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Close Relatives Only
The nearest relative is very important in the operation of the Mental Health Act 1983 and has considerable rights and powers. The role given to someone’s nearest relative is one of the key safeguards in the Mental Health Act. Your nearest relative could make an application for your admission, order your discharge from hospital or a Guardianship Order, must be consulted before applications under the Act are made, and can be invited to attend at a Mental Health Tribunal. I want to explore what being a nearest relative means.
Nearest relative or next-of-kin
You will have come across the term next-of-kin. That is a very different term, and is usually the person listed in the care home or hospital records as the person to contact in the event of an emergency or if the person has become seriously ill. You can decide who you would like listed as your next-of-kin.
The list of possible relatives
There’s no such choice with who is recorded as your nearest relative – that is prescribed in law, in section 26 of the Mental Health Act to be precise. So your nearest relative is the person at the top of the following list:
husband or wife [or civil partner];
- son or daughter;
- father or mother;
- brother or sister;
- uncle or aunt;
- nephew or niece.
Now it does get a bit more complicated than that. You’ll see at the top of the list is husband or wife. That means what it says but would also include a man and woman living together as though they were husband and wife. Following recent amendments to the Act, this now includes civil partners, as well as two men or two women living with each other, as though they were civil partners. The next issue to consider is a nearest relative must be over the age of 18 (except for your spouse if they were younger than 18), and the elder of the two in any ranking counts as the nearest relative. You can only have one nearest relative. Now this is beginning to sound like the rules of a card game! I’ll give you an example. If I was not married or living with someone, then I would look to the next category in the list, which is son or daughter. If I had a son aged 19 and a daughter aged 21, then my daughter would be my nearest relative. There’s a few more caveats in this. The person who is regarded as the caring relative jumps to the top of the list. So if in the above example, my daughter lives a long way away and I don’t see her much, but my son lives round the corner and provides me with a lot of practical and emotional support, he would jump to the top of the list. However if he moved abroad, he’d drop off the list altogether! Finally there’s one another possible person who could qualify as a nearest relative and they are right at the bottom of the rank ordering. That is someone who is not a relative but has resided with the person for more than five years. That might include two friends who share a house, but might also include residents in a care home. Here’s an example. Clara has no living relatives in the Section 26 list. She has been a resident at the Sunset Care Home for seven years. She is being assessed with a view to admission to hospital under the Mental Health Act. Clara’s nearest relative must be consulted as part of the assessment process. Who is the nearest relative? We’d have to find out who was the eldest of all the residents who had lived in the care home alongside Clara!
Now the sometimes complex job of identifying who is the nearest relative is down the Approved Mental Health Professional or AMHP for short (typically a social worker, but may be a nurse or other professional). As I have described in previous articles, the AMHP undertakes applications under the Mental Health Act following recommendations from two doctors. As you can imagine there may be a fair bit of detective work involved with this, and sometimes the wrong nearest relative gets recorded. In a scenario where an AMHP is interviewing a care home resident about possible admission to hospital, they may ask the care home staff who they believe is the person’s nearest relative. This will highlight the importance of record keeping. Your resident records will include the name of the person’s next-of-kin to be contacted in the case of an emergency. If one of your residents has been subject to the Mental Health Act, the records should also include the name of the nearest relative. It might well be the same person who is recorded as the next-of-kin, but it may be different!
You may be wondering what happens if the person does not want their father, or sister acting as their nearest relative. They may have a very damaged relationship. Your nearest relative might not always have your best interest at heart! Well, following a recent change in the Mental Health Act, someone would have the opportunity to go to a court and have that nearest relative changed. Conversely, if your father or sister (I’m just giving those as examples, we could be talking about any of the relatives in the list) didn’t want to be your nearest relative, they could delegate that to another willing relative.
One more possibility, your nearest relative may not be capable of acting, or may be acting unreasonably, or there may be no-one alive on the Section 26 list. In these cases the AMHP can apply to the County Court, for the court to appoint a nearest relative.
The law in Scotland
In Scotland the law around this issue is slightly different. The concept of the nearest relative is still there in the Mental Health Care and Treatment (Scotland) Act 2003, but now the person can nominate someone of their choosing to act as the named person, to fulfil the roles and rights of the nearest relative. Only where someone had not nominated a named person, would the nearest relative act in that role.