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).
Appointing a nearest relative
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.
The role of the nearest relative is now considered a safeguard provided to detained patients who benefit from a statutory friend to support them through the period of detention. Critics argue that the requirements for appointing a nearest relative and the rights and powers bestowed on them can be detrimental to patients (Wessely et al, 2019).
The policy aim of trying to ensure the patient has their closest blood relative as the nearest relative means they are not chosen by the patient, but assigned according to a genealogical hierarchy of relatives set out in section 26 of the 1983 Act, with the highest on the family tree being appointed.
The Mental Health Act 1983 does not give a patient's chosen next of kin any legal status and the nearest relative might not be the patient's choice of next of kin, nor is the appointment influenced by a patient having an attorney or deputy under the Mental Capacity Act 2005. Patients are given very little say in who is appointed (Laing et al, 2018).
In JT v United Kingdom [2000] and later in R(M) v Secretary of State for Health [2003], detained patients successfully argued that unsuitable relatives, who had previously abused them, had been appointed as their nearest relatives. The Courts agreed that the appointment procedure and displacement procedure for nearest relatives was incompatible with a person's rights to respect for a private life under article 8 of the European Convention on Human Rights (Council of Europe, 1950).
Although these cases changed the procedure for removing and replacing a nearest relative who is unsuitable, it has not fundamentally changed the appointment process.
The meaning of relative
The meaning of relative under the 1983 Act is set out as a genealogical hierarchy that closely represents a typical family tree:
The meaning of husband, wife or civil partner includes people living with a patient as if they were husband, wife or civil partners, provided they have done so for at least 6 months before the patient's admission to hospital.
The hierarchy also recognised relationships of whole and half-blood and relationships established through adoption. However, it does not accept step relationships. An unmarried father and his relatives would be recognised for a person under 18 if he has parental responsibility under the Children Act 1989, section 3.
A person who is not a relative, but has been ordinarily residing with the patient for at least 5 years before the patient's admission to hospital can also be recognised as the patient's nearest relative. Different rules apply to children looked after by the local authority.
Identifying the nearest relative
To identify a nearest relative, the hierarchy is considered from top to bottom until an eligible person is identified. To be eligible, the person must be an adult (unless they are the patient's mother, father or spouse) and reside in the UK (unless the patient resides abroad).
When two or more people fall in the same category then the older person takes precedence. If a relative lower on the hierarchy ordinarily resides with, or cares for, the patient, then they will take precedence as does a relative of whole blood over one of half-blood.
Rights and functions
Nearest relatives have a number of rights and functions under the 1983 Act to ensure they can exercise their safeguarding function.
Before detention and admission
Before admission, the nearest relative can require the local authority either verbally or in writing to arrange for an approved mental health professional (AMHP) to consider the patient's case, including whether there is a need for compulsory admission to hospital and the local authority must inform the nearest relative, in writing, of the reasons if no application for admission is made (section 13).
The nearest relative can make an application for detention themselves provided there are valid medical recommendations for the person's compulsory admission to hospital either for assessment (section 2) or for treatment (section 3) or in an emergency (section 4). To be lawful, the nearest relative must have seen the patient within 14 days of the application, or 24 hours if the application is for emergency admission. The continued availability of power to apply for detention, which dates from 1774, remains controversial as the applicant usually provides independent scrutiny before detention to ensure it is justified and lawful. The Codes of Practice say that AMHPs are usually a more appropriate applicant (Department of Health, 2015; Welsh Government, 2016). The nearest relative can also make an application founded on two valid medical recommendations, for the person to be received into guardianship (section 7). If the nearest relative does make the application, the hospital managers must request the relevant local authority to provide them with a social circumstances report (section 14).
Where the AMHP makes the application, the nearest relative should be consulted, whenever practicable, before a decision is made about a patient's possible compulsory admission to hospital for assessment (section 2) or for treatment (section 3). The nearest relative can formally object to the making of an application by an AMHP for admission for treatment or guardianship. If the nearest relative took this step, compulsory admission to hospital for treatment or reception into guardianship could not proceed at that time. Although there is no requirement for the nearest relative to be informed and consulted when a community treatment order (CTO) is being considered, the Codes note that consultation at an early stage with the patient and those involved in the patient's care will be important.
Once in hospital
The nearest relative will receive information from the hospital managers or local authority in writing about their rights of discharge and to make an application to the first tier tribunal, or mental health review tribunal in Wales, if that application for discharge is barred (section 23). The 1983 Act also requires hospital managers to take steps to give the patient's nearest relative a copy of any written information given to the patient on admission unless the patient requests otherwise. Nearest relatives must be informed when a patient's detention is renewed, there is an extension to a CTO or a transfer between hospitals.
Discharge
The nearest relative must be told of the patient's discharge from detention or CTO, if practicable, 7 days in advance of the proposed date, unless either the patient or the nearest relative has requested otherwise.
The nearest relative can order a patient's discharge from detention (section 2 or section 3) or from a CTO where the CTO followed detention under section 3. This would also discharge the suspended section 3 underpinning the CTO. The nearest relative must give 72 hours' notice in writing to the hospital. The nearest relative's discharge order may be barred if within the 72 hours the patient's responsible clinician provides a written report that they consider that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to him- or herself.
The barring report prevents the nearest relative from ordering discharge during the 6 months after the report. If the patient were detained under section 2, the nearest relative cannot take the matter further. If the patient is detained under section 3 or on a CTO following section 3, then the nearest relative may, within 28 days of the barring report being issued, apply to the tribunal for the patient's discharge instead. The nearest relative can order a patient's discharge from guardianship (section 7). There is no power for the responsible clinician to bar discharge from guardianship.
Appointment of an acting nearest relative
The nearest relative can delegate their functions to someone else but they can only be removed and replaced by a County Court (Mental Health Act 1983, section 29). The County Court can appoint an ‘acting nearest relative’ who is not related to the patient and would otherwise be ineligible, such as a local authority.
An application for this can be made by:
The application can nominate someone whom the applicant would like to be appointed as the acting nearest relative. The court can only appoint a person who is suitable and willing to act as nearest relative because:
Conclusion
The formal involvement of relatives in the detention process under mental health law is controversial. The role of the nearest relative is now considered a safeguard measure that provides a right to information and discharge.
Mental health nurses must understand the role and function of the nearest relative so they can ensure the detained patients in their care benefit from this statutory friend.