Patients detained pursuant to the following sections have a Nearest Relative recognised by the Mental Health Act:
- s,2, s.3, s.4 and s.5
- s.7 (guardianship)
- s.17A (CTO)
The following patients do not have a Nearest Relative recognised by the Mental Health Act:
- s.37/41, s.47/49, s.48/49 (restricted patients)
- s.41 (conditionally discharged patients)
- s.35, s36
Section 26 of the Mental Health Act dictates the identity of a person’s Nearest Relative and the Order is as follows:
- husband, wife or civil partner*
- son or daughter (not including step-children)
- father or mother
- brother or sister
- uncle or aunt
- nephew or niece
- a person who is not a family member but with whom the patient ordinarily resided with for at least five years prior to admission (this will not apply if person is married or in a civil partnership unless the husband/ wife/ partner is disqualified).
* Unless they are separated or deserted. A cohabitee who has lived with the person as husband, wife or civil partner for six months or more will fall within this category.
If two or more persons come under the same category then the elder/ eldest will be classed as Nearest Relative.
The Nearest Relative has certain rights and these include:
- the right to be informed of the persons admission to hospital under s.2
- the right to be consulted and to object to the persons admission to hospital under s.3
- the right to request the discharge of a person detained under s.2, s.3 or CTO
- the right to discharge a person from a Guardianship Order under s.7
- the right to apply to the Mental Health Tribunal in unrestricted cases periodically within the same eligibility as the detained person
- the right to apply to the Mental Health Tribunal in cases where a barring order has been issued (s.3 cases only)
- the right to receive certain information under s.132, s.132A and s.133 MHA
The Nearest Relative can delegate their role to another person, this can be revoked subject to notification conditions. Delegations and revocations must be in writing and take effect upon their receipt by the other person.
The County Court has the power to appoint or displace a Nearest Relative.