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Who is my 'Nearest Relative' and what powers do they have?

Our People - Kathleen Bennet
31 March, 2022

If you have been detained in hospital, or ‘sectioned’ as it is also known, under the Mental Health Act 1983 you may have a ‘Nearest Relative’. This article will explore what the Nearest Relative is, who they are and what powers they have in relation to your care and treatment.

What is a Nearest Relative?

Under the Mental Health Act 1983, you will have a Nearest Relative if you have been detained in hospital under sections 2, 3, 4 or 37, 37 (notional), if you are under a Community Treatment Order (CTO) or a guardianship. It is worth noting that your Nearest Relative is not the same as your next of kin, who does not have any powers regarding your detention and is someone you choose to have information shared with.  

Who is my Nearest Relative?

In determining who your Nearest Relative is, section 26 of the Mental Health Act 1983 has set out an order or ‘hierarchy’ of individuals. The list is fixed and your relative who comes first on the list will be your Nearest Relative. The list is as follows:

  1. Husband, wife or civil partner
  2. Son or daughter
  3. Father or mother
  4. Brother or sister
  5. Grandparent
  6. Grandchild
  7. Uncle or aunt
  8. Nephew or niece

Your Nearest Relative must also be over the age of 18 and live in the United Kingdom. Furthermore, it is always the eldest individual who is your Nearest Relative.  For example, if you are not married and do not have any children, but both of your parents are alive, the eldest of your parents will be your Nearest Relative.

What powers do my Nearest Relative have?

Your Nearest Relative, under the Mental Health Act 1983, can:

  • Apply for you to be sectioned (through a mental health act assessment) or for you to be placed under a guardianship
  • Object to you being sectioned or placed under a guardianship
  • Request for you to be discharged from section
  • Apply to the First-tier Tribunal (Mental Health) for your discharge in some circumstances
  • Be given information, with your permission, about you whilst you are sectioned

As mentioned above, your Nearest Relative can object to you being detained under section 3, but not section 2, of the Mental Health Act 1983. Your Nearest Relative must give a reason for any objection to the approved mental health professional (AMHP). If, however, the AMHP is of the opinion that your Nearest Relative’s objection is unreasonable, they can apply to have your Nearest Relative changed or ‘displaced’. You may also request for your Nearest Relative to be displaced at any stage. A County Court hearing will take place to determine this.

Your Nearest Relative can also write to the hospital managers and request for your discharge if you are detained under section 2, 3 or 4 of the Mental Health Act 1983 or subject to a CTO or guardianship. Note that they cannot do this if you are detained under section 37 of the Mental Health Act 1983 or section 37 (notional). Once this letter has been received by the hospital managers, your responsible clinician has 72 hours to stop or ‘bar’ your discharge. Your responsible clinician must show that you may act in way that would be dangerous to yourself or others if discharged.

If your responsible clinician does bar this request, your Nearest Relative can then apply to the First-tier Tribunal (Mental Health) for you to be discharged. They can only make this application once your responsible clinician has barred your Nearest Relative’s initial request for your discharge.

Contact Us

If you would like more information surrounding your Nearest Relative and their powers, or if you are a Nearest Relative yourself, please contact our Mental Health Team on 020 8492 2290 or email us at sols@gnlaw.co.uk.

Trainee Solicitor
Kathleen Bennet is a trainee solicitor working in the Wills, Trust & Probate department.

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