The importance of the Nearest Relative and their power to discharge patients detained under the Mental Health Act (MHA) 1983.
Your nearest relative is usually a family member who has special rights and responsibilities if you are detained in hospital under sections 2 or 3 MHA 1983, you are subject to a community treatment order or you are subject to guardianship (section 7).
Section 26 MHA 1983 sets out a hierarchical list of who your nearest relative is with the person who is highest on the list being your nearest relative. The list is as follows:
Husband, wife or civil partner (including cohabitee for more than 6 months).
Son or daughter
Father or mother (an unmarried father must have parental responsibility to be nearest relative)
Brother or sister
Uncle or aunt
Nephew or niece
Please note then when using this list, the following considerations apply:
The nearest relative must be over 18 years old unless they are your mother, father, husband, wife or civil partner.
The nearest relative must live in the UK, Channel Islands or the Isle of Man unless you normally live abroad too.
If you are permanently separated from your partner, they cannot be your nearest relative.
Where there are two people in the same group (mother and father) the elder person is the nearest relative.
If you have a carer who has lived with you for more than 5 years, they will be the nearest relative instead of the person who is highest in the list above.
Half blood relatives like half brother or sister can be your nearest relative if you do not have a whole blood relationship with anyone else.
If you have an adoptive mother or father, they can be your nearest relative.
However a step-mother or step-father cannot be your nearest relative.
Should you not have a nearest relative, then you can apply to your local county court to appoint a suitable person to be your nearest relative.
Once you have identified who your nearest relative is, the nearest relative has the following rights:
The right to apply to apply for you to be sectioned or placed nder guardianship.
The right to object to you being sectioned or placed under guardianship.
The power to discharge you by writing to the Hospital Managers to request your discharge and if their request is barred by the Responsible Clinician, the right to apply to a Mental Health Tribunal in some cases (section 3 and CTO).
The right to ask for an independent advocate to give you support.
The right to be consulted and/or given information about you if you are sectioned.
The ability to delegate their powers as nearest relative in writing to someone else.
Of particular interest is the power of the nearest relative to discharge a patient who is subject to sections 2 or 3 MHA 1983 or who are subject to a community treatment order or guardianship. Please note that a nearest relative is not able to discharge you if you are subject to Section 37 MHA 1983.
The process of the nearest relative applying for discharge is set out under Section 25 MHA 1983 and is as follows:
Your nearest relative writes to the Hospital Managers to discharge you in 72 hours’ time.
The Responsible Clinician has 72 hours from the date and time the letter was received to decide whether to agree and allow discharge or to make a report to the Hospital Managers to block and bar the discharge.
The grounds for barring the discharge are if the Responsible Clinician is of the opinion that if you were discharged, you would be likely to act in a manner which is dangerous to other persons or to yourself.
Should the Responsible Clinician bar the discharge for the reason mentioned above, the application by the nearest relative to discharge you will have no effect and the nearest relative will not be able to use their power of discharge for the next 6 months.
It should be noted that the Responsible Clinician cannot bar a discharge by the nearest relative for someone who is subject to guardianship (section 7 MHA).
The nearest relative’s power of discharge is more effective at achieving discharge for the patient because of the extra criterion of “dangerousness” mentioned above. It is the author’s experience that in many cases where a patient may meet the criteria for detention under section 2 or 3 MHA or where a community treatment order may be suitable for the patient, the patient would not be likely to act in a manner dangerous to other persons or himself and so can be discharged because they do not meet the dangerousness criterion.
Where the discharge is barred, paragraph 31.11 of the Code of Practice states that the Hospital Managers should consider holding a Hospital Manager’s Hearing to review the patient’s current detention. Please note that there is no obligation for the Hospital Managers to hold a Manager’s Hearing in this situation, only a duty to consider holding a Managers’ Hearing.
It is the author’s experience that Hospital Managers’ hearings are rarely held where the Responsible Clinician has barred the nearest relative’s application for discharge and that even though the Managers are under a duty to consider the dangerousness criterion when the Managers’ Hearing does happen, they still retain a residual discretion under paragraph 31.21 of the Code of Practice not to discharge the patient despite the dangerousness criterion not being met.
Therefore it is the author’s opinion that the only effective way to challenge the Responsible Clinician’s decision to bar the patient’s discharge on the grounds of dangerousness is for the nearest relative to make an application to a Mental Health Tribunal.
It is important to note that for patients detained under section 2 MHA, the nearest relative is not able to apply for a Tribunal to challenge the barring report of the Responsible Clinician and so if the Hospital Managers decline to discharge the patient, there is no further action the nearest relative can take.
The nearest relative can only apply to the Tribunal under Section 66(1)(g) MHA where the barring report by the Responsible Clinician is made in relation to a patient detained under section 3 MHA 1983 or subject to a community treatment order.
The nearest relative has 28 days from the day on which he was informed that the barring report was made by the Responsible Clinician to apply to the Tribunal (section 66(2)(d) MHA).
The advantage of the nearest relative applying for a Mental Health Tribunal is that the Tribunal is obliged to discharge the patient if the dangerousness criterion is not met and so the patient is more likely to be discharged by this method rather than by a Hospital Managers’ Hearing.
Please note that if the nearest relative is perceived to exercise his right to request discharge “without due regard to the welfare of the patient or the interests of the public… or is likely to do so” the nearest relative may be displaced by an application to the County Court under Section 29(3)(d) MHA. Therefore it is important to bear this in mind before a nearest relative makes an application to a Mental Health Tribunal.
Peter Edwards Law