Legal Eagle: Explaining the 'Nearest Relative' term in the Mental Health Act
“My daughter is currently detained in hospital under Section 2 of the Mental Health Act. I have been identified as her Nearest Relative. What powers do I have in relation to her treatment and care?”
What is a Nearest Relative?
A Nearest Relative is a legal role under section 26 Mental Health Act 1983, which provides a designated family member with various powers and rights in relation to the person detained in hospital or subject to a community treatment order.
Nearest Relative is determined using a fixed, statutory list and is not based on who the individual is closest to or who they have nominated as their next of kin.
What powers does Nearest Relative have?
If the clinical team is considering detaining your daughter under Section 3, they must consult you, unless it can be shown that consultation is not reasonably practicable or would cause unreasonable delay. If you object to this, then the application cannot be made.
As Nearest Relative, you also have the power to order your daughter's discharge under Section 2 or Section 3 of the Mental Health Act.
It is important to note that if an Approved Mental Health Practitioner (AMHP) feels that you have unreasonably objected to a Section 3 application, or that you have ordered discharge without due regard for your daughter’s welfare, they can apply to the county court to have you displaced as Nearest Relative.
How can I order discharge?
You must provide the hospital managers 72 hours’ written notice of your intention to order your daughter’s discharge from hospital. Once this has been received, your daughter’s Responsible Clinician has 72 hours to consider whether to issue a barring order. A barring order will prevent your daughter from being discharged, but should only be used when the doctor believes that she would act in a manner dangerous to herself or others.
Following this, the hospital managers will hold a hearing to consider if the barring order is justified.
The Nearest Relative will be prevented from ordering discharge again for another six months if the barring order is issued.
If your daughter is detained on Section 3, you also have the right to appeal to the Mental Health Tribunal within 28 days of the barring order being issued.
Ben Hoare Bell LLP has specialist Mental Health Solicitors who can assist with issues surrounding the role of Nearest Relative. To speak to a solicitor please contact us on 0191 565 3112 or email [email protected]. Visit www.benhoarebell.co.uk for further information.