Mental health law briefing 172 – Olympic briefings

As the Olympics are now fast approaching, we thought it might be of interest for a series of briefings to focus on issues that might arise in the Mental Health sphere with the influx of the thousands of spectators and athletes attending the Olympics. This is the first such briefing and others will follows over coming months.

Nearest relatives of non-UK residents

The role of the nearest relative is an important safeguard enshrined in the Mental Health Act. However, spectators, athletes or short term contract workers who are in the UK for the Olympics are likely not to be normally resident in the UK, and the same may be true of their nearest relative. How does this impact on the Mental Health Act?

An individual’s nearest relative is identified by Section 26 of the Mental Health Act. Section 26(5)(a) of the Act establishes a residency requirement for some nearest relatives: in the case of a patient who normally resides in the UK, the Channel Island or the Isle of Man, any person who would normally be the nearest relative according to the usual list set out in the Act, will be overlooked if they (the nearest relative) are not resident within these jurisdictions.

However, if a patient is not normally resident in the UK, the Act does not contain the same restrictions. Indeed the Mental Health Act Commission previously sought guidance from the Department of Health on this topic (see footnote one).

It was confirmed that the residency restrictions do not apply to the nearest relative of a non-UK (see footnote two) resident patient. Accordingly, individuals who live outside the jurisdiction can still be the nearest relative of such a patient. Tourists and newly arrived immigrants were anticipated to come most commonly within this provision, but visitors for the Olympic Games are also likely to be within this category.

Where an individual is assessed for detention under the Act, the AMHP must inform (Section 2) or consult (Section 3) the nearest relative. The caveat to that is that it must be practicable to do so or, if the application is under Section 3 or Section 7, that it is not going to cause unreasonable delay. It may well be that practicality or delay will indeed impact on discussions with overseas nearest relatives, but with mobile phone technology the impact of this in many cases will be reduced.

Hospital managers will also have a duty to take practicable steps to provide information to nearest relatives living abroad under Section 132 unless the patient objects to this or if it is impracticable to do so.

Andrew Parsons
andrew.parsons@rlb-law.com
© RadcliffesLeBrasseur
January 2012


Footnotes

[1] MHAC Policy Briefing : “Nearest Relatives of Non-UK residents”
[2] for this purpose, the UK includes the Channel Islands and Isle of Man


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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