Amending the Mental Health Act: Part 3 – Abolishing the Nearest Relative
This is the third part of our series of briefings on Amending the Mental Health Act.
In the recent Queen’s speech, the government confirmed its intention to amend the Mental Health Act. A White Paper will be published to address the following:
- A greater control for patients over their treatment
- Making sure patients have a greater say in that care
- Greater choice and autonomy including the ability to set out preferences for care and treatment in advance
- Ensuring dignity and respect
- Reforming the process for detention and providing greater support for patients to challenge detention
- Making it easier for individuals with learning disabilities and autism to be discharged from hospital and improve how they are treated in law.
In this series of briefings we look at what amendments might be forthcoming.1
Reforming the Role of the Nearest Relative
The statutory scheme created by the current Mental Health Act includes a role for the patient’s nearest relative. This was concisely set out in R(M) v SOS for Health2:
“The nearest relative plays an important part in the scheme of the Act. He may make an application for assessment (section 2), an emergency application for admission for assessment (section 4) and an application for admission for treatment (section 3). No application for admission or treatment under section 3 may be made by an [approved mental health professional [AMHP] without first consulting with the nearest relative unless the [AMHP] considers that such consultation is not reasonably practicable or would involve unreasonable delay (section 11(4)). Unless the patient objects, the managers of a psychiatric institution in which a patient is detained have to inform the nearest relative in writing about, amongst other things, the right to apply to a tribunal, the right to be discharged, the right to receive and send correspondence and the right to consent to or refuse treatment (section 132(4)). A nearest relative may order the discharge of a patient who is detained under [section 2 and] section 3 (section 23). Prior to exercising this important power the nearest relative can appoint a medical practitioner to examine the patient and the appointed practitioner can require the production of records relating to the detention or treatment of the patient (section 24). The right to order discharge under section 23 is limited when the responsible clinician certifies that the patient would, if released, be likely to be a danger to himself or others (section 25). Where a patient is to be discharged other than by the order of the nearest relative, the detaining authority is required to notify the nearest relative of the forthcoming discharge unless the patient requests that no such information is supplied (section 133 (2)).
In addition to the power to order a discharge under section 23 the nearest relative may apply to a tribunal in certain circumstances for the discharge of the patient pursuant to section 66… Where the nearest relative is the applicant to the Tribunal he may appoint a registered medical practitioner to visit and examine the patient and that practitioner may require production of and inspect any records relating to the detention and treatment of the patient (section 76(1)).”
The identity of the nearest relative is dependent upon a statutory list which establishes who this is based on degrees of blood relation and age.3 The working of this part of the Act has been criticised for many years: the statutory scheme in effect “imposes” an individual on the patient as their nearest relative with the right to exercise the range of powers set out above. However, there may be many reasons why that person is either unsuitable or not wanted by the patient.
The fact that the Queen’s speech highlights a greater control for patients, and the review of the Mental Health Act chaired by Sir Simon Wessely (December 2018) suggested changing this area of law is likely to mean that this issue is ripe for amendment.
The Act has always made it possible for an application to be made to the Court to remove the nearest relative, however, this can be a slow legal process. The 2007 amendments allowed patients to apply to the court to make this change, but one wonders how many are in a position to do that.
Sir Simon Wessely’s review of the Mental Health Act recommended replacing the nearest relative with a nominated person chosen by the patient. This was part of their wish to enhance patient choice. The review envisaged interim arrangements for those who were unable to choose their own “nominated person” and restrictions on removing that person just because they object to the admission. It is likely that the White Paper will mirror these proposals.
Earlier debates about the role of the nearest relative have always focused on issues such as whether patients are likely to seek to nominate the Queen or the Prime Minister as their nearest relative. Whether this is a significant risk remains to be seen, however, it could easily be addressed by either:
- Prescribing a category of person who can be appointed or;
- Providing a speedy “cancellation” process that would apply where an inappropriate nominated person is put forward. This action would fall presumably on the detaining authority. If the Tribunal were given jurisdiction to determine this, it will further increase that workload. However, it seems more equitable to organise the system putting the onus on the relevant authorities rather than retaining a reduced level of patient choice by imposing a statutory list.
2  EWHC 1094
3 See Section 26 MHA
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.