Rights of the Nearest Relative

Mental Health Act 1983

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When the person they care for has been placed under a section: Please note some changes will be made to these rights in April 2007 when the mental capacity act comes into force

Nearest relative update   http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4134230.pdf       

This page has been updated April 2009

The Mental Health Act 1983 is the principal Act governing the treatment of people with mental health problems in England and Wales.

 Major sections of the Mental Health Act (1983) 

Section 2: Allows compulsory admission and detention for up to 28 days for assessment and necessary treatment. This must include an application by an ASW (Approved Social Worker) or a nearest relative and two medical recommendations 

Section 3: Allows compulsory detention for up to 6 months for treatment. This must include an application by an ASW or a nearest relative, plus two separate medical recommendations

Section 4: Allows emergency compulsory admission for up to 72 hours for assessment. An application must be made by the nearest relative or an ASW, but only one medical recommendation is needed. This section order is only used in extreme emergencies, when it is impossible to obtain a second medical recommendation 

Section 5: Gives a doctor (under Section 5(2)) or a nurse (under Section 5(4)) 'holding power' to prevent a client from discharging themselves from hospital if either think it is not in the client's best interests to leave 

Section 135: Enables an ASW to obtain a magistrate's warrant granting permission to enter a person's home if it is felt that the person is a risk or danger to themselves or others due to a mental disorder. The ASW and an approved medical practitioner (i.e. approved under section 12 of the Act) may then force entry with the assistance of the police. Once entry is made, the order allows compulsory detention for a period no longer than 72 hours at a place of safety (hospital or police station) for psychiatric assessment 

Section 136: Allows a police officer to remove someone who appears to have a mental disorder and is at risk to themselves or others from a public place to a place of safety for a psychiatric assessment. Detention must not exceed a period of 72 hours  

^{There are separate specific detention orders for people experiencing mental health disorders within the criminal justice system}

What is meant by "Your Nearest Relative"?
For the purposes of the Mental Health Act 1983, the term "nearest relative" is applied to a person who has certain rights in connection with the treatment and care of a mentally ill person (who, for convenience. Will be referred to as "the patient" throughout this leaflet).
The nearest relative is the person who comes highest in this list:

· Husband or wife (this includes a partner who has lived with the patient as their husband or wife for more than six months)

Or the Eldest child

 - Elder parent - Eldest brother/sister

 - Eldest grandparent 

–        Eldest grandchild

–   Eldest uncle/aunt

–  Eldest nephew/niece

The only exception to this list are that:
· If the patient normally lives with a non-relative (this would include lesbian and gay partners, where applicable) and has been doing so for not less than five years, that person is regarded as the nearest relative;

· If the patient lives with one or more relatives, the eldest will be considered the nearest relative;
· If the highest person(s) on the list is living abroad or is under 18 or is not allowed access to the patient for legal reasons, then the next eligible person is regarded as the nearest relative;
· If the patient is under 18 and subject to guardianship, the guardian will be regarded as nearest relative;
Any of the patient's relatives, or any person s/he has been living with, or a local Social Worker can apply for guardianship.

They can do this if:
· It cannot be determined whether the patient has any other nearest relative;
Or
· The existing relative is too ill to take responsibility;
Or
· The nearest relative makes unreasonable objections to applications for the patient to be admitted for treatment or to be placed under guardianship;
Or
· The existing nearest relative has exercised, or is likely to exercise, his or her rights in relation to the patient in a way which does not give regard to the patient's welfare or to the interests of the public
When a County Court makes an order nominating a particular person or authority to act as the nearest relative, the Court can also cancel if the nominated person requests it, or if a previously absent or ill relative becomes available to take on the responsibility.

What can I do if I do not want to be involved as the nearest relative?

If you are unable to undertake the role of the nearest relative or do not wish to be involved as such you can authorise any person to perform the task. You will need to write to the hospital if the patient is detained or the local social service department. If the patient is subject to guardianship confirming that you no longer wish to act as the patient's nearest relative.
What rights does the nearest relative have?
You have a number of important rights under the Mental Health Act 1983

(i) The Right to require an assessment to be made
If you feel your relative may need hospital care for mental health problems, and s/he is unwilling to seek it personally, you are entitled to ask the local authority where the patient lives to ask an approved social worker to consider the case. The approved social worker might apply for the patient to be admitted to hospital after an assessment by two doctors. If s/he does not, you must be given a written explanation of why an application for detention under the Act will not be made.

(ii) The right to apply for compulsory admission
Although most applications for a person to be admitted to hospital under the Mental Health Act are made by approved social workers-which is usually easier for you and the family-you have the right to make an application yourself. If you want to do this, you will need to get the written support of two doctors (or one in urgent circumstances).
The doctor or approved social worker will advise you on how to make an application, and whether the circumstances are urgent.

What are the nearest relative's rights?

To apply to the Hospital Managers for admission under section 2 of the Mental Health Act (for assessment and any necessary treatment), section 3 (for longer term treatment), section 4 (for admission in an emergency) and section 7 (guardianship). (Note: The Code of Practice to the Act says that it is preferable for the Applied Social Worker (ASW) to make the application.)

To be informed if the Approved Social Worker (ASW) applies for a section 2 admission
To be consulted before the ASW applies for a section 3 admission or for admission to Guardianship
To object to a section 3 admission or an admission to Guardianship. (Note: The detention cannot then go ahead, but the ASW could apply to the County Court to have the nearest relative 'displaced' or removed, because the objection is unreasonable or because the nearest relative is mentally disordered.)
To be informed of the outcome of an assessment. If the ASW decides not to apply for admission, the nearest relative can use his/her independent right of admission

To receive written information about the patient's detention and consent to treatment, unless the patient objects
To be given seven days notice that the patient is to be discharged unless the patient objects
To be given information about Mental Health Review Tribunals including their role, how to apply, how to contact an appropriate solicitor, about legal aid and other help

To require an ASW to assess the patient with a view to admission
To discharge the patient from detention or guardianship, by giving the Hospital Managers 72 hours notice. The Responsible Medical Officer can block the discharge by reporting to the Hospital managers but this will trigger a Tribunal hearing
To apply to a tribunal for the patient's discharge
To delegate their powers as nearest relative to someone else, provided they agree and to revoke this authorisation.

(iii) The Right to Information and Consultation
If a social worker applies for the patient to be admitted to hospital for treatment (section 2), s/he must take reasonable steps to inform you and must advise you of your power of discharge (see below)
If a social worker applies for the patient to be admitted to hospital for treatment (section 3) s/he must take reasonable steps to consult you and obtain your agreement. If you do not agree, then the patient cannot be detained. The social worker might then apply to the County Court and ask for you to be replaced as nearest relative: If this happens, and you object, you should consult a solicitor.

(iv) The Right to Information and Consultation after the Patients Admission to Hospital
The patient has the right to be given certain information concerning:
· His/her detention
· Applying to the Mental Health Review Tribunal
· Discharge from hospital
· Compulsory treatment
· The Mental Health Act Commission
Unless the patient objects, the same information should be given to you in writing as soon as possible.
In addition to the information to which you are legally entitled, it is now widely accepted that, as long as the patient agrees, you should be involved in any discussions and decisions relating to the patients care and treatment.

(v) The Right to Review the Patients Detention
If the patient's detention is being reviewed by the hospital managers or by a Mental Health Review Tribunal, you are entitled to be informed of this and given the opportunity to state your point of view.

(vi) The Right to obtain the Patients Discharge
In the case of patients who are not subject to special restrictions or a hospital order you can, if you wish, write to the managers of the hospital in which the patient is being detained, and tell them that you want s/he to be discharged. If you do this, the patient must be discharged three days after receipt of your letter unless the patient's doctor certifies that in his/her opinion the patient is likely to present a danger to his/herself or to others, if s/he ceases to be detained. As nearest Relative you can ask any registered medical practitioner to examine the patient in connection with your rights to order his/her discharge.

(vii) The Right to apply to the Mental Health Review Tribunal
If your relative is not subject to special restrictions you can apply to a Mental Health Review Tribunal if the patient's mental disorder is reclassified. This means the doctor caring for your relative has changed his/her views on the mental disorder stated at the time the patient was originally detained. You can also apply if you are displaced by a court as the nearest relative.

(viii) The right to be told when the patient is about to be discharged
Unless the patient objects, you should, where practical, be given early notice of his/her discharge.
What arrangements will be made to support your relative in the community when they leave hospital.
Section 117 of the Mental Health Act 1983 requires the health authority and local authority, together with voluntary agencies, to provide after-care for patients detained under section 3, 37, 47, or 48 of the Act. The purpose of after-care is to enable a patient to return to his home or accommodation other than a hospital or nursing home, and to minimise the chances of him needing any future in-patient hospital care. Unless the patient objects, you should be involved in arrangements for planning after care, which should take place before the patient is discharged.

Persons detained under other sections of the Act will be entitled to receive a package of after-care under the Care Programme Approach (CPA). The CPA places a responsibility on health authorities, in collaboration with local authorities, to provide individually tailored care programmes for all mentally ill patients accepted by the specialist psychiatric services.

History of  Approved Social Workers

The first qualified mental health social workers were employed in the UK in the 1920s with the first mental health social work training course in the United Kingdom beginning at the London School of Economics in 1929. The training was influenced by psychosocial explanations of mental distress. Social workers were employed in the community in child guidance clinics as well as psychiatric hospitals. At the time, hospital-based social workers were the only professional group of mental health workers to bridge both the hospital and community settings. Much of their work was focussed on the assessment of family and social circumstances.

Even in the beginnings of the profession, mental health social workers had a clear identity grounded within an explicit value base. For example, in 1939 the Association of Psychiatric Social Workers turned down the suggestion from the British Medical Association to become registered as medical auxiliaries.

 Social work as a profession grew rapidly throughout the post Second World War era along with the social policies to provide for a universal public welfare system.

 The statutory powers contained within the Mental Health Act (1959) gave social workers a legal role in the compulsory detention of someone experiencing mental distress. These powers were later re-defined in the 1983 Act with the provision for Approved Social Workers (ASWs). The underlying principles of ASW work is to have specialist knowledge and skills needed in order to assess the person within their social and environmental contexts and to identify the least restrictive alternatives to compulsory detention to hospital.

Source: http://www.newwaysofworking.org.uk/social_work/contribution_of_social_work.aspx

For Further advice for tribunal appeals contact:
Gateway Mental Health Advisory Service TEL: 01752-669709