Who is the Nearest Relative and What is Their Role?

Hello. Welcome to the state. It'll session in relation to mental health. My name is Steph Barber Andi. I'm a retired solicitor from Law Hound Limited. I was formerly a member off the accreditation scheme with the Law Society in relation to Mental Health Law. This session relates to the Mental Health Act 1983 as amended on. We're going to be looking at who is the nearest relative within the definition of the act on what is their role. So what sections does the role of the nearest relative apply to when is that role relevance? The nearest relatives role relates to seven main sections off the act. Firstly, those detained under Section two of the Act, which allows for up to 28 days off detention for assessment or assessment, followed by treatment provided. Of course, the relevant grounds and criteria are Mex. Secondly, the role of the nearest relative is important in relation to those detained under section three of the Act, which allows for initial period of up to six months of detention for treatment on its renewable. On that, of course, again, it's provided that the relevant grounds and criteria are met the nearest relative role is also important for those detained under Section four or the emergency application admission for assessment of a patient, generally up to 72 hours. Subject again to meeting any relevant grounds and criteria on the roll off. Nearest relative is also relevant in relation to those patients detained under Section five who can be detained for up to 72 hours by a doctor subsection two or six hours by a nurse, subsection four. In the limited circumstances, the nearest relative also has a relevant role in relation to those subject to a community treatment order, or CTO, as inserted by Section 17 off the Mental Health Act 2007. The nearest relative also has a role in relation to unrestricted patients under Section 37. On that C section, which allows a court to deal with defendants who suffer from a mental disorder on, of course, meet the criteria so they can be dealt with by way of a hospital order or guardianship. And finally, the nearest relative also plays an important role in relation to those under ah guardianship Section seven of the Mental Health Act for those aged 16 or over. The role of the nearest relative is not relevant in relation to the following sections off the Mental Health Act, or M H. A. Firstly restricted patients under sections 37 41 sections 47 49 Sections 45 a. On these air defendants that had dealt with by the criminal courts, where the quarters imposed restrictions on the patients discharged. And also it's not relevant to Sections 35 36 which enable the courts to remand the defendant to a specified hospital for assessment and preparation off report in relation to that mental condition on, of course, that relates to criminal proceedings. That's not to say, of course, that the nearest relative doesn't play a vital role in the support for the patient. What I'm meaning here is that there are certain sections off the act where the nearest relative has a relevant role because they have certain powers that are provided within the act and so will need to examine those powers first, let's consider who the nearest relative would normally be on. For this, we need to turn to Section 26 of the Mental Health Act, which sets out who would normally be the nearest relative fairly. Obviously, it's got to be a living person on someone who's normally resident in the UK Channel Islands or the Isle of Man. They will normally have to be aged 18 or over. But that may not apply to somebody spouse, cohabit e or partner. Or, although it's unlikely their parents on the list under Section 27 in order of precedence, is the husband, wife or civil partner. Unless they're purposely separated from or have being deserted or deserted. The person concerned and that includes cohabit ease living together as husband, wife or civil partner provided that they've been living together for at least six months at the relevant time on That's basically the time of admission under the act for those detains. Next in line is the son or daughter, including adopted Children, often adoptive parent but not the adopted person's birth family. Next is the father or mother, then the brother or sister, then grandparent's then grandchild uncle around nephew or niece and finally, someone other than a relative or cohabit e, with whom the person concerned ordinary resides. Aunt has done so for at least five years, and where there's more than one person in the same category, for example, with siblings. Then the nearest relative will be off the full blood Andre, the eldest within that category. And just to be clear, the nearest relative Condell a gate their functions to somebody else. Andi. It can change. For example, if a patient marries Onda. Also, the nearest relative can actually be displaced, as we need to examine later. Just because someone takes precedence on the list in relation to nearest relatives in accordance with Section 26 off the MH A doesn't mean to say that they actually have to accept the role. Andi perform the relevant functions on take up the relevant powers and in fact, provided that they comply with the notification requirements and particularly in relation to the mental health, hospital guardianship and treatment. England Regulations of 2008 on the person they want to delegate to is not disqualified. There should be no problem in delegating the role in terms of notification. Under the regulations, the nearest relative who wants to delegate their functions must immediately notify the following the patient the relevant hospital managers if the patient is liable to be detained in a hospital the responsible local social services authority on the private guardian. If the patient is subject to guardianship and finally the managers off the responsible hospital. If the patient is a community patients, any delegations and subsequent revocations must be in writing. They don't have to be in a particular former, but they can be by Elektronik communication. If the recipient agrees on again, you would need to consider the regulations so that you comply with those 2000 and eight regulations. So let's examine who a nearest relative could actually delegate to. Basically, that can be almost anybody provided that they are not, of course, the patient themselves on their not disqualified from being the nearest relative because they don't meet the criteria. For example, they're not ordinarily resident within the UK, and that includes the Channel Islands and the Isle of Man. And it can't be a person who's being displaced under Section 29 of the act, which will examine separately. And it is possible to revoke the dedication subject to the same notification conditions in relation to appointments. So, for example, it must be in writing. So let's examine appointment on displacement off the nearest relative on that start with who can apply while effectively the following people can ask a court using Section 29 to appoint or indeed displace on acting. Nearest relative on those people are the patient any relative of the patient, anyone with whom the person is residing or waas residing prior to admission on unapproved mental health, professional or AM HP? And so Section 29 allows the patient to apply for what is referred to as the displacement off the nearest relative on that is removing the person who would become the newest relative in accordance with the Section 26 list Onda nominating another nearest relative so that that person can in fact assumed the role of news relative. And that would be, of course, unless the court finds that the nominated person would be unsuitable. Or, of course, they decided simply not to displace the current nearest relative, Andi. The section 29 grounds for the appointment or displacement of the nearest relative, if you like, are that there is no nearest relative, according to the definitions, or it is not being practicable. Two workouts who the nearest relative is, or whether indeed there is one second round is that the nearest relative is incapable of acting as such by reason of mental disorder or other illness, thirdly, that the nearest relative is unreasonably objecting to an application or admission for treatment under Section two or guardianship application in the Section seven. Fourthly, that nearest relative has used or is likely to use their right to discharge a patient under Section 23 without due regard to the wealth of the patients or the interests off the public on the fifth and final ground was added by the 2000 and seven mh A, and that is that the nearest relative is not a suitable person to act. And actually making a section 29 does have implications. For example, if a patient is detained under Section two when the application is made on, the application is made on the grounds that either the newest relative is unreasonably objecting to the application or that they have used or likely to use their rights to discharge the patient under Section 23. Then the patient section to detention is extended for seven days, or until a section 29 application is dealt with. Or indeed, a displacement order is made, and so who can the nearest relative role be delegated to under Section 29? Well, the application would normally nominate a person to be appointed as the newest relative on provided that person is suitable on willing to do so. Then the court will normally appoint them, and if not and a Section 29 the court will appoint someone else who is suitable and willing. Andi. The act does also provide that the court can make an interim application in relation to an appointment of a nearest relative. So what are the nearest relatives powers in relation to the Mental Health Act? Well, first of all, the nearest relative has certain powers in relation to detention, particularly under Section 23. Off the act. However, these powers are subject to this section 29 displacement applications on DTA barring under section 25. Subject to that on the Section 23 the nearest relative has the power to order discharge from a Section two or Section three or CTO. However, this right needs to be considered, as I've mentioned with regard to the provisions, particularly off Section 25. So let's have a look when that might come into play well under Section 23 the nearest relative must give the hospital managers 72 hours notice of their intention to discharge the patient. That needs to be done by delivering a written letter tooth, Um, or using a form sent to the MH a administrator within those 72 hours. The responsible condition has the power to prevent the patient's discharge by issuing what's referred to as a barring certificate are barring order in which they are Seema Certify that the patient, if discharged, would be likely to act in a manner dangerous to the persons or to his or her self. That's the only basis for preventing discharge. And if responsible clinician does provide a barring certificate or order, then the hospital managers need to consider holding a review, and that would generally be on aural managers. Hearing the barring order prevents the nearest relative ordering the discharge again for six months from the date off that barring order and in a Section three case only if a barring order is made within 28 days of being informed of the barring order, then the nearest relative has a right to apply to the mental Health Review Tribunal for discharge under Section 66. However, if there's no barring order, that is, the nearest relative has provided their written intention to discharge the patient on the responsible commission has not responded with a barring order, then the patient would be discharged at the end of the 72 our period. The responsible condition could in fact, also decide to discharge the patient on his own section 23 hours before the 72 hour period has expired, just another point to make. If the nearest relative does exercise their powers to discharge under Section 23 then they might well find themselves at the end of an application under Section 29 on the grounds that the nearest relative is unreasonably objecting to a section to our section seven. Or that they have used or are likely to use their right to discharge the patient under Section 23 without due regard to the welfare off the patient or the interests off the public. On that Section, 29 application could well result in the nearest relative actually being displaced from acting. As such, another power at the nearest relative has in relation to a Section three admission or section seven guardianship on. That's the right to object to either of those. When in a M H P makes on application for Section three, for example, they must consults the nearest relative before the application has been made. Unless the consultation is not reasonably practicable or would involve unreasonable delay on effectively, a Section three can't go ahead if the news relative objects so effectively. If the A M H P. D. Suddenly is not to consult, then it's possible that their decision could be challenged in court. However, if the nearest relative does raise an objection to, for example, a Section three order, then the nearest relative might well find themselves on the end of a Section 29 application in relation to displacements. Interestingly, the Department of Health's code of practice in relation to the Mental Health Act recommends consultation with other people before considering detention of a patient in any events. And so, in addition to just consulting the nearest relative, the code actually recommends that there's value in involving other people relating to the patient, particularly their carers. The code also offer some guidance to a M. H. P's about making decision whether or not to consult the nearest relative. Andi states that the A M H P should seriously consider the patient's wishes the nature off the relationship between the patient down, the nearest relative in question, including how long the relationship has existed on whether the patient has referred to any hostility between them on whether any evidence fost il ity abuse or exploitation and, of course, as on the side, that might be other people that need to be contacted, For example, where there's an attorney or deputy appointed under the M C. A or Mental Capacity act. Another power that the nearest relative has is on application to the Mental Health Review Tribunal and in a Section three case and following a barring certificate being issued, the nearest relative can apply to the tribunal for discharge within 28 days of being informed off that barring certificates on din unrestricted hospital order cases, the nearest relative can apply to the tribunal periodically within the same eligibility periods. As for the patients themselves and someone who is no longer a nearest relative because they've bean displaced in relation to objection or exercise of the discharge power, they can also apply each 12 month period after displacements, and finally the nearest relative is entitled to receive certain information unless the patient themselves requests otherwise. And so under section 130 to the hospital needs to ensure that a detained patient understands his detention and tribunal writes on DSO. The hospital must also give ah copy of any written information to the nearest relative and the receptor provision for CTO patients. Several profession for information under section 133 in relation to informing the nearest relative about patient being discharged. Outside of thes statutory provisions, there are limitations to the information that will be shared with the nearest relative because, of course, just because the nearest relative ask for personal confidential information doesn't mean to say that they're entitled to it or will receive it on the general law relating to confidential information applies. So, for example, a health care professional couldn't disclose a patient's diagnosis unless the patient consents or there's another basis in which they can disclose it in accordance with the law, such as sharing information to my knowledge, serious risks that now brings this current mental health session to an end. Thank you very much for joining me, Steph Barber on this Data Law mental health session