Background

What are the rights of the Nearest Relative?

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If a family member has been sectioned

A Nearest Relative is someone who has certain powers and rights in relation to a patient detained under the Mental Health Act. 

Patients who have a Nearest Relative include those detained under: 

  • Section 2;
  • Section 3; 
  • Section 37;
  • Notional Section 37; and 
  • Community Treatment Orders.

Who is the Nearest Relative?

A Nearest Relative is not the same as a next of kin. A person can choose their next of kin, but the patient has no choice as to their Nearest Relative. Instead, the role is assigned according to a hierarchy of relatives.  

The hierarchy is:  

  1. Spouse or civil partner (or someone who has lived with the patient as their spouse for at least six months);
  2. Child (if over 18); 
  3. Parent; 
  4. Sibling; 
  5. Grandparent; 
  6. Grandchild; 
  7. Uncle or aunt; or
  8. Nephew or niece. 

Where there is more than one relative in each category, then the eldest is preferred.  

There are some exceptions to the above, and it is not always straightforward to establish who the Nearest Relative is.   

Can I discharge my relative?

For patients who are detained under Section 2, Section 3 or who are subject to a CTO, the Nearest Relative has a right to discharge the patient.  

But this must be used carefully because they can be displaced as Nearest Relative if it is felt that they have exercised their power of discharge without due regard to the patient’s welfare or to the interests of the public.

The Nearest Relative must notify the hospital that they are ordering discharge in writing. The patient’s Responsible Clinician then has 72 hours to decide whether to bar the discharge. 

In order to bar it, the Responsible Clinician would have to consider that the patient would act in a way dangerous to themselves or others if discharged. This means causing serious physical injury or lasting psychological harm.

If after 72 hours the Responsible Clinician has not barred the discharge, the patient is free to go. 

If they do bar the discharge, the section remains in place.

However, the barring will trigger a Hospital Managers’ Hearing, which will review the Responsible Clinician’s decision to bar the discharge. The Managers can choose to discharge the patient.

For Section 2 patients, the process ends there.  

For Section 3 and CTO patients, where a Responsible Clinician has made a barring order, the Nearest Relative then has a right to apply for a Tribunal. This is separate from the patient’s own right to apply for a Tribunal.   

Both the Nearest Relative and the patient are entitled to free legal representation in the Tribunal proceedings.

For Section 37 and notional Section 37 patients, the Nearest Relative has no right to discharge the patient. However, the Nearest Relative does have a right to apply for a Tribunal. Although for patients under Section 37, they cannot do so during the first six months of the Section 37 order being made.

The right to free legal representation at the Tribunal is the same as for Section 3 and CTO patients as above.

Do I have a right to receive information about my relative?

The Nearest Relative has no legal right to be kept up to date of a patient’s general progress in hospital. However, it is good practice for the hospital to share information with relatives as long as the patient consents.

The Nearest Relative does have the right to receive the following information about the patient: 

  • When the patient’s section has been renewed;
  • When the patient has transferred hospitals; and 
  • When the patient has been discharged. 

However, information should not be shared if the patient objects.  

An exception would be where the patient lacks mental capacity to object. In this case, the Nearest Relative should generally be given the information regardless of the patient’s views, unless it would be ‘impracticable’ to do so.

What does ‘Impracticable’ mean? Roughly, that sharing the information would have a detrimental effect on the patient greater than any advantage gained from informing the Nearest Relative. 

My relative might be sectioned. Can I stop it?  

For a patient to be detained under Section 2 or Section 3, the agreement of two doctors and an approved mental health professional is needed.

For Section 3, the approved mental health professional has a duty to obtain the consent of the Nearest Relative before proceeding.   

If the Nearest Relative objects, then the Section 3 cannot proceed, although steps may be taken to displace the Nearest Relative in the county court if it is felt that they have unreasonably objected.

The approved mental health professional does not have to consult with the Nearest Relative beforehand where it seems to them that doing so would not be reasonably practicable or would involve unreasonable delay. They must record their reasons for this.  

Where the approved mental health professional is applying for a Section 2, the Nearest Relative has a right to be informed, but they have no power to object to the Section 2.

I don’t want to be the Nearest Relative. Can I stand down? 

A Nearest Relative may not want this responsibility and may want to hand the role over to someone else. Delegation of the role is a straightforward matter, as long as both the existing Nearest Relative and the proposed new one agree to the handover of responsibility.

Both parties should sign and date a form saying that they wish to delegate the role, and send a copy to the Mental Health Act Administrator at the hospital where the patient is detained, and ask them to update their records accordingly.  

The new Nearest Relative does not have to be related to the patient. However, there are some people who are not eligible to become a patient’s Nearest Relative. For example, anyone who is under 18, or anyone who does not live within the UK, Channel Islands, or the Isle of Man.  

It should be noted that the delegation can be revoked at any time by the original Nearest Relative. 

Can I be removed as Nearest Relative against my will? 

Yes, in certain circumstances.

An application to displace a Nearest Relative may be brought in the county court.

A person can only be displaced as Nearest Relative on specific grounds.

These are:

  1. The person is incapable of fulfilling the role due to a mental disorder or other illness;
  2. The person unreasonably objects to a Section 3 of Guardianship application being made;
  3. The person has exercised their power to discharge the patient without due regard to their welfare or to the interests of the public (or is likely to do so); or
  4. The person is otherwise not a suitable person to fulfil the role.

The following people may bring proceedings:

  • The patient;
  • Any relative of the patient;
  • Anyone the patient is living with, or lived with before admission; or
  • An approved mental health professional.

The application should name the suggested new Nearest Relative, who does not need to be a relative but should be acquainted with the patient. If there is no-one suitable and willing, then it’s likely that the Local Authority will be appointed to perform the role.

How can we help

If you have been appointed as a Nearest Relative for someone who has been detained under The Mental Health Act and require further help and advice contact our Mental Health team on 01733 882800 or email [email protected].

Sarah Rein BA Msc, Solicitor


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