Who can be the nearest relative?

Section 26 of the Mental Health Act explains who can be the nearest relative (NR). A patient can not choose their NR.

The term relative is defined by the Mental Health Act as a list. The list is below. The general rule is that the NR will be the person who comes highest on the list, however, there are other rules that may affect who the 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 two people who could be the NR, for example, mother and father, the eldest person would be the NR.

The rules that may affect who the NR will be are:

• the NR must be over 18, unless he or she is the husband, wife, civil partner or parent of the person.
• if the person normally lives with or is cared for by a relative, that person goes to the top of the list and becomes the NR.
• a relative living abroad cannot act as the NR for someone who lives in the UK. However, someone living in the UK will still be the NR if on holiday abroad. Someone who does not live in the UK can have an NR who does not live in the UK.
• permanently separated husbands, wives or civil partners, including same sex partners, cannot be the NR. Partners are also included when a couple has been living together as husband and wife or as civil partners for six months or more, unless one person in the couple is married to someone else or not permanently separated from them.
• the eldest person would be the NR if there are 2 or more people in the same category. For example a brother and sister. Full blooded relatives will be preferred over half blooded relatives. For example a sister would be preferred to half sister.
• someone other than a relative, who has been living with the person for five years or more, will be treated as if they are a relative. This means that person may become the NR, unless someone in the above list is either living with or caring for the patient. .
• 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 five 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”.

The nearest relative (NR) has certain rights under the Mental Health Act. These rights are explained below. However, the duty that healthcare professionals have to tell the NR information is not absolute. This means that in almost all cases information will not be shared with the NR if the patient does not want it to be.

• Right to get information
• Right to consultation
• Right to ask for asseement
• Right to apply for admission
• Right to discharge
• Right to get notice of discharge
• Right to delegatr the role to somone else

What happens if someone does not have a nearest relative?

The County Court can appoint someone as nearest relative (NR) if the patient does not have one. The patient can nominate someone they would like to be the NR. However it will be up to the court to decide who the most suitable person is.

The approved mental health professional (AMHP) should try to identify who the nearest relative (NR) is during a mental health assessment.

The AMHP can apply to county court if:

• it is not clear who the NR should be,
• the NR is incapable to be NR,
• they have good reason to think that the patient thinks that their NR is unsuitable, or

it is not reasonable for the patient or anyone else to apply to court.

Does everyone have a nearest relative?

No. People who are in hospital under section because they have been in contact with the police or courts may not be able to have a NR. These sections are called forensic sections. The following people will not have a NR as defined by the Mental Health Act:

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

Restricted patients are offenders, or people awaiting trials, that are in hospital awaiting mental health treatment. They are monitored by The Mental Health Casework Section on behalf of the Justice Secretary. They 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.

A patient on a section 37 without a restriction order may have an NR. However NR rights will be different.