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Nearest relative - Under the Mental Health Act

Nearest relative

Under the Mental Health Act

This section looks at the role of your nearest relative. Such as who your nearest relative would be and what your nearest relative’s rights are. This information is for adults affected by mental illness in England. It’s also for their loved ones and carers and anyone interested in this subject.

If you would like more advice or information you can contact our Advice and Information Service by clicking here.

Download Nearest relative - Under the Mental Health Act factsheet

Overview

‘Nearest relative’ is a legal term used in the Mental Health Act 1983.
Your nearest relative will have some legal rights. Most of these rights can only be used if you are detained in hospital under the Mental Health Act. This is sometimes called ‘being sectioned.’
Nearest relative is not the same as the next of kin. The next of kin has no rights under the Mental Health Act.
Your nearest relative can ask for a Mental Health Act assessment. This will decide if you should be detained in hospital.
Your nearest relative can apply to discharge you from the Mental Health Act.
An application can be made to the County Court to have your nearest relative removed or changed.
The nearest relative does not have the right to be told everything about you. This could include information about what treatment you are having.
Health professionals should not tell your nearest relative, next of kin or carer, information about you. If you would like them to know, this is called giving consent.

Key words

Some information in this factsheet is quite complicated. This section explains some of the phrases and words used:

Approved mental health professional (AMHP): An AMHP is a mental health professional who is trained to use the Mental Health Act. They can be a psychologist, nurse, social worker, or occupational therapist. They help to decide if you should be detained under the Mental Health Act. The role of the AMHP is to give a social, rather than a medical opinion. Even if they have a medical background. An AMHP can help to bring you to hospital.

Community Treatment Order (CTO): You can get a community treatment order (CTO) if you’ve been in hospital under certain sections of the Mental Health Act. Your responsible clinician can arrange it. A CTO means you will have supervised treatment when you leave hospital. You will still be under the Mental Health Act.

You will have to follow conditions if you are on a CTO. These conditions should help you stay well. If you break the conditions of your CTO you can be brought back to hospital.

Guardianship: On a guardianship you can get the treatment that you need in the community with the help of a guardian. If you don’t have a guardian, it is likely that you would have to remain in hospital to get treatment. Your guardian may be your local authority or someone else approved by the local authority.

Hospital Managers: Hospital Managers make sure that the Mental Health Act is properly used. For example, making sure that information is given to you and your nearest relative. They can also hold a hearing to decide if you should be detained or discharged.

Independent Mental Health Advocate (IMHA): IMHA’s are independent of other hospital staff. This means that they do not work for the NHS. An IMHA can explain your rights and help you to make decisions about your care and treatment. You have a legal right to see an IMHA if you are detained under the Mental Health Act.

Section 17 leave: Any leave away from the ward has to be authorised by a doctor. This is known as ‘section 17 leave’. When you are detained under the Mental Health Act you are not allowed to leave the ward freely. Leave may be increased gradually over a number of weeks.

Responsible Clinician (RC): The RC is the professional who is responsible for your care and treatment.

Section 2 of the Mental Health Act: Section 2 allows you to be admitted to hospital for an assessment of your mental health. And to get any necessary treatment. It lasts for a maximum of 28 days and can’t be renewed. If you need to stay in hospital after 28 days, you will be transferred to a section 3.

Section 3 of the Mental Health Act: Section 3 allows you to be admitted to hospital for treatment. It lasts for up to 6 months, but this can be renewed.

You can find out more information on www.rethink.org about:

Community Treatment Order by clicking here.
Mental Health Act by clicking here.
Advocacy by clicking here.

What is the Mental Health Act 1983?

The Mental Health Act 1983 is law. It explains when someone with mental health difficulties can be placed in hospital for a mental health assessment and treatment. This is often known as ‘being detained’ or ‘being sectioned.’

The Mental Health Act is only used when someone with mental health difficulties have put their own or someone else’s safety at risk. And they are unwilling to get help for their mental health problems.

You can find out more about the ‘Mental Health Act’ by clicking here.

Need more advice?

If you need more advice or information you can contact our Advice and Information Service.

What is a Nearest Relative?

What is the nearest relative?

The Nearest Relative (NR) is a legal term in the Mental Health Act. The law explains who your NR will be. The NR has certain rights under the Mental Health Act.

The NR will have rights to information that other relatives will not have the right to. These rights are not fixed. There may be reasons when the NR rights are not fully met.

The relative who is not the NR will only be allowed to know information about you with your consent.

All relatives can share any information or concerns they have with the hospital staff.

See further down this page, ‘What are the nearest relative’s rights?’ for more information.

Is the nearest relative the same as next of kin?

Your next of kin has no legal powers under the Mental Health Act.

Your nearest relative (NR) and the ‘next of kin’ can be 2 different people. Or the same person.

You will choose your next of kin if you are admitted to hospital. Your next of kin can be anyone you want. This would usually be a relative or close friend.

You can’t choose your nearest relative. But professionals should aim to identify anyone involved in your care as well as your nearest relative.

Anyone involved with your care should be included in discussions about you. As long as you want them to be included.

Who is my Nearest Relative?

Who is my nearest relative?

Section 26 of the Mental Health Act explains who can be your nearest relative (NR). You can’t choose your NR.

The term ‘relative’ is defined by the Mental Health Act in a list. The list is below. The general rule is that your NR will be the person who comes highest on the list. There are other rules that may affect who your NR will be.

Husband, wife or civil partner
Son or daughter
Father or mother
Brother or sister
Grandparent
Grandchild
Uncle or aunt
Niece or nephew

Men and women are equal. If there are 2 people who could be the NR, the eldest person would be the NR. For example, if your father is older than your mother, then your father would be your NR.

What else can affect who the NR is?

How does being a carer affect being a NR?
If you’re a carer for or you live with a relative on the above list, they are likely to become your NR.

Living arrangements

If you normally live with a relative on the above list, this relative is likely to become your NR.
If you’ve been living together as husband and wife or civil partners for 6 months or more, they’ll become your NR. This includes your girlfriend or boyfriend. But if you or your partner are married to someone else, your partner can’t be your NR. Unless you or your partner are permanently separated from them.
Someone who isn’t a relative can be treated as a relative. But if they have been living with you for 5 years or more they may become your NR. But only if no-one in the above list is able to act as your NR.
A relative living abroad can’t act as your NR if you live in the UK. They can still be your NR if they live in the UK but have gone on holiday abroad.
If you don’t live in the UK, you can have an NR who doesn’t live in the UK. For example, if you are detained whilst visiting England on holiday.

How does age affect being a NR?
The NR must be 18 or over, unless he or she is your husband, wife, civil partner or parent.

What happens if I am separated from my partner?

If you are permanently separated from your husband, wife or civil partner they can’t be your NR.
If you have deserted, or been deserted by, your husband, wife or civil partner they can’t be your NR. Desertion means that one party has left the marriage or partnership without the other’s agreement.

Can half-blooded relatives be a NR?
Full blooded relatives will be preferred to half-blooded relatives. For example a sister would be preferred to half-sister.

Can stepchildren be a NR?
Stepchildren are not treated as relatives, but can become the NR if:

There’s no other NR and they normally live with the person and have done so for at least 5 years, or
a court decides that they should be the NR, or
the current NR asks them to be the NR and they agree, this is known as ‘delegating’.

Rights

What are my nearest relative’s rights?

Your nearest relative (NR) has certain rights under the Mental Health Act.

Your NR has the right to:

ask for a Mental Health Act assessment
apply to the hospital managers for admission to hospital
get certain information
be consulted by the approved mental health professional (AMHP)
ask for you to be discharged
get notice of your discharge from the hospital
delegate their NR rights to someone else
be told about renewal of your detention, extension of your CTO, and if you’re being transferred from one hospital to another
contact the Independent Mental Health Advocacy service (IMHA)

Your NR’s rights are explained in more detail below.

Right to ask for a Mental Health Act assessment

Your NR can ask social services to assess your mental health. Social services have a duty to consider your mental health if your NR asks them to. Some families have found this right helpful in a crisis.

But anyone can request that your mental health is assessed if they are concerned about you. Social services can ask an approved mental health professional (AMHP) to consider your case. This is only if they have reason to think that you may need to be in hospital.

If your NR requests an assessment they have more rights over someone else making the request. If the team decides not to assess you, they have to tell your NR why. They have to put the reasons for their decision in writing.

Your NR can ask for a mental health assessment through your local social services. They will need to speak to the approved mental health professional (AMHP) team. The AMHP on duty will take your NR’s request to assess you and present it to the mental health team.

Your NR can make their request in writing or over the phone. There is a sample letter at the end of this factsheet. Your NR can use the letter to ask for a mental health assessment.

Right to apply to the hospital managers for admission to hospital

Your NR should ask adult social services to assess you before applying to the hospital managers. Your NR may be able to apply directly to the hospital managers to have you detained. This is if 2 doctors agree that you should be detained but the AMHP disagrees.

Your NR can make an application to the hospital managers to detain you under section 2 or section 3, in an emergency. Or your NR can ask for a guardianship. They must have seen you within 14 days of the application.

Your NR must have seen you in 24 hours to make an emergency application.

Your NR will need to use specific wording to make an application to admit you to hospital. Follow the link to see the wording:
www.legislation.gov.uk/uksi/2008/1184/schedules/made.

Right to get certain information

The approved mental health professional (AMHP) must let your NR know if an application is going to be made or has been made to detain you under section 2 of the Mental Health Act.

Your NR may not be told that you’ve been detained under section 2 if it would have a negative effect on you.

Negative effect could mean:

emotional distress,
mental health getting worse,
physical harm,
financial or other exploitation.

The AMHP should tell your NR what rights they have to discharge you.

Hospital Managers should give your NR copies of any information given to you in writing about your rights.

You can block information from being given to your NR. Even if your judgment or reasoning has been affected by symptoms of mental illness. The duty that healthcare professionals have to tell your NR information is not absolute. This means that in almost all cases, information won’t be shared with your NR if you don’t want it to be. Your NR doesn’t have a right to know about your diagnosis, treatment or care.

Your clinicians can involve your carers if you lack mental capacity. They will only do this if they feel it is in your best interest.

You can fill out an ‘advance statement’ saying what you would like to happen if you lack mental capacity. This can include wanting information shared with your NR, or next of kin. This is only when you are in hospital under the Mental health act. An advance statement will help health professionals to understand your wishes. An advance statement is made at a time when you are well.

Right to consultation

The AMHP must consult with your NR before you can be detained for treatment under section 3. Or guardianship. Consult means that the AMHP must speak to your NR. The only time that an AMHP doesn’t have to consult your NR is:

if it is not reasonably practical to. For example, your NR can’t be found quick enough which could cause your treatment to be delayed, or
your NR is having difficulty with their own health or mental capacity.

Your NR may not be consulted about an application for detention under section 3. This is if they feel if it would have a negative effect on you. AMHP’s should record their reasons if they do not consult with your NR.

Detention under section 3 or a guardianship can’t go ahead if your NR disagrees with the decision. An AMHP can apply to County Court if they think that your NR is stopping the application on unreasonable grounds.

A County Court can remove your NR and give the NR duty to someone else. This is known as ‘displacement’.

Your NR can’t stop a community treatment order (CTO), or a section 2 from being made.

Right to discharge

Your NR can discharge you from detention under:

section 2,
section 3,
a community treatment order (CTO), or
guardianship.

Your responsible clinician is able to stop the discharge in certain circumstances. But your responsible clinician has no power to stop your NR discharging you from guardianship.

Your NR must be told of your discharge from detention or CTO. But your NR may not be told if:

it is not practicable to tell your NR, or
either you or your NR has requested that information about the discharge should not be given.

See further down this page, ‘Can my nearest relative discharge me from the Mental Health Act?’ for more information.

There is a discharge template letter which your NR can use. You can download it using the link at the top of this page.

Right to get notice of discharge

Your NR should be given 7 days’ notice of the end of your section or community treatment order (CTO) order if possible.

Right to be told about:

the renewal of your detention,
extension of your community treatment order (CTO), and
if you are transferred from one hospital to another.

Right to delegate their NR rights to someone else

Your NR can pass their NR rights to someone else.

See further down this page, ‘What happens if someone doesn’t want to be my NR?’ for more information.

Right to contact the Independent Mental Health Advocacy service (IMHA)

You are entitled to get support from an IMHA when you’re detained under certain sections of the Mental Health Act. Such as section 2, section 3, section 37 or community treatment order (CTO). You do not have to have help from an IMHA if you don’t want it.

You can ask for an IMHA yourself or your NR has the right to ask for an IMHA for you.

An IMHA should visit and talk to you if your NR asks them to.

An IMHA can:

help you to understand what your rights are whilst under the Mental Health Act,
talk to staff on your behalf if you want them to, and
help healthcare professionals to understand any concerns that you have.

You can get help from an IMHA and solicitor at the same time.

You can find out more about:

Advocacy by clicking here.
Planning your care - Advance statements by clicking here.

Where can I get further information?

The Equality and Human Rights Commission have published guides on your rights when detained under the Mental Health Act in England. They explain your rights and some of your Nearest Relative’s rights too.

You can download free copies of the guides here: www.equalityhumanrights.com/en/publication-download/your-rights-when-detained-under-mental-health-act-england

Further issues

What happens if someone doesn’t want to be my nearest relative?

Your nearest relative (NR) can pass their rights to another person. This person doesn’t have to be a relative. But they need to agree to be your NR. This is known as ‘delegating’. Your NR can’t delegate their rights to you.

If your NR decides to delegate, they would need to tell the following people in writing:

you,
the hospital managers if you are under section or a community treatment order. Or where you are most likely to be detained and if you are currently in the community, and
the local authority, and private guardian, if you have one. You will have a guardian if you are under a guardianship or guardianship order.

Your NR can use the sample letter to delegate their NR rights to someone else. You will find the letter in the download of this page using the link at the top of the page.

NR’s can delegate their functions at any time, even if they have made a request. Such as an admission to hospital. Your NR can change their mind at any time and take back the delegation. This means that they will be your NR again.

Your NR could contact an approved mental health professional from the local authority for help. If they are thinking of delegating their NR rights to someone else.

How is my nearest relative appointed?

The appointment of your nearest relative (NR) won’t usually involve a court, even though your NR has legal rights. Look at the previous section ‘Who is my nearest relative’ for more information.

The approved mental health professional (AMHP) should try to identify who your NR is during your mental health assessment. It can sometimes be difficult to work out who your NR is. The legislation recognises these difficulties. Usually professionals will inform, notify and consult the person who they think is your NR.

The County Court can appoint an NR if you don’t have one. You can say who you would like to be your NR. But the court will decide who the most suitable person is.

The AMHP can apply to County Court if:

it is not clear who your NR should be,
your NR is incapable of being your NR,
the AMHP has a good reason to think that your NR is unsuitable, or
it is not reasonable for you or anyone else to apply to court.

Does everyone have a nearest relative?

Not everyone detained under the Mental Health Act will have a NR. This may be the case if you are on a Forensic section. If you’ve been in contact with the police or courts before you were detained you may be on a forensic section. These sections of the Mental Health Act are called forensic sections.

The following people will not have an NR as defined by the Mental Health Act:

patients remanded to hospital by the courts under sections 35 or 36, and
patients subject to interim hospital orders under section 38, and
restricted patients.

What is a restricted patient?
If you have a section 41 or 49 after your section, this means that you are a restricted patient. Restricted patients are monitored by The Mental Health Casework Section on behalf of the Justice Secretary. They will be offenders, or people awaiting trial, and who are in hospital because of their mental health.

Restricted patients have extra restrictions given to them because they may be a risk to the public. These restrictions include:

permission for community leave,
transfer to another hospital,
discharge, and
recall to hospital.

You can find out more about forensic sections at www.rethink.org. Or call our General Enquiries team on 0121 522 7007 and ask them to send you a copy of our factsheet. You can see a list of our forensic section factsheets at the bottom of this page.

Can my nearest relative be removed?

If your nearest relative (NR) is not a suitable person an application can be made to the County Court to remove them. This is known as ‘displacement’.

You can suggest a more suitable person to the court. But the court could decide to keep your original NR in place. The court will decide to appoint the most suitable person as the NR.

An application to displace your NR can be made by any of these people:

you,
your advocate or carer if you lack mental capacity,
any of your relatives,
anyone who you are living with,
anyone you were living with before going into hospital, or
an approved mental health professional (AMHP).

Will people stop assessing me for detention in hospital if I displace my NR?

Probably not. If you apply to change your NR, they can still report their concerns about your mental health to your local authority or to your mental health team.

The mental health team will assess you if they think that you may need to be detained in hospital.

See the previous section, ‘Right to ask for an assessment’ for more information.

I want to change my NR. How do I do this?

If you are in hospital, you will have to make an application to County Court where the hospital is. You will need to fill in a N208 form to apply to remove your nearest relative.

The form can be found on the link below:
www.gov.uk/government/publications/form-n208-claim-form-cpr-part-8

There may be a court cost to submit your application.

You will only be able to apply to have your NR removed for the following reasons:

your NR isn’t fit to be your NR because they have a mental illness or other illness,
your NR has stopped an application being made for you to be in hospital without good reason,
your NR has stopped a guardianship application without good reason,
your NR has used their right to discharge you without thinking about your welfare and other people’s welfare, or
your NR is not a suitable person to act as your NR. This may be because that they are not acting in your best interests.

But remember the court can keep your current NR in place if they think they are the right person for the role.

Should I get legal advice?
If you would like to displace your own NR we advise you to get legal advice from a mental health solicitor.

You don’t need a solicitor to represent you in County Court, you can represent yourself. If you would like legal representation you may qualify for legal aid. Legal aid may not cover all of the court costs.

Follow this link to find out if you qualify for legal aid:

www.gov.uk/legal-aid/eligibility

When will an approved mental health professional apply to remove my nearest relative?

An approved mental health professional (AMHP) can apply to the County Court to ‘displace’ or remove your NR. The county court will decide if your NR should be removed. An AMHP will only make an application if they believe that:

it is not reasonable for you or anyone else to apply to court,
you should be detained in hospital under section 3, or should become a guardianship patient, but your NR disagrees without good reason,
the NR is likely to discharge you from detention, or guardianship without thought for your welfare or other people’s welfare,
your NR is not able to act because of themselves having a mental disorder or other illness, or
your NR is not a suitable person.

It is the AMHP’s decision to apply to the County Court to displace your NR.

You can find out more about ‘Legal advice’ by clicking here.

What happens if my nearest relative is removed?

If your NR is removed, the County Court can choose who will act as your NR.

Displacement of your NR usually lasts for a certain length of time. This can depend on what section you are under.

Your NR can apply to the First Tier Tribunal if they have been displaced by the County Court. An application can be made once in the first year following displacement. And once in each following year.

Discharge

Can my nearest relative discharge me from the Mental Health Act?

Your nearest relative (NR) can make an order to discharge you from hospital.

Your NR must give the hospital managers 72 hours written notice if they want to discharge you from a section of the Mental Health Act. This includes discharge from a community treatment order (CTO) and guardianship.

There is not a specific form that your NR needs to fill in to discharge you. But there is a template letter that can be downloaded using the factsheet download at the top of this page.

If your responsible clinician (RC) thinks that you should not be discharged they can issue a ‘barring report’ within 72 hours. This will stop the discharge. Your RC should not stop you being discharged unless you are likely to be at risk to yourself or other people.

Your NR will not be able to discharge you from detention at any time in the 6 months that follow the barring report.

But your NR will have the right to apply to the Mental Health Tribunal for discharge if you’re detained under section 3 or CTO.

Your NR does not have a right to discharge you if you are detained in hospital under a forensic section. A forensic section is a section that you may be put under if you have been involved with the police, court or prison.

A guardianship order is different to a guardianship. Your NR can’t apply to the hospital managers to discharge you from a guardianship order. A guardianship order is used by a court as an alternative to a hospital order for offenders with mental disorders. But your NR can apply to the First Tier Tribunal instead.

You can find out more about forensic sections at www.rethink.org. Or call our General Enquiries team on 0121 522 7007 and ask them to send you a copy of our factsheets. There is a list of forensic sections at the bottom of this page.

Tribunal

What is the First Tier Tribunal?

The First Tier Tribunal is an independent panel that can discharge you from the Mental Health Act. It can also be called a Mental Health Tribunal. The tribunal hearings take place at the hospital. The tribunal has to decide if you meet the criteria for being sectioned.

The tribunal is an independent panel made up of a judge, tribunal doctor and a mental health expert.

The tribunal can recommend that decisions that have been made about you, or your Nearest Relative (NR), are changed. They can also make recommendations about your care. Including if you should be discharged from hospital, given leave from hospital or be placed on a CTO. But they can’t make recommendations about your treatment.

You can make your own application to apply to a tribunal. Your NR can make their own application too in some situations.

An independent mental health advocate (IMHA) and solicitor will be able to help you apply for a hearing. They can also help you during the hearing.