Nearest Relative

This page looks at the role of your nearest relative. Such as who your nearest relative would be and what your nearest relative’s rights are. You may find it useful if you have a mental illness or if you care for someone who does.

Overview & Keywords

  • 'Nearest relative' is a legal term used in the Mental Health Act.
  • 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 an assessment to decide if you should be detained in hospital under the Mental Health Act.
  • 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 tell your nearest relative, next of kin or carer, information about you if you would like them to know. This is called giving consent.

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 have 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 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 did not 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.
  • 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 (s2) of the Mental Health Act: S2 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 (s3) of the Mental Health Act: S3 allows you to be admitted to hospital for treatment. It lasts for up to 6 months, but this can be renewed.

What is the Mental Health Act 1983?

The Mental Health Act 1983 is law which explains when someone with a mental disorder 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 a mentally unwell person has put their own or someone else’s health and safety at risk. 

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

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.

Is the nearest relative the same as next of kin?

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

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 as a list. The list is below. The general rule is that your NR will be the person who comes highest on the list, but there are other rules that may affect who your NR will be.

1. Husband, wife or civil partner
2. Son or daughter
3. Father or mother
4. Brother or sister
5. Grandparent
6. Grandchild
7. Uncle or aunt
8. 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, mother and father. 

What else can affect who the NR is?

Age

The NR must be 18 or over, unless he or she is your husband, wife, civil partner or parent. 

Carer

If you are cared for or you live with a relative on the above list. This relative is 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 have been living together as husband and wife or as civil partners for 6 months or more, they will become the 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 other than a relative, who has been living with you for 5 years or more, will be treated as if they are a relative. This means that this person may become your NR, unless someone in the above list is either living with or caring for you.

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.

Separated couples

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.

Half-blooded relatives

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

Step children

Step children are not treated as relatives, but can become the NR if:

  • there is 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,
  • 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. These rights are explained below.

Right to ask for 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. If social services have a reason to think that you may need to be in hospital then they can ask an approved mental health professional (AMHP) to consider your case.

The main difference between the NR making the request and someone else is that if that the team decide not to assess you, they have to tell your NR 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). 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 the factsheet which your NR can use 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 only be able to apply directly to the hospital 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 s2, s3, in an emergency or 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 complete 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 (s2) of the Mental Health Act. Your NR may not be told that you have been detained under s2 if it would have a negative effect on the 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 judgement 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 will not 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.

If you lack the mental capacity to agree to your carers being involved, the hospital will involve them if it is in your best interests. 

You can fill out an ‘advance statement’ if you would like your NR or someone else, such as your next of kin, to know information about you when you are in hospital. 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 (s3). 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 s3 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 s3 or a guardianship can’t go ahead if your NR disagrees with the decision. 

An AMHP can think about applying to County Court if they think that your NR is stopping the application for s3 or guardianship 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:

  • s2,
  • s3,
  • 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.

There is a discharge template letter at the end of this factsheet which your NR can use.

Right to get notice of discharge

Your NR should be given 7 days’ notice of the end of your section or CTO order if possible. Right to be told about: 

  • renewal of your detention,
  • extension of your CTO, and
  • transfer from one hospital to another.

Right to delegate their NR rights to someone else

Your NR can pass their NR rights to someone else. 

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

You are entitled to get support from an IMHA if you are detained under certain sections of the Mental Health Act, such as s2, s3, section 37 (s37) or 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.

Frequently asked questions.

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 you are in the community, 
  • the local authority, and private guardian, if you have one. You will have a guardian if you are under a guardianship or guardianship order.

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.

If your NR is thinking about delegating their NR rights to someone else, they could contact an approved mental health professional from the local authority for help.

How is my nearest relative appointed?

The appointment of your nearest relative (NR) wont usually involve a court, even though your NR has legal rights. Look at the heading ‘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?

If you are detained in hospital under the Mental Health Act because you have been in contact with the police or courts, you may not be able to have a nearest relative. 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.

If you are an unrestricted patient, you can have an NR.59 But some NR rights will be different, such as right to discharge. For example, if you are under section 37 you can have an NR. But you will not have an NR if you are under section 37/41.

You can find out more about forensic sections by clicking here.

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. Even if you apply to change your NR, the original NR can still report their concerns about your mental health to your local authority. The mental health team will assess you if they think that you may need to be detained in hospital.

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. 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 your NR.

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

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 yourself 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,
  • you don’t have an NR,
  • your NR is not able to act because of 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.

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.

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. 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 dangerous 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 date of the barring report. But your NR will have the right to apply to the Mental Health Tribunal for discharge if you are 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 a you may be put under if you have been involved with the police, court or prison. 

Your NR can’t apply to the hospital managers to discharge you from a guardianship order. A guardianship order is different to a guardianship.

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.

What is a mental health 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 and help during the hearing. 

When can my nearest relative apply to a tribunal?

Your nearest relative (NR) can apply to a tribunal for different reasons. They are outlined below.

Your NR can apply to a tribunal:

  • if they ordered your discharge, but it has been stopped by the responsible clinician (RC), and
  • you are on section 3 or a community treatment order (CTO).

The NR must appeal to the tribunal within 28 days of the RC stopping discharge.

Your NR can apply to a tribunal:

  • If your CTO is extended.

You can also appeal to the tribunal to change this decision.

Your NR can apply to a tribunal:

  • to get your guardianship order removed.

Your NR can apply within the first 12 months of the order and in any 12-month period that follows. You can also appeal to the tribunal to appeal this decision. 

Your NR can apply to a tribunal:

if they are displaced as your NR by a County Court on either grounds that they:

  • have made an unreasonable objection to your detention or guardianship, or
  • ordered your discharge from detention or a CTO without thinking about your welfare or other people’s welfare.

An application can be made once in the first year following displacement and once in each following year.

Your NR can apply to a tribunal:

  • to discharge you from section 37.

They can only apply between 6 and 12 months after the making of your hospital order.

They can also apply once in every following year. This does not include you if you are on a section 37/41.

If I apply to a tribunal, can my nearest relative represent me? 

You have the right to appoint someone to represent you at your tribunal. This can be a legal representative or a non-legal representative. You are entitled to have free legal representation at a tribunal, regardless of your savings or capital. 

If you would like to have both a legal representative and someone else with you, such as your nearest relative (NR), you can, as long as the tribunal agrees. This person can represent you and assist with the hearing. 

If my NR applies to the tribunal can they get representation?

They have the same right to appoint someone to represent them at their tribunal. This can be a legal representative or a non-legal representative. 

They are also entitled to get free legal aid when applying to a Mental Health Act tribunal. 

They may be entitled to get legal aid when applying to a County Court.

Key points to remember

Information sharing

Information is unlikely to be shared with your nearest relative (NR) if you don’t give your consent. 

Your NR doesn’t have any extra rights to be given information about your mental health care or treatment if you are detained under the Mental Health Act.

The hospital will still have a duty of confidentiality to you and will need your permission to share this information.

The Mental Health Act Code of Practice says that your carers should be involved with your care if you agree.


If you lack the mental capacity to agree to your carers being involved, the hospital will involve them if it is in your best interests. 

Patient decisions

Your NR doesn’t have any right to make decisions on your behalf. This includes both financial decisions and welfare decisions. A non-professional person can only make a decision on your behalf if you
have been assessed as lacking mental capacity to make the decision. And either:

  • you have made a Lasting Power of Attorney (LPA) for welfare, or
  • the Court of Protection has made someone your deputy.

Compulsory medication

You can be treated without your consent if you are under certain sections of the Mental Health Act. Your NR has no rights to stop this. For example, you may be given your medication by injection, even if you don’t want it.

Community Treatment Order (CTO)

Your NR can’t stop a CTO from being made. 

If you don’t want your NR to know that you are on CTO they may not be told. 

Your NR can order the discharge of a CTO by giving 72 hours’ notice in writing.

The Responsible Clinician can stop the discharge by issuing a ‘barring notice’.

Hospital leave, under section 17

Your NR doesn’t have a right to get hospital leave for you. 

Nearest relative removal

Your NR can be displaced if they:

  • stop you from being detained under section 3 without good reason, or
  • use their power to discharge you without thinking about your welfare and the welfare of others.

Complaints

You, or your NR, can make a complaint about treatment and care through the NHS complaints procedure.

You, or your NR, can complain to the Care Quality Commission (CQC) if you are concerned that the Mental Health Act has not been used correctly. 

Carers support and advocacy

A member of the ward staff should be able to tell your nearest relative or carer if there is a carers’ advocacy or support service that covers their area. But unfortunately, carers’ advocacy only exists in few areas. To search for services, they could try the following:

  • Use an internet search engine. Use search terms like ‘carers advocacy Leicestershire’ or ‘mental health carers advocacy Devon’
  • Ask the local council if they have a list.
  • Ask the local NHS Patient Advice and Liaison Service (PALS) if they have a list of local advocacy services.
  • Get in touch with organisations that offer advocacy such as Rethink Mental Illness, Mind, SEAP, Voiceability and POhWER.

You can find out more information about:

  • Confidentiality and information sharing by clicking here.
  • Mental capacity and mental illness by clicking here.
  • Complaints by clicking here.
  • Supporting someone with a mental illness by clicking here.


Forensic section factsheets:

  • Section 35
  • Section 36
  • Section 37
  • Section 37/41
  • Section 38
  • Section 48/49

by clicking here.

Care Quality Commission

If you have concerns or a complaint about the way the Mental Health Act has been used, you can contact the Care Quality Commission. 

Telephone: 03000 616161 - press ‘1’ to speak to the mental health team.

Address: CQC Mental Health Act, Citygate, Gallowgate, Newcastle upon Tyne, NE1 4PA

Email: enquiries@cqc.org.uk

Website: www.cqc.org.uk

 

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