother who provides support and he has one daughter and one son who live elsewhere. For a start his ex-wife is immediately disqualified as Nearest Relative. If one looks at Section 26 then straight away you would be forgiven for concluding that either the son or daughter(which ever eldest) would be Nearest Relative because they are higher than his brother.
However his brother lives and cares for him so because of this he would trump the son and daughter Section 26(4).
For this next example I have introduced a well know character, Luke Skywalker. When we first see Luke he is living with his aunt and uncle who are his adoptive parents. They have cared for him since he was a baby. If Luke required detention then the Approved Mental Health Professional (AMHP) would have no difficulty identifying the Nearest Relative. It will be whoever is the eldest out of his aunt and uncle. Even upon reaching 18, because of the care they provide, either his aunt or uncle would be appointed Nearest Relative.
Later on in the film Luke’s aunt and uncle are murdered by Imperial Storm Troopers which means Luke at that time had no identifiable Nearest Relative. So if Luke required detention and the AMHP cannot identify a Nearest Relative, then Luke should be advised of his right to apply to the County Court to have a Nearest Relative appointed for him. Alternatively the AMHP has a discretion to apply to the County Court themselves.
We later find out that Luke does have a relative. His father is Darth Vader. He is now the Nearest Relative. If Luke required detention then the AMHP would have to inform Darth Vader of an application under Section 2 and would have to consult him if an application was to be made under Section 3. The duty to consult the Nearest Relative when making an application for Section 3 is an important procedural safeguard. However given the relationship between Luke and his father the AMHP may conclude that it would not be practicable to consult with Darth Vader if making an application for Section 3. Darth Vader is of course killed and Luke later discovers he has yet another blood relative, his sister Leah. She is now his Nearest Relative.
What Can the Nearest Relative Do?
The person identified as Nearest Relative has very considerable powers governing a relative who needs, who is about or who has been detained under the MHA. For example the Nearest Relative can ask the Local Authority to carry out a MHA Assessment of a relative (Sec 13(4)). The Nearest Relative can make an application for a relative to be detained under either Section 4, 2 or 3 although this very rarely happens but the MHA does allow this to happen.
If a patient is to be detained under Section 3 MHA the Approved Mental Health Professional (AMHP) must consult with the person identified as the Nearest Relative. That person has the right to veto an application which means that the patient cannot be detained unless the Nearest Relative is displaced under Section 29 by the County Court.
Once a patient has been detained there is a statutory obligation by virtue of Section 132(4) MHA to provide information to the Nearest Relative about the patient’s detention and the Nearest Relatives right to order discharge.
In addition, by virtue of Section 133 MHA, with the patients consent, there is a requirement to inform the Nearest Relative of the patients discharge from hospital.
Pursuant to Section 24 MHA a Nearest Relative can authorise a Registered Medical Practitioner to visit a patient so advice can be given as to whether the Nearest Relative should exercise their power of discharge.
For patients detained under Section 2 or 3 the Nearest Relative may seek the patient’s discharge. If the Nearest Relative applies for a patients discharge from Section 3 this can be barred by the Responsible Clinician (“RC”).
The RC can only do this if the patient is likely to act in a manner which is dangerous to themselves or others. Should this happen then an application can then be made to the First Tier Tribunal (Health) within 28 days of receiving notice of the barring certificate. The Nearest Relative will be eligible for free, non means tested legal representation.
What if You Are the Nearest Relative?
If you have been identified as the Nearest Relative then it is important for you to know that you do not have to carry out this important function. You can ask someone else to act as Nearest Relative. If you have been identified as a patients Nearest Relative and you are not sure what this means, you may want our expert help.
To speak to one of our experts, please contact our Mental Health Team by asking for a call back or message us your enquiry.