When an individual is detained under the Mental Health Act 1983 (as amended) under certain sections, the law identifies someone as that person’s a ‘Nearest Relative’. This person has certain powers.
These sections involved are 2, 3, 4 or 37, or if the patient is on a community treatment order, or under a guardianship. The ‘Nearest Relative’ is not necessarily your closest relative, rather they are identified by a statutory list:
- (a) husband or wife (including a 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.
Priority starts at the top of the list and if this is not possible the Nearest Relative will be the next person in line.
The most important power is that the Nearest Relative can request (in writing) the discharge of the patient. The patient’s doctor then has 72 hours in which they can ‘bar’ the discharge. They can only bar the discharge on the basis that ‘the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself/herself.’ If the discharge is not barred, the patient should be discharged at the end of the 72 hours. If the discharge is barred, the hospital managers should review the decision.
If the patient is under guardianship, the nearest relative can discharge the section unilaterally at any time.
Preference is given to a relative who the patient ordinarily resides with or a relative who provides care for them. Effectively an ‘(i)’ could be added to the above list as the law states that if the patient has lived with a person for not less than five years they will be treated as if they are a relative.
The court can also appoint a Nearest Relative upon an application – which can be made by the patient themselves. If appointed, this new person will then exercise the functions of a nearest relative. There are certain circumstances where these applications can be made, for example if the patient has no Nearest Relative.
It is sometimes difficult for the nearest relative in statute to be able to take on this responsibility for a range of reasons. On this basis an important consideration could be whether it would be appropriate for them to delegate their functions.
Are changes coming?
There have been suggestions in an Independent Review of the Mental Health Act to replace the Nearest Relative with a nominated person of the patient’s choosing. There is merit in this suggestion. The list does not automatically address that family dynamics are not so straight forward and the hierarchy may not be true to who would be the most appropriate person. To an extent this would align the term ‘Nearest Relative’ with a more everyday understanding of the term.
The role of the Nearest Relative is a fundamental safeguard. Taking for example the year 2015/16 it was reported by the Care Quality Commission that the number of detentions were 63,622. Although, not all of these patients would have had the benefit of the Nearest Relative safeguard, it demonstrates the significant number of people in the UK who are affected by detention in a mental health hospital. It would be regretful if there were not safeguards in place beyond those within the mental health system (namely the powers of Doctors, Tribunals and Hospital Managers). Family members are likely to know their relatives well and be able to understand the complexities of the patient’s situation. Despite this, the powers of a Nearest Relative comes with a lot of responsibility but it is an essential protection for patient’s rights.
Posted on Wednesday, 21st August 2019