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Certain relatives or carers of patients subject to the Mental Health Act have rights and powers, which are protected by Mental Health legislation. Here, we set out information identifying who can be classed as a "Nearest Relative" together with a summary of their rights.

Nearest Relative (NR)

In our experience, relatives or carers of patients who are detained under the Mental Health Act 1983 are often ill-informed about their rights. Although there is an obligation on Social Workers who are making applications for Sections to provide patients, relatives or carers with information about their rights, we find that there is still a gap as to the information that is provided.

Who is my Nearest Relative?

The "Nearest Relative" is defined by the Mental Health Act and will not necessarily be the "next of kin". The list of blood relatives which should be used to determine which relative comes highest in the pecking order for classification as an NR is as follows:-

-Husband or wife
-Son or daughter
-Father or mother
-Brother or sister
-Grandparents
-Grandchild
-Uncle or aunt
-Nephew or niece

In deciding who the Nearest Relative is, one works down the list until reaching a relative who is living permanently in the United Kingdom. The eldest relative will take priority within a group, i.e. mother will be the NR if she is older than father. Relatives who live with or care for the patient will also take priority. People living together for over 6 months are classed as husband or wife.

What rights/powers does my Nearest Relative have?

Before detention

Right to be consulted

Prior to a Social Worker making an application for a patient to be subject to Section 2 or Section 3 of the Mental Health Act, they must consult, if reasonably practicable the person whom they believe is the patient's Nearest Relative. They need to make reasonable efforts to contact this person and to consult them after the appropriateness of formal detention.

The right to object detention

If when consulted by a Social Worker as to the appropriateness of a Section 3 being completed the patient's Nearest Relative objects to the sectioning, the Social Worker cannot proceed with completing the Section unless the Social Worker applies to the County Court to have the Nearest Relative "displaced".

The application to the County Court and the Displacement of the Nearest Relative is made under Section 29 of the Mental Health Act 1983 and the application is only available if certain grounds are met, i.e. That the patient has no Nearest Relative within the meaning of the Act, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is; That the Nearest Relative of the patient is incapable of acting as such by reason of a 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 for a guardianship application in respect of the patient or; That the Nearest Relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or Guardianship under this part of the Act, or is likely to do so.

What rights does my Nearest Relative have if he wishes to oppose the "displacement"?

A Nearest Relative has a right to apply for Public Funding (Legal Aid) to instruct a Solicitor to represent him in the Nearest Relative Displacement Proceedings. A Solicitor can obtain independent psychiatric and social work evidence to challenge the opinions of the Local Authority.

Following detention

The right to discharge a patient

Responsible Medical Officer

The Responsible Medical Officer will tell a patient when he/she thinks they are well enough to leave hospital and can discharge them at any time. (However patients detained under Section 41 may not be discharged without the consent of the Home Office).

Nearest Relative

The Nearest Relative can order to the hospital managers to discharge the patient when detained under Section 2/3/37 Mental Health Act 1983. The Managers must within 72 hours (3 days) consider the order. If the Responsible Medical Officer considers that the patient should not leave in the interest of the protection of the public, he or she must issue a Barring Certificate. The issue of a Barring Certificate triggers the automatic rights to a managers hearing and a Mental Health Review Tribunal to discuss the issue of dangerousness.

Hospital Managers

If the Responsible Medical Officer considers that the patient is not ready for discharge and the patient disagrees, the patient has the right to apply to the Hospital Managers for a hearing. Reports must be provided by the Responsible Medical Officer, the Social Worker and the Key Nurse assigned to the patient. The application is then discussed by the managers in the presence of the patient and their representative.

Mental Health Review Tribunal

The patient has the right to a Mental Health Review Tribunal to hear an application for discharge. On a Section 2 case the Hearing must take place within 7 days of receipt of the Tribunal application. On a Section 3, 25 or 37 Case, the Hearing is likely to take place approximately 8 to 12 weeks after submission of the application. Restricted hearings i.e. Section 37/41, Section 48/49 or conditionally discharged cases take approximately 16 to 26 weeks after submission of the Mental Health Review Tribunal application for the Hearing to take place. The Tribunal psychiatrist will see the patient before the Tribunal. The Tribunal will then receive reports from the Responsible Medical Officer and Social Worker assigned to the patient and will make the decision on whether or not to discharge after a full hearing at which the patient can again be represented.

Can my Nearest Relative delegate his powers?

If a Nearest Relative wishes to appoint some other person to exercise his rights or powers under the Mental Health Act, then he can authorise in writing some other person to act in his place. The letter must be sent to the Mental Health Act Administrator of the hospital, if a patient is detained, or alternatively to the relevant Local Authority Mental Health team. Under the current legislation, the patient cannot choose or nominate his Nearest Relative.

If you believe that you might have a legal claim relating to What are my relatives/carers rights? , please complete the online enquiry form or call 0870 024 0558. Your enquiry will be forwarded to a solicitor who specialises in What are my relatives/carers rights? .

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