If you have been detained in hospital, or ‘sectioned’ under the Mental Health Act 1983, you may have a ‘Nearest Relative’. This article will explore who your Nearest Relative is 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), or under a Community Treatment Order (CTO) or a guardianship. It is worth noting that your Nearest Relative is not necessarily the same as your next of kin. Unless they are also your Nearest Relative (as defined under the Act) your next of kin does not have any powers regarding your detention.
Who is my Nearest Relative?
In determining who your Nearest Relative is, section 26 of the Mental Health Act 1983 sets 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:
- Husband, wife or civil partner
- Son or daughter
- Father or mother
- Brother or sister
- Grandparent
- Grandchild
- Uncle or aunt
- 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:
- Request for you to be assessed under the Mental Health Act 1983
- Object to you being sectioned (other than section 2) or placed under a guardianship
- Order for you to be discharged from certain sections
- Apply to the First-tier Tribunals (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) who is assessing you. If, however, the AMHP is of the opinion that your Nearest Relative’s objection is unreasonable, they can apply to have your Nearest Relative removed 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 order 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. 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. In order to bar your discharge, your responsible clinician must show that on balance, you will act in a way that would be dangerous to yourself or others if so discharged.
If your responsible clinician does bar the discharge under section 3, your Nearest Relative can then apply to the First-tier Tribunal (Mental Health) for them to review whether or not to discharge you from section. They can only make this application once your responsible clinician has barred the Nearest Relative’s initial request for your discharge.
What happens if I do not have anyone to act as my nearest relative?
If you don’t have any living relatives listed in the Act (spouse, children, parents, siblings etc.), then the local authority will assume the role of nearest relative.
This means they will take on the responsibilities that a nearest relative would normally have, such as making decisions about your care and treatment if you are unable to do so yourself. This would only apply if you were detained under the Mental Health Act.
Can I change my nearest relative?
There is not a straightforward way to simply “choose” your nearest relative. However, there are situations where you can influence who acts in that role:
- Displacement: If your current nearest relative is unsuitable (due to health reasons, unreasonable objections to treatment, etc.), you can apply to the court to have them displaced. The court will consider your suggestion for an alternative but will ultimately decide who is most suitable.
- Delegate: If your nearest relative is willing to do so s/he can delegate these functions as long as the recipient (i.e. acting nearest relative) also agree – this must be done in writing and communicated to all relevant parties.
- Next of Kin: While separate from the nearest relative, you can designate a next of kin. This is someone you choose to be informed about your medical situation and can be anyone you trust, not necessarily a relative.
How can I change my nearest relative?
There is no direct way to change your nearest relative since it’s legally defined. However, you can initiate a process called “displacement” if you have concerns about your current nearest relative’s ability to fulfil the role.
Grounds for Displacement
You can apply to the County Court to remove your current nearest relative if they are:
- Unable to act due to health reasons.
- Making unreasonable objections to your treatment plan.
- Generally unsuitable for the role.
Suggesting an Alternative
During the displacement proceedings, you can recommend someone you believe would be a more suitable nearest relative. This could be a spouse, child, parent, sibling, close friend, or even someone you used to live with.
The Court’s Decision
The court will consider your arguments and proposed alternatives but will ultimately decide who holds the most suitable position as your nearest relative.
Contact a Specialist Mental Health Solicitor
If you would like more information surrounding your Nearest Relative and their powers, or if you are a Nearest Relative yourself, please contact one of our specialist Mental Health Solicitors on 020 8492 2290.
