Mental health law briefing 186 – Next of kin and nearest relative: what’s the difference?

The Mental Health Act confers various rights on a patient’s “nearest relative” in connection with the patient’s detention, supervised community treatment (SCT) and guardianship. The terms “relative” and “nearest relative” are defined for the purposes of the Act in section 26.

Conversely, despite the widespread use of the phrase, “next of kin” is not defined in law. As a phrase, it is subject to widespread misconception about the legal standing that it creates or the powers that arise. However, the Mental Health Act confers no specific powers on a patient’s next of kin.

It is therefore important to identify a patient’s nearest relative and recognise the rights conferred on that person, and to remember that the nearest relative for the purposes of the Act may not be the same person as the patient’s next of kin.

Who is a patient’s nearest relative?

Under s.26 of the Act, a patient’s “relative” is defined as any of the following persons:

  • husband, wife or civil partner
  • son or daughter
  • father or mother
  • brother or sister
  • grandparent
  • grandchild
  • uncle or aunt
  • nephew or niece

This includes relationships both of the “whole blood” and the “half-blood” (i.e. with, or through, half-siblings) and also includes relationships established through adoption, but not step-relationships. It does not include the relationship of a father and illegitimate child, unless the father has parental responsibility for the child within the meaning of section 3 of the Children Act 1989.[1]

Under s.26(3), a patient’s “nearest relative” is defined as the person who comes first in list of relatives described above. Men and women take equal priority, but where two or more people come in the same place in the list, the elder or eldest takes precedence.

There are several exceptions to this general rule, which are described in detail in paragraphs 33.16 – 33.17 of the Reference Guide to the Mental Health Act. In particular, no-one under the age of 18 can be a patient’s nearest relative, unless they are the patient’s mother, father, husband, wife or civil partner (or treated as such).

The identity of the nearest relative may change over time, e.g. if the current nearest relative dies or if the patient enters into a marriage/civil partnership.

Restricted patients (including conditionally discharged patients) do not have a nearest relative for the purposes of the Act. Nor do patients remanded to hospital under section 35 or 36, nor patients subject to interim hospital orders under section 38.

As explained above, a patient’s next of kin is not defined in law. In practice, hospitals have generally recognised spouses and close blood relatives as next of kin, or alternatively a patient may nominate a person to be his next of kin. However, there are no specific rules about who can and cannot be next of kin, and a patient may nominate whomever he chooses, e.g. his partner, a member of his family or a good friend. Therefore, a person’s next of kin may well differ from their nearest relative. In some circumstances (e.g. in the case of a restricted patient), a patient may have a next of kin but not a nearest relative.

What is the role of a nearest relative?

The role of the nearest relative in respect of detained patients was identified by Maurice Kay J in R (on the application of M) v Secretary of State for Health[2] as follows:

“The nearest relative plays an important part in the scheme of the Act. He may make an application for admission 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 [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)). The manager of a psychiatric institution in which a patient is detained has 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)…[although] the right to order discharge under section 23 is limited…

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…the nearest relative may apply to [a tribunal] for the discharge of the patient pursuant to section 66…”

A patient’s nearest relative therefore has various rights conferred on him by the Act, and is entitled to be given information in respect of the patient in a variety of circumstances.

In contrast, there are no such powers conferred upon a patient’s next of kin by the Act, and neither does the Act entitle a patient’s next of kin to information about the patient. That is not to say that a patient cannot ask for information be given to his next of kin (if the next of kin differs from the nearest relative), but the next of kin will not be entitled to it.

In conclusion, a patient’s nearest relative is specifically defined in the Mental Health Act and has important rights and powers conferred upon him. In contrast, a person who has been identified or nominated as the patient’s next of kin has no powers under the Act, unless he or she is also the patient’s nearest relative.


[1] There are further caveats to this list – see s.26(4) – (7) of the Act and paragraphs 33.11 – 33.12 of the Reference Guide for full details.
[2] [2003] EWHC 1094 (Admin); [2003] MHLR 348


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.

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