Nearest relative
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Identification of nearest relative
N.B. On 1 December 2007 the Mental Health Act 2007 (Commencement No. 3) Order 2007 will bring into force s26 Mental Health Act 2007, which amends s26 and s27 Mental Health Act 1983 to give civil partners equal status to husbands and wives when determining a patient's nearest relative.
Order of precedence
MHA 1983 s26 dictates the identity of the patient's nearest relative. Subject to the rules in that section, the NR is the first living person mentioned in the following list:
- (a) husband or wife; or where there is no marriage, or the husband/wife is disqualified (see below), any person who has lived with the patient as husband/wife (or homosexual partner: R (SSG) v Liverpool CC (2002)) for six months (s26(6);
- (b) son or daughter;
- (c) father or mother;
- (d) brother or sister;
- (e) grandparent;
- (f) grandchild;
- (g) uncle or aunt;
- (h) nephew or niece;
- (i) any person, other than a relative, with whom the patient has ordinarily resided for at least 5 years (s26(7))
Who belongs in each category
- "In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated as a relationship of the whole blood" (s26(2))
- "One person is said to be of the whole blood to another when they are both descended from the same pair of ancestors, e.g. two brothers who have the same parents. Persons are said to be of the half blood to one another when they are descended from one common ancestor only e.g. two brothers who have the same father but different mothers." (Osborn's Concise Law Dictionary 8ed)
- "an illegitimate person shall be treated as the legitimate child of (a) his mother, and (b) if his father has parental responsibility for him within the meaning of section 3 of the Children Act 1989, his father" (s26(2)
Higher priority cases
- Where more than one relative survives within each category above, relatives of the whole blood are preferred to those of the half-blood, and the elder/eldest are preferred. (s26(3)
- Where the patient ordinarily resides with or is cared for by one or more of his relatives (or did/was before admission), those relatives are preferred. If more than one such relative exists, the NR is chosen according to the previous paragraph. (s26(4))
Disqualified persons
- Certain people are disqualified from being the NR (s26(5)):
- (a) anyone not ordinarily resident in the UK, Channel Islands or Isle of Man - unless the patient is not so resident either
- (b) a husband or wife if there has been a permanent separation or desertion.
- (c) anyone under 18 years of age, except the husband, wife, father or mother of the patient
Inability of patient to choose NR
The patient has no say in the matter, a situation which has been held to be incompatible with Article 8 (JT v UK (Application no. 26494/95), R (M) v Secretary of State for Health (2003) EWHC 1094). The proposed Mental Health Bill 2006 includes provisions for the patient to apply to the County Court to displace the existing nearest relative.
Delegation
Under Regulation 14 the nearest relative can delegate in writing the exercise of his functions to any other person except those disqualified (see above) and can similarly revoke such authority. The following must be notified:
- (a) the person authorised;
- (b) in the case of a patient liable to be detained in a hospital, the managers of that hospital;
- (c) in the case of a patient subject to guardianship, the responsible local social services authority and to the private guardian, if any.
Right to object to s3
The ASW must consult the person (if any) appearing to be the NR before making an application for admission under s3 - unless "such consultation is not reasonably practicable or would involve unreasonable delay" - and the s3 cannot go ahead if the NR objects (s11(4)). An objection perceived to be unreasonable could lead to displacement proceedings under s29(3)(c).
Right to request discharge of s2 or s3
Under s23(2) the NR has the power to "order" discharge from s2 or s3; however, this right is qualified by the provisions of s25.
The NR must give the hospital managers 72 hours' notice of his intention to discharge the patient. He can use Form 34 (see Mental Health Regulations) or write a letter. It should sent to the MHA administrator.
Within those 72 hours the RMO has the power to prevent discharge by issuing a barring certificate/barring order (Form 36) - he must certify that "the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself/herself". This is the only basis for preventing discharge.
If the RMO does not issue a barring order then the patient would be discharged at the end of the 72-hour period. The RMO could decide to discharge the patient under his own s23 powers before then.
If the RMO does bar the discharge, the hospital managers must consider holding a review (Code of Practice 23.8). They inevitably hold an oral hospital managers' hearing. The managers will, in almost all circumstances, discharge if not satisfied of the dangerousness criterion (see Code 23.12 and R (Huzzey) v Riverside MH Trust (1998) EWHC Admin 465), but retain the discretion not to discharge in exceptional circumstances (R (SR) v Huntercombe Maidenhead Hospital (2005) EWHC 2361 (Admin)).
Another consequence of a barring order - in s3 cases only - is the NR's right to apply to the MHRT for discharge (s66(1)(g) and (2)(d)) within 28 days of being informed of the barring order. The Tribunal must discharge if not satisfied of the dangerousness criterion (s72(1)(b)(iii)).
If the discharge is barred, that NR cannot order discharge again for 6 months from the date of the barring order.
Finally, if it is perceived that the NR has exercised his right to request discharge "without due regard to the welfare of the patient or the interests of the public... or is likely to do so" then this may lead to displacement proceedings under s29(3)(d).
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