The Mental Health Act 1983 and the nearest relative

The Mental Health Act 1983 provides a variety of roles, duties, powers and responsibilities for the nearest relative concerning detention of an individual. Mark Pritchard explains the role of the “Nearest Relative”.

Mark Pritchard

Who is the nearest relative?

Section 26 of the Mental Health Act 1983 states that a person’s nearest relative is normally the person closest to the top of the following list;

  • Husband, wife or civil partner,
  • Son or daughter,
  • Father or mother,
  • Brother or sister,
  • Grandparent,
  • Grandchild,
  • Uncle or aunt,
  • Nephew or niece,
  • Other persons with whom the patient has been residing with for at least five years.

Those entitled to act as nearest relative include both “whole blood” and “half-blood” relations though “whole blood” relatives are preferred. In the even that two people meet a criteria the elder relative is considered to be the nearest relative.

Relatives living abroad, separated spouses and those under the age of 18 are discounted.

Though the general rule is that the person highest up the list is considered to be the nearest relative if someone lower down the list is the carer of the patient, or lives with the patient at the home where they “ordinarily reside” they will be the nearest relative.

In the event that it is unclear who the nearest relative is the Local Authority must in good faith decide who the person “appearing to be” the nearest relative is.

What are the duties, powers and responsibilities of the nearest relative?

The nearest relative’s duties, powers and responsibilities include the following;

  • The power to make an application to for admission for assessment (Section 2) or treatment (section 3).
  • The power to require the Local Authority to appoint an approved mental health professional (AMPH) to assess if admission under section 2 or 3 is required.
  • An entitlement to written reasons if the AMPH decides not to make an application to admit.
  • The right to be kept informed regarding any applications for admission under section 2.
  • The right to be consulted before any applications for admission under section 3 are made.
  • The power to discharge a patient detained under section 2 or 3 on 72 hours notice. This discharge can only be blocked if the responsible clinician certifies under section 25 of the act that the patient will act in a manner dangerous to others or themselves.
  • A right to apply for the Mental Health Review Tribunal to review detention if a section 25 certificate is made.
  • The right to receive information as to the section under which the patient is detained, unless the patient objects.
  • The right to information regarding patient discharge unless the patient objects.
  • The power to request that an independent mental health advocate is appointed.

What duties does the AMHP and Local authority have to the nearest relative?

Failure by the Local Authority to comply with their obligations is capable in some cases of rendering treatment unlawful per S-C (Mental Patient: Habeas Corpus), Re [1996] Q.B. 599.

In the case of the case of GD v Hospital Managers of the Edgware Community Hospital [2008] EWHC 3572 (Admin) it was held that detaining a patient under section 3 of the Mental Health Act 1983 was unlawful as consultation with the nearest relative was not meaningful. Mr Justice Burnett stated:

“They set in motion a course of events which was designed to leave consultation with GD’s father to the very last moment, and thus seriously inhibit the chances of his having any effective input into the process and the chances of his having an opportunity to make an objection. In those circumstances, what in my judgment they contemplated could not properly be considered consultation at all.”

What happens when the decisions of the nearest relative are disputed?

Under Section 29 of the Mental Health Act 1983 the patient, any relative, person who lived with the patient at the time of detention or the AMHP can apply to replace the nearest relative. The case law suggests that AMHPs account for the overwhelming majority of such applications.

The grounds for replacement under section 29 are as follows;

  • The patient has no nearest relative within the meaning of the Act,
  • That the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;
  • That the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient;
  • That the nearest relative of the patients has exercise without due regard to the welfare of the patients or interests of the public his power to discharge the patient under the act, or is likely to do so; all
  • The nearest relative of the patient is otherwise not a suitable person to act as such.

The body of case law in respect of Section 29 is almost exclusively concerned with unreasonable objections to applications for admission or guardianship. The test for unreasonableness was established in W v L [1974] QB 711 by Lord Denning which established an objective test of reasonableness.

It has proven to be a very high hurdle for any nearest relative to pass. Due to the inherent imbalance between the often medically unqualified nearest relatives and doctors it is difficult to establish that an objection is reasonable.

The then Lady Justice Hale in Smirek v Williams [2000] 4 WLUK 235 said the following;

“… this case illustrates several aspects of the mental health law which give rise to the greatest possible sense of injustice on the part of patients and from time to time their families … it illustrates the overriding of the views of the nearest relative, and in practice how difficult it is for the nearest relative to avoid being found unreasonable if his views differ from those of the hospital”

Mark Pritchard is available in section 29 cases acting for both the Local Authority and nearest relative.