The Role of the Nearest Relative in Mental Health Law

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Identifying the Nearest Relative correctly is vital

It is clear that the recent global pandemic has had a significant impact on many people’s mental state, with The Royal College of Psychiatrists reporting that almost half of psychiatrists have seen increases in urgent and emergency cases during lockdown. There are fears people are staying away until they reach crisis point, which will result in a flood of exacerbated and untreated mental illness after the pandemic, and mental health providers are already reporting significant increases in demand and severity of new referrals.

If your relative is suffering from mental health problems and has reached crisis point, they may have had to be detained in a Mental Health Hospital under one of the non-restrictive sections of the Mental Health Act 1983 (amended 2007) for assessment or treatment. If this has happened as the patient ‘s Nearest Relative you should have been identified by the Approved Mental Health Professional (AMPH).

Who is the Nearest Relative?

The Nearest Relative is determined by the rules set out in Section 26 of the Mental Health Act, and has nothing to do with the patient’s “next of kin”. It is important that the correct Nearest Relative is identified as they hold certain rights and powers, with regard to the detention of their relative in hospital. If your relative was detained under Section 3, the AMPH should have consulted you as the Nearest Relative before an application for admission of the patient was made, unless it “was not reasonably practicable or would involve unreasonable delay”.

The consultation requirement does not apply to Section 2 admissions or the imposition of a Community Treatment Order (CTO), and in both cases the Nearest Relative must simply be informed of their relatives admission to hospital.

What can you do as Nearest Relative?

If you are a Nearest Relative and you are concerned about your loved ones detention in hospital, you have the power to order your relatives discharge from hospital under Section 23 Mental Health Act, although this application may be blocked by the Responsible Clinician (Dr).

If your application to discharge your relative is blocked then the Hospital Managers would review this decision in line with the legal criteria for detention at a Managers Meeting. At this meeting in addition to the usual detention criteria, the RC would have to satisfy the Managers that your relative, if discharged, would be likely to act in a way that is dangerous to themselves or others.

If the Managers agree that your relatives RC (Dr) was correct in stopping discharge, then your relative will remain detained in hospital and you would not be able to apply to order discharge for another 6 months. In addition, if the RC (Dr) feels that you as the Nearest Relative were not thinking about the welfare of your loved one or interests of the public, when applying for discharge, this may lead to the Local Authority applying to the County Court for you to be displaced as the Nearest Relative.

In light of this, it is really important that Nearest Relatives seeks legal advice and understand the potential consequences, before applying for their relatives discharge from Section.

There are some situations where the Nearest Relative may apply to the Tribunal, which is a formal legal hearing and is made up of a legal chairman (Judge), a medical member (Independent Dr) and specialist lay member. The role of the Tribunal is to review your relatives detention in hospital and they hold the power of discharge.

The rules allowing the Nearest Relative to apply to a Tribunal depend on which section of the Mental Health Act that your relative has been detained under. The Nearest Relative could potentially be represented at the Tribunal by a Mental Health Solicitor and this could be covered by legal aid, depending on your circumstances.

How can we help?

If you need further information about applying to a Tribunal in order to seek the discharge of your relative, we would recommend you speak to an experienced member of our Mental Health Team on 01733 88200, who can advise you in more detail.

We in the Mental Health Team understand how worrying it can be when trying to help a loved one who is suffering from mental health problems and has been detained in hospital. We would do all we could to assist you as the Nearest Relative, in a compassionate way, helping you navigate the complex legal rules that govern this unique role.

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