The role of the nearest relative in mental health law

The role of relatives in the detention process under mental health law in England and Wales can be traced back to the Madhouses Act of 1774 when there were distinct procedures for detention depending on whether the person was being admitted to a private or public mental health hospital. Under the private system, a person could be lawfully detained once a doctor and relative had signed the papers.

The Royal Commission on mental health law (Lewis, 1957) recommended unification of public and private detention procedures and a revised role for relatives. The Mental Health Act 1959 created ‘nearest relatives’ where the nearest blood relative of the person would be appointed to be a statutory friend during detention (Mental Health Act 1983, section 26).

Under the Mental Health Act 1983, people detained for assessment and/or treatment are allocated a nearest relative. This includes people subject to unrestricted hospital orders, hospital directions without limitations and unrestricted transfer directions (Mental Health Act 1983, schedule 1 part 1), but excludes patients subject to special restrictions, including those detained under sections 37/41.