Mental Health Act - What is the Nearest Relative?
The Nearest Relative is a really important role and is different to next of kin. This is a specific and unique role to the Mental Health Act. There might be a range of different people providing care to somebody, but under the Mental Health Act only one of those people would be the “Nearest Relative”. It might be someone who is a spouse, parent or sibling.
Who decides who the Nearest Relative is?
People who have been in a relationship and living with the service user for over six months can be considered as their Nearest Relative. The Approved Mental Health Professional would apply the legal criteria and determine who the person’s Nearest Relative is by working through a relationship hierarchy that is specified in the Mental Health Act. A husband, wife or civil partner is at the top of the hierarchy, followed by siblings, parents and then other family members. If there is more than one son or daughter or sibling then the oldest will be the Nearest Relative and this can also be affected by whether the person provides care or resides with the person. It can be quite complicated and should not be assumed.
What right does the Nearest Relative have?
The Nearest Relative has the right;
- To request an assessment under the Mental Health Act.
- They have the right to information about the assessment (unless the service user objects).
- To apply for the persons discharge from the Mental Health Law Administrator and also to request a review by the Tribunal.
- Inform the Nearest Relative of any application under Section 2 and of their power to discharge.
- Consult the Nearest Relative before making an application under Section 3. The Nearest Relative is able to object to the admission for treatment being made.
- Inform the Nearest Relative of their role and rights under the Mental Health Act.
If the Approved Mental Health Professional cannot get in contact with the Nearest Relative they can proceed with the application but will have to document all actions they took to attempt to make contact.
What about restricted service users and service user s detained under s35, s36 or S38?
These service users do not have a Nearest Relative under the Mental Health Act.
What if someone does not have a positive relationship with their Nearest Relative?
If the Nearest Relative and service user do not have positive relationship and the Approved Mental Health Professional might decide that it is not in the best interest of the service user to contact the Nearest Relative. It would need to be clear that this decision is for the wellbeing and safety of the service user and the Approved Mental Health Professional would need to clearly document their justification for this. The Approved Mental Health Professional cannot select another Nearest Relative.
The only way the Nearest Relative can be displaced is through a court process. The service user or the Approved Mental Health Professional can apply for displacement if they have concern about the nature of the relationship.
If the Nearest Relative objects to or discharges the application, but it is thought necessary to proceed with the application to ensure the service user s safety then the Approved Mental Health Professional could also seek to displace the Nearest Relative by applying to the County Court.
What about Carers?
Carers, family members and friends play a significant role in offering informal support and supporting recovery. If someone is identified as providing care and support, but they are not identified as the service users Nearest Relative they can still be included in discussions with the care team. With the service users permission Health and Social Care Professionals will still consult with and take into account the views and wishes of any carers. So an example of that might be, if there is a family where there are a number of siblings involved in caring for somebody, although the oldest sibling would be the Nearest Relative (assuming none resided with the service user) the Approved Mental Health Professional and other professionals would take the views of the other siblings into account (if the service user did not object). Another example might be if the parents are very involved with the care of their adult son or daughter, but they are also married. The spouse would be the Nearest Relative, but the parents views would also be considered (again if the service user did not object).