Nearest relatives
The importance of nearest relatives
19.25The nearest relative provisions are at sections 24–30 of the MHA 1983 and are important because the nearest relative has many functions to play: not least, unless displaced, nearest relatives are entitled to object to the detention of mentally disordered patients who are not excluded criminal offenders. The role of nearest relatives was explained by Maurice Kay J in
R (M) v Secretary of State for Health:
1[2003] EWHC 1094 (Admin).4. The nearest relative plays an important part in the scheme of the Act. He may make an application for admission for assessment (section 2), an emergency application for admission for assessment (section 4) and an application for admission for treatment (section 3). No application for admission or treatment under section 3 may be made by an approved social worker without first consulting with the nearest relative unless the social worker considers that such consultation is not reasonably practicable or would involve unreasonable delay (section 11(4)). The manager of a psychiatric institution in which a patient is detained has to inform the nearest relative in writing about, amongst other things, the right to apply to a Mental Health Review Tribunal, the right to be discharged, the right to receive and send correspondence and the right to consent to or refuse treatment (section 132 (4)). A nearest relative may order the discharge of a patient who is detained under section 3 (section 23). Prior to exercising this important power the nearest relative can appoint a medical practitioner to examine the patient and the appointed practitioner can require the production of records relating to the detention or treatment of the patient (section 24). The right to order discharge under section 23 is limited when the responsible medical officer certifies that the patient would, if released, be likely to be a danger to himself or others (section 25). Where a patient is to be discharged other than by the order of the nearest relative, the detaining authority is required to notify the nearest relative of the forthcoming discharge unless the patient requests that no such information is supplied (section 133(2)).
5. In addition to the power to order a discharge under section 23 the nearest relative may apply to a Mental Health Review Tribunal for the discharge of the patient pursuant to section 66. Moreover if someone else makes an application to the Mental Health Review Tribunal, the nearest relative must receive notice of the proceedings pursuant to rule 7(d) of the Mental Health Review Tribunal Rules. The nearest relative then becomes a party to the proceedings in the Tribunal ‘unless the context otherwise requires’ (rule 2(1)). Once a party to the proceedings, the nearest relative is entitled to be informed as to their progress and may be represented in the proceedings, may appear at the hearing and take such part in the proceedings as the Tribunal thinks proper (rule 22(4)). As a party, he will also receive the decision of the Tribunal and the reasons for it (rules 24 and 23). Where the nearest relative is the applicant to the Tribunal he may appoint a registered medical practitioner to visit and examine the patient and that practitioner may require production of and inspect any records relating to the detention and treatment of the patient (section 76(1)). As the applicant, the nearest relative may attend the Tribunal hearing, be heard by the tribunal, call witnesses and cross examine the witnesses (rule 22(4)). Moreover, as an applicant, he also receives a copy of every document received by the Tribunal (rule 12(1)). Some of these provisions may be modified by the Tribunal in the interests of the patient.
19.26In addition to the functions noted by Maurice Kay J, the nearest relative:
•is entitled to require the social services authority to arrange for an AMHP to consider the patient’s case with a view to making an application for admission to hospital (and, where the AMHP does not make such an application they must give written reasons): section 13(4) of the MHA 1983;
•is entitled to require the Independent Mental Health Advocacy Service to visit and seek to talk with the patient and offer their services (which the patient may decline): section 130B(5) of the MHA 1983.
19.27A period of detention will be unlawful if, inter alia:
•the AMHP fails to take reasonably practicable steps properly to consult with the nearest relative;
2GD v Edgware Community Hospital and Barnet LBC [2008] EWHC 3572 (Admin), [2008] MHLR 282. •the AMHP makes the application despite objection by the nearest relative.
3TTM v Hackney LBC [2011] EWCA Civ 4. 19.28There is guidance about the functions of nearest relatives at Chapter 5 of the Mental Health Act 1983: Code of Practice.
Who are nearest relatives?
19.29‘Relatives’ are defined in section 26(1) and (2):
Definition of ‘relative’ and ‘nearest relative’
26(1) In this Part of this Act ‘relative’ means any of the following persons:
(a)husband or wife or civil partner;
(b)son or daughter;
(c)father or mother;
(d)brother or sister;
(e)grandparent;
(f)grandchild;
(g)uncle or aunt;
(h)nephew or niece.
(2)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, and 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.
19.30The ‘nearest relative’ is essentially the relative that is highest up the above list, with the proviso that –
•where there is a tie:
•relatives of the whole blood are preferred to relatives of half-blood; and
•older relatives are preferred to younger; except that:
•the relative
•with whom the patient ordinarily resides, or did ordinarily reside before becoming a hospital in-patient; or
•is or was cared for by (whether or not they share or shared the same accommodation)
•will be treated as the nearest relative; and
•if there are two such, preference between them will be decided as above (in accordance with blood and age):
section 26(3) and (4).
19.31Section 26(5) excludes persons who otherwise would be nearest relatives on the grounds that (n short) they are not ordinarily resident in the UK (etc), are under 18 or are a permanently separated spouse or civil partner.
19.32Section 26(6) a non-relative with whom the patient has ordinarily resided for at least five years, or did so reside before becoming a hospital in-patient, is to be treated as a relative at the bottom of the relative’s list. That means that they will also become the nearest relative, by virtue of section 26(4); unless a relative higher up the list is living with or caring for the patient.
19.33The nearest relative may delegate their functions to another person, in accordance with regulation 24 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008
4SI No 1184.and regulation 33 of the Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008.
5SI No 2439.The nearest relative is entitled to take back their powers, at any time.
Appointment or displacement
19.34The county court may appoint a nearest relative (usually a social services authority):
•on the application of the patient, any relative of the patient, any other person with whom the patient lives or lived before hospital admission, or an AMHP;
•when a patient does not have a nearest relative, or it is not reasonably practicable to ascertain whether he or she has one or who it is (section 29(3)(a) and (b)).
19.35The county court may displace a nearest relative (usually in favour of a social services authority):
•on the application of the patient, any relative of the patient, any other person with whom the patient lives or lived before hospital admission, or an AMHP;
•on the ground, essentially, of inability to act or unreasonableness:
29(3) An application for an order under this section may be made upon any of the following grounds, that is to say–
…
(b)that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;
(c)that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient;
(d)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 under this Part of this Act, or is likely to do so; or
(e)that the nearest relative of the patient is otherwise not a suitable person to act as such.
19.36For a nearest relative to be displaced on the unreasonableness ground, the unreasonableness has to have existed both at the date of the application and at the date of the court hearing
6Lewis v Gibson [2005] EWCA Civ 587, (2005) 8 CCLR 399.and, in addition, the unreasonableness must be objectively established and outside the range of divergent approaches that reasonable persons may adopt.
7W v L [1974] QB 711.19.37The scheme is flexible:
•an application for displacement can be made at the same time as, or later than, an application for detention under section 3 of the MHA 1983;
8R v Central London County Court ex p Ax London [1999] QB 1260, (1999) 2 CCLR 256. •it is preferable to use other powers under the MHA 1983 to detain and extend detention, before displacing a nearest relative and detaining the patient under section 3;
9R v Central London County Court ex p Ax London [1999] QB 1260, (1999) 2 CCLR 256. •an application can be made ex parte without notice, although that is not usually good practice;
10R (Holloway) v Oxfordshire CC [2007] EWHC 776 (Admin), [2007] MHLR 225. •displacement proceedings extend assessment detentions (under section 29(4)) but, in such cases, to avoid a breach of Article 5(4) ECHR, the Secretary of State should refer the case to the tribunal to ensure there is sufficient court review;
11R (H) v Secretary of State for Health [2005] UKHL 60, [2006] 1 AC 441. •the displacement order will usually set a date for when the displacement ends; otherwise, it ends automatically when the patient is discharged (section 30);
•if that does not happen, the patient, the replacement nearest relative or the displaced nearest relative may apply to discharge or vary the order (under section30).
19.38A nearest relative should in general be provided with sufficient medical information so as to be able to exercise their powers appropriately and, in particular, to consider whether it would be reasonable to discharge a patient or object to their admission.
12R (S) v Plymouth CC [2002] EWCA Civ 388, (2002) 5 CCLR 251; GD v Edgware Community Hospital and Barnet LBC [2008] EWHC 3572 (Admin), [2008] MHLR 282.19.39Further, the displacement of a nearest relative does not take away their continued legitimate interest in the patient’s treatment and care.
13Surrey County Council Social Services v McMurray, 11 November 1994, CA.19.40The displacement provisions are at section 29:
Appointment by court of acting nearest relative
29(1) The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by the person specified in the order.
(1A) If the court decides to make an order on an application under subsection (1) above, the following rules have effect for the purposes of specifying a person in the order–
(a)if a person is nominated in the application to act as the patient’s nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);
(b)otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient’s nearest relative and is willing to do so.
(2)An order under this section may be made on the application of–
(za)the patient;
(a)any relative of the patient;
(b)any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, was last residing before he was admitted); or
(c)an approved mental health professional.
(3)An application for an order under this section may be made upon any of the following grounds, that is to say–
(a)that the patient has no nearest relative within the meaning of this Act, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is;
(b)that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;
(c)that the nearest relative of the patient unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient;
(d)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 … under this Part of this Act, or is likely to do so; or
(e)that the nearest relative of the patient is otherwise not a suitable person to act as such.
(4)If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for admission for assessment, an application under this section, which is an application made on the ground specified in subsection (3)(c) or (d) above, is pending in respect of the patient, that period shall be extended–
(a)in any case, until the application under this section has been finally disposed of; and
(b)if an order is made in pursuance of the application under this section, for a further period of seven days; and for the purposes of this subsection an application under this section shall be deemed to have been finally disposed of at the expiration of the time allowed for appealing from the decision of the court or, if notice of appeal has been given within that time, when the appeal has been heard or withdrawn, and ‘pending’ shall be construed accordingly.
(5)An order made on the ground specified in subsection (3)(a), (b) or (e) above may specify a period for which it is to continue in force unless previously discharged under section 30 below.
(6)While an order made under this section is in force, the provisions of this Part of this Act (other than this section and section 30 below) and sections 66, 69, 132(4) and 133 below shall apply in relation to the patient as if for any reference to the nearest relative of the patient there were substituted a reference to the person having the functions of that relative and (without prejudice to section 30 below) shall so apply notwithstanding that the person who was the patient’s nearest relative when the order was made is no longer his nearest relative; but this subsection shall not apply to section 66 below in the case mentioned in paragraph (h) of subsection (1) of that section.