Information and Representation of Nearest Relatives

Under The Mental Health Act, your nearest relative can have some influence surrounding your mental health care and treatment. They may also be present on your behalf in some hearings. As your nearest relative, they may be informed about certain rights relating to your care and treatment. At Reeds, we can provide information and representation of nearest relatives, along with advice and assistance about your role and powers under the Mental Health Act.

In circumstances where Displacement (the removal of the nearest relative) is being considered, or proceedings have been issued, we can provide advice, assistance and representation at Court.

Under the Mental Health Act, the following people are treated as your ‘nearest relatives’:

  • your husband, wife, or civil partner
  • a partner who has been living with you for more than six months as if they were your husband, wife, or civil partner
  • your son or daughter
  • your mother or father
  • your brother or sister
  • your grandmother or grandfather
  • your grandson or granddaughter
  • your aunt or uncle
  • your nephew or niece
  • anyone else you have been living with for at least five years

Your nearest relative will be established by the person who comes the highest in this list of relatives. For instance, if you are married and have a child, your spouse is the highest person in the list and your child comes second, meaning your spouse would be your nearest relative. If your only relatives are your mother and a niece, for example, your mother comes highest in the list and your niece comes second, meaning your mother would be your nearest relative.

Our expert team of Mental Health Lawyers understand that being sectioned under The Mental Health Act can be an incredibly challenging and difficult to comprehend process. We always treat every case with sensitivity. Our specialist team are on hand to support and guide you through the process. You can call us on 0333 240 7373 or contact Reeds Solicitors LLP on info@reeds.co.uk.

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FAQ

Your nearest relative is determined by section 26 of the Mental Health Act, the following people are considered to be nearest relatives:

  • A husband, wife, or civil partner.
  • A partner who has been living with you for more than six months as if they were your husband, wife, or civil partner.
  • A son or daughter.
  • A mother or father.
  • A brother or sister.
  • A grandmother or grandfather.
  • A grandson or granddaughter.
  • An aunt or uncle.
  • A nephew or niece.
  • Anyone else that has been living with the patient for at least five years.

The nearest relative is usually defined as the person who comes highest in this list of relatives. For instance, if a patient is married and has a child, their spouse is the highest person in the list and their child comes second, so their spouse would be nearest relative. If the only relatives are the patients’ mother and a niece, for example, their mother comes highest in the list and their niece comes second, so their mother would be nearest relative.

There are a few things to note when considering who the nearest relative is:

  • Any relationship of half-blood is treated as a relationship of the full blood.
  • If they are not married or in a civil partnership, the nearest relative would be the person the patient normally lives with or are cared by. If they are in hospital or a care home, this includes people they lived with or were cared for by prior to living in hospital or a care home.
  • A person who is not on the list, can become a relative if the patient ordinarily resides with him, and has done so for five years or more but they will be added to the bottom of the list.
  • Step-children and step-parents are not on the list of relatives.
  • An adopted child is treated as a child of the adoptive parent and not the natural parent.
  • Relatives of the whole blood are preferred over relatives of the half blood if in the same category; i.e a patient has a half brother and a full sister, then the sister would be nearest relative.
  • The eldest is preferred if there are two relatives in one category.

Finally, there are some additional rules that need to be considered when defining the nearest relative:

  • In the exception of a husband, wife, or civil partner, someone who is under 18 cannot be the nearest relative.
  • Unless the patient also normally live abroad (outside of the United Kingdom, the Isle of Man or the Channel Islands), someone who lives abroad cannot be the nearest relative.

Under The Mental Health Act, the nearest relative can have some influence surrounding a patients’ mental health care and treatment. They have rights to be consulted and object to section 3 admissions, rights to request a patients’ discharge, and/or be present on their behalf in some hearings and in some cases, apply for a tribunal on behalf of the patient. As the nearest relative, they may be informed about certain information relating to the patients’ care and treatment, unless the patient requests otherwise.

One role of the nearest relative is that they may order the patients’ discharge. To do this, the nearest relative must give the Hospital Managers notice of their intention to discharge the patient. They can do this by writing a letter or using a form.

The patient’s Responsible Clinician has the power to prevent discharge. To do this, they will be required to issue what is known as a barring certificate/order. In these instances, the Responsible Clinician must certify that if the patient were to be discharged, it is probable that they would act in a manner dangerous to themselves or to those around them.

If the Responsible Clinician does not issue a barring certificate, then the patient will be discharged within 72 hours of receiving the notice. The 72 hours starts running from when either:

  • The letter is delivered at the hospital and received by an authorised person
  • The letter is sent by prepaid post to the Managers

By internal mail, with the Managers’ prior agreement.

Despite the it being a common phrase in today’s society, the term ‘next of kin’ is not defined in law. This naturally creates a lot of misconception about the legal standing that the use of the phrase creates or the powers that arise.

On the contrary, the nearest relative is someone defined under The Mental Health Act.

It is important to recognise that a patient’s nearest relative, as defined under The Mental Health Act, may not be the same person as the patient’s next of kin.

If you are acting on behalf of the patient as the nearest relative at a hearing or tribunal, you may wish to have legal representation from a specialist mental health solicitor.

Cases of this nature are usually free under Legal Aid, subject to a means test. If you are unsure whether legal aid is available to you, please reach out to our team.

Our expert team of Mental Health Lawyers understand that being sectioned under The Mental Health Act can be an incredibly challenging and difficult to comprehend process. We always treat every case with sensitivity. Our specialist team are on hand to support and guide you through the process. You can call us on 0333 240 7373 or contact Reeds Solicitors LLP on info@reeds.co.uk.