The rights of the Nearest Relative in Mental Health sectioning

The team “Nearest Relative” (NR) is a term used in the Mental Health Act. The nearest relative has some rights when someone is, or may be, detained under the Mental Health Act (this is sometimes called ‘being sectioned’ or ‘being held under section’).

  • It is not the same as the next of kin. The next of kin has no rights under the Mental Health Act.
  • Nearest relatives can ask for an assessment to decide if their relative should be detained under the Mental Health Act. They can also request that their relative is discharged from hospital.
  • An application can be made to the County Court to have a nearest relative removed or changed if they do not feel that they are the right person for the role.
  • The nearest relative does not have the right to be told everything about the patient. This could include information about what treatment the patient is taking. This will depend on whether the patient is happy for information to be shared.

 


Who is the nearest relative?
Section 26 of the Mental Health Act explains who can be the nearest relative. A patient can not choose their Nearest Relative.

The term relative is defined by the Mental Health Act as a list. The Nearest Relative will be the person who comes highest on the list, however, there are other rules that may affect who the Nearest Relative will be.

  • Husband, wife or civil partner
  • Son or daughter
  • Father or mother
  • Brother or sister
  • Grandparent
  • Grandchild
  • Uncle or aunt
  • Niece or nephew

If there are two people who could act as Nearest Relative (e.g, a mother and father), the eldest person would assume the role.

The rules that may affect who the Nearest Relative (NR) will be are:

  • The Nearest Relative must be over 18, unless he or she is the husband, wife, civil partner or parent of the person.
  • If the person normally lives with or is cared for by a relative, that person goes to the top of the list and becomes the Nearest Relative.
  • A relative living abroad cannot act as the Nearest Relative for someone who lives in the UK. However, someone living in the UK will still be the Nearest Relative if on holiday abroad. Someone who does not live in the UK can have an Nearest Relative who does not live in the UK.
  • Permanently separated husbands, wives or civil partners, including same sex partners, cannot be the Nearest Relative. Partners are also included when a couple has been living together as husband and wife or as civil partners for six months or more, unless one person in the couple is married to someone else or not permanently separated from them.
  • The eldest person would be the Nearest Relative if there are 2 or more people in the same category. For example a brother and sister. Full blooded relatives will be preferred over half blooded relatives. For example a sister would be preferred to half sister.
  • Someone other than a relative, who has been living with the person for five years or more, will be treated as if they are a relative. This means that person may become the Nearest Relative, unless someone in the above list is either living with or caring for the patient. .
  • Step children are not treated as relatives, but can become the Nearest Relative if:
  • There is no other Nearest Relative and they normally live with the person and have done so for at least five years, or
  • A court decides that they should be the Nearest Relative, or
  • The current Nearest Relative asks them to be the Nearest Relative and they agree, this is known as “delegating”.

What are the nearest relative’s rights?
The nearest relative (Nearest Relative) has certain rights under the Mental Health Act. in almost all cases information will not be shared with the Nearest Relative if the patient does not want it to be.

Right to get information
The approved mental health professional (AMHP) must let the Nearest Relative know that an application is going to be made, or has been made, to detain their relative under section 2 (s2) of the Mental Health Act. The AMHP should tell the Nearest Relative what rights they have to discharge the patient.

The Nearest Relative may not be told that their relative has been detained under s2 if it would have a negative effect on the patient. Negative affect could mean:

  • emotional distress,
  • mental health getting worse,
  • physical harm,
  • financial or other exploitation.
  • Hospital Managers should give the Nearest Relative copies of any information given to the patient in writing. However the patient can block information from being given to the Nearest Relative. This includes if their judgment or reasoning has been affected by symptoms of mental illness.

Right to consultation
The AMHP must speak with the Nearest Relative before someone can be detained for treatment under section 3 (s3), unless:

  • it is not reasonably practical. For example the Nearest Relative can not be found quick enough which could cause treatment to be delayed, or
  • the Nearest Relative is having difficulty with their own health or mental capacity.
  • The Nearest Relative may not be consulted about an application for detention under s3 if it would have a negative effect on the patient. AMHP’s should record their reasons if they do not consult with the Nearest Relative.

Detention under s3 or a guardianship cannot go ahead if the Nearest Relative disagrees with the decision. However a County Court can remove the Nearest Relative if they think that the Nearest Relative is stopping the application for s3 or guardianship on unearest relativeeasonable grounds. This is known as ‘displacement’.

The Nearest Relative cannot stop a community treatment order (CTO) being made.

A patient may not want the Nearest Relative to be consulted about an application for detention under s3. In this case the AMHP should give the NR enough information to allow them to do what the Mental Health Act asks them to do.

Right to ask for assessment
The Nearest Relative can ask social services carry out a mental health assessment. Some families have found this right helpful in a crisis. The Nearest Relative can ask for a mental health assessment through their local social services. You need to speak to the approved mental health professional (AMHP) team. The AMHP on duty will take your request and present it to the team. The team will meet every week and decide if they will do an assessment. This can mean that it may take up to 7 days to hear if they will do an assessment.

You can make your request in writing or over the phone. There is an example letter at the end of the factsheet to ask for a mental health assessment. If they decide not to do an assessment, they have to tell you their reasons why in writing.

Right to apply for admission
The Nearest Relative can ask hospital managers to detain a person under s2, s3, or in an emergency. The Nearest Relative may only be able to apply directly to the hospital if doctors agree that the person should be detained but the AMHP disagrees.

Therefore it may be easier to ask the social services department to make an assessment first, before you apply to the hospital managers.

You will need to complete a specific form to make a Nearest Relative application.

Right to discharge
The Nearest Relative can discharge someone from detention under a Section 2 or Section 3, a community treatment order (CTO) or guardianship. However is not possible if the person has been detained after a judge or magistrate has made a court order.

The responsible clinician is able to stop the discharge in certain circumstances.
The Nearest Relative must be told of the patient’s discharge from detention or CTO. However the Nearest Relative may not be told if:

  • it is not practicable to tell the Nearest Relative, or
  • either the patient or the Nearest Relative has requested that information about the discharge should not be given.

Right to get notice of Discharge
The Nearest Relative should be given 7 days notice of the end of a section or CTO order if possible.

Right to be told about:

  • renewal of a patient’s detention,
  • extension of a CTO, and
  • transfer from one hospital to another.

Right to contact the Independent Mental Health Advocacy service (IMHA)

Patients detained under the Mental Health Act are entitled to get support from an IMHA. This includes people under a CTO. Patients do not have to have help from an IMHA if they do not want it.

An IMHA should visit and talk to the patient if the Nearest Relative asks them to. An IMHA is there to make sure that the patient is heard and understands what their rights are whilst under the Mental Health Act. IMHA’s can talk to staff on the patient’s behalf to help them understand why certain decisions have been made. They can also help healthcare professionals to understand any concerns that the patient has.

Patients can get help from an IMHA and solicitor at the same time.

Right to delegate the role to someone else
The Nearest Relative can pass their Nearest Relative duties to someone else if the other person agrees.