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All patients detained under the Mental Health Act have someone known as their “Nearest Relative” (unless they are subject to a Restriction Order). The Nearest Relative is defined in law and should not be confused with the next of kin. Nearest Relatives have certain rights and powers in relation to the patient’s detention and discharge from Hospital. In some circumstances, they can also be displaced.
The Mental Health Act sets out a list of close relatives including spouse, children, and parents, and dictated who should be identified as the patient’s Nearest Relative. This is important because a patient cannot be made subject to certain sections if the Nearest Relative objects.
The Nearest Relative also has the power to request discharge of a patient from hospital or from being subject to a Community Treatment Order. In order to request discharge a written application must be made to the Hospital Managers requesting that the patient is discharged. The patient’s Responsible Clinician, however, has the power to refuse or “bar” the application if they believe the patient would act in a manner dangerous to themselves or others if discharged. They must respond within 72 hours of the Hospital Managers receiving the discharge application if they wish to bar it.
If discharge is barred then an independent hearing called a Hospital Managers hearing is convened. The Nearest Relative would also have the right to appeal to a Mental Health Tribunal in this situation.
In some circumstances, an application can be made to the County Court to remove or “displace” a Nearest Relative. An application can be made by a patient, one of their relatives, any person with whom the patient was residing before they were admitted to a hospital, or an Approved Mental Health Professional. There are various grounds upon which an application can be made.
Our solicitors are able to advise you on this complex area of law and attend any hearings with you, either as a patient or a Nearest Relative, if necessary.
