3.5 Appointment or Displacement of the Nearest Relative

1. Summary

The aim of this policy is to ensure awareness of the rights and function of the nearest relative within the Mental Health Act 1983 (MHA). It outlines the circumstances in which it is appropriate for an acting nearest relative to be appointed or have the delegated authority and the process for doing so.

It provides guidance on action which may be taken when the nearest relative cannot be identified or contacted and will confirm the steps to be taken when there is a need to change a persons’ nearest relative. The need for change may come about because the nearest relative is deemed to be unsuitable or unable to act as such, the identified nearest relative wishes to delegate their function to another person, or the person does not have an identified nearest relative.

This guidance has been produced with reference to Chapter 5 ‘The Nearest Relative’ contained in the Mental Health Act 1983 Code of Practice.

2. Introduction

Any course of action taken under the MHA must be undertaken with due consideration to the Guiding Principles.

The Guiding Principles are:

• Purpose Principle: Decisions about care and treatment should be appropriate to the person, with clear therapeutic aims, promote recovery and should be performed to current national guidelines and best practice guidelines;
• Least Restrictive Principle: Where it is possible to treat someone without detaining them, they should not be detained. Wherever possible, the person’s independence should be encouraged and supported with a focus on promoting recovery;
• Respect Principle: People, their families and carers should be treated with respect and dignity and listened to by professionals;
• Empowerment and Involvement Principle: People should be fully involved in decisions about care, support and treatment. The views of families, carers and others, where appropriate should be fully considered. Where decisions are taken which are contrary to views expressed, professionals should explain the reason for this;
• Efficiency and Equity Principle: All organisations should work together to ensure that the quality of commissioning and provision of mental healthcare services is high and are given the same priority as physical health or social care services. Everyone should work together to facilitate timely, safe and supportive discharges from detention.

Relatives have an important role to play in the assessment, treatment and care of people, which includes treatment under the MHA. It is important to remember that the nearest relative for the purposes of the Act may not be the same as the person’s next of kin. The identity of the nearest relative may also change with the passage of time, for example if the person enters into a marriage or civil partnership.

The nearest relative has legal rights and responsibilities under the Act, and provides additional safeguards to help ensure that the compulsory powers of the Act are used appropriately. The definition of a nearest relative is contained in Section 26 of the Act. Defining the nearest relative can be complex and should be undertaken by an Approved Mental Health Professional (AMHP) or someone who has experience of the Act.

3. Duties of the Approved Mental Health Professional in relation to the Nearest Relative

It is the duty of the AMHP to identify the person who appears to be the nearest relative in accordance with section 26 of the MHA, as part of the assessment for detention under the Act.

The AMHP has a duty to inform the nearest relative of the application for detention under section 2, and must consult with the nearest relative in relation to an application under section 3 of the MHA, unless it is not practicable to do so, or the nearest relative has not been identified.

Before concluding that it has not been practicable to consult, the AMHP must take all reasonable steps to do so which means that both serious and genuine efforts must be made. The test of ‘all reasonable steps’ is high but examples include cases where, following extensive enquiry, it has not been possible to trace or contact the nearest relative or where doing so would place the person at high risk of harm. In DP v South Tyneside July 2011, the person had made allegations that her family had tried to force her to marry against her will and that her life had been at risk for refusing. She subsequently went to live in a women’s refuge. When she was later detained under section 3, the AMHP concluded that it was not practicable to consult her nearest relative as to do so would alert her family to her whereabouts and place her at risk of harm. The court upheld this decision.

There have been cases where people have claimed that to share information about their medical condition and personal circumstances with their nearest relative without their consent is a breach of their human rights under Article 8 – the right to respect for their private life. However, the courts thus far have held that as the right under Article 8 is a qualified right, it is overridden by their right under Article 5 of the Human Rights Act not to be unlawfully detained ‘except in accordance with the law’ and the law requires that the nearest relative be consulted wherever practicable.

The consultation has two purposes. Good consultation will provide the AMHP with information to assist with the decision whether or not to detain the person under section 3. The second is to inform the nearest relative of their rights under the Act, including their right to object. For an objection to be valid, it only needs to be stated by the nearest relative. The AMHP should keep a record of the consultation and provide the nearest relative with the leaflet setting out their rights. A copy of this leaflet is included at Appendix A.

The AMHP Duty Team must monitor the appointment / displacement of nearest relatives for people detained by the Humber Trust. This will include keeping electronic records up to date.

4. Identification of the Nearest Relative

Section 26 of the Act defines ‘relative’ and ‘nearest relative’. It is important to remember that the nearest relative may not be the same person as the patient’s next of kin. The identity of the nearest relative may also change with the passage of time, for example if the person enters into a marriage or civil partnership.

The Act provides a ‘hierarchy’ of relationships for the purpose of ascertaining the nearest relative, and generally speaking, the person first described in the list is the nearest relative. There are some caveats however. These are that:

1. any relationship of the half blood is treated as a relationship of the whole blood unless there is more than one person in the same relationship group, in which case relatives of the whole blood take priority;
2. if the person’s parents are not married, the father is only considered if he gained parental responsibility within the meaning of the Children’s Act 1989;
3. if there is more than one person in the same relationship group, the elder takes priority;
4. if the person is ordinarily resident with a relative, that person takes priority over everyone else. If the person lives with more than one relative, then that group of people take priority. The nearest relative is ascertained by applying the hierarchical list of relatives to that priority group;if the person has a husband, wife or civil partner from whom they are separated, or if any relative is under 18, they are excluded;
5. if the person has been living with someone as if they were husband and wife or civil partners for more than six months, that person will be treated as if they were the husband, wife or civil partner;
6. if the person has been living with a friend for more than five years, that friend can be considered as if they were a relative. Because they are then a ‘relative who ordinarily resides with the person’, they become the nearest relative unless there is someone else living in the same household who appears higher up on the hierarchy;
7. adopted relatives are included as if they were blood relatives, step-relatives are excluded.

The hierarchy of relationships is as follows:

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. nephew or niece.

People remanded to hospital under sections 35 and 36 of the Act and people subject to interim hospital orders under section 38 do not have nearest relatives (as defined by the Act). Nor do people subject to special restrictions under Part 3 of the Act (restricted patients).

The nearest relative will be identified at the time of detention by the AMHP. If any member of staff is made aware of information that may change the nearest relative, this information must be passed to the Duty AMHP team who will ascertain if the nearest relative has changed. A change in circumstances such as a child reaching the age of 18 years, a death of a relative or separation from a spouse may result in a change in nearest relative.

The Department of Health and Social Care have produced a leaflet regarding the nearest relative which covers many of the issues discussed in this policy (see Appendix A). This leaflet is to be given to the person and their nearest relative at the intervals specified.

5. Rights of the Nearest Relative

The MHA gives specific legal powers in connection with the person’s care and treatment. These things are called the nearest relative’s ‘rights’. They are as follows:

• the right to ask for the person to be detained or put on guardianship;
• the right to ask for an approved mental health professional to see the person;
• the right to be told about the person’s detention or guardianship;
• the right to be given information;
• the right to be told if the person is to be discharged;
• the right to discharge the person;
• the right to apply to the Tribunal for the person to be discharged (limited
  rights of appeal to the Tribunal).

These rights are identified in the patient information leaflet ‘Your Nearest Relative under the Mental Health Act 1983’ (see Appendix A).

6. Delegation of Nearest Relative Functions

A nearest relative is not obliged to act as such. They can authorise, in writing, another person to perform the functions of the nearest relative on their behalf. The procedure for doing this is set out in the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008.

If the nearest relative does wish to nominate someone else, the AMHP should discuss the process with them. The nearest relative should be encouraged to inform the person of their decision and the reasons for it, if at all possible.

The person who the nearest relative wishes to delegate their functions to must be willing to take on this responsibility and this agreement must be confirmed in writing. If there is no one willing and able to discharge the functions of the nearest relative, an application should be made to the County Court for the appointment of someone to carry out these functions in the same way as if the person had no one.

The nearest relative must inform the person that they want to delegate the functions to someone else and they must notify the hospital at which the person is, or is likely to be detained. If the person is subject to a guardianship order, the local authority must also be notified.

7. No Nearest Relative

When assessing someone, particularly if the assessment is for possible detention or guardianship under the Act, if the AMHP finds that the person appears to have no nearest relative, they have a duty to advise the person of their right to apply to the County Court for the appointment of someone to act as their nearest relative. An application for compulsory admission can proceed without informing or consulting the nearest relative if either of the two following criteria is met:

• it is not practicable for the AMHP to obtain sufficient information to establish the identity or location of the nearest relative or where to do so would require an excessive amount of investigation involving unreasonable delay;
• consultation is not possible because of the nearest relative’s own health or mental capacity.

However, consultation with the nearest relative is a significant safeguard for people and a decision to proceed without consultation should not be taken lightly. If consultation does not take place, the AMHP must record their reasons for this carefully.

The person must also be advised of their right to apply to the court to displace their nearest relative and appoint another if they believe their nearest relative is unsuitable. The grounds for displacement are the same as for an AMHP applying to displace, and are covered in more detail in Section 8 below. The AMHP must record on their MHA Assessment form that the patient has been informed of these rights and given any assistance that may be required. If the person lacks capacity, the AMHP must consider applying to the court on their behalf.

8. Displacement of Nearest Relative

A nearest relative can be displaced and an acting nearest relative appointed by the County Court on the grounds that:

• the nearest relative is incapable of acting as such because of illness or mental disorder;
• he nearest relative has objected unreasonably to an application for admission for treatment or a guardianship application;
• the nearest relative has exercised the power to discharge a patient without due regard to the patient’s health or wellbeing or the safety of the public;
• the nearest relative is otherwise not a suitable person to act as such;
• the patient has no nearest relative within the meaning of the Act, or it is not reasonably practicable to ascertain whether the patient has a nearest relative or who that nearest relative is.
  The effect of a court order appointing an acting nearest relative is to displace the person who would otherwise be the patient’s nearest relative. However, as an alternative to an order by the court, it may sometimes be enough for the actual nearest relative to delegate their role to someone else (see Section 6, Delegation of Nearest Relative Functions).

An application to displace the nearest relative and appoint an acting nearest relative may be made by:

• the person;
• any relative of the person;
• anyone with whom the person is residing (or was residing prior to admission);
• an AMHP.

If the person wishes to apply to the County Court to displace or appoint a nearest relative, the ward staff should contact the AMHP team and advise the person to seek legal advice. They must be informed of their right to have a litigation friend – someone who can act on their behalf during court proceedings. The AMHP will then talk to the person about the grounds on which they can apply to court. The AMHP will not be expected to make the application, but may do so in exceptional circumstances.

AMHPs will need to consider making an application for displacement or appointment if:

• they believe that someone should be detained in hospital under section 3 of the Act, or should become a guardianship patient, but the nearest relative objects unreasonably;
• they believe that the nearest relative is likely to discharge a patient from detention or guardianship unwisely;
• the person has no identifiable nearest relative or their nearest relative is incapable of acting as such;
• they have good reasons to think that the person considers their nearest relative unsuitable and would like them to be replaced and it would not be reasonable in the circumstances to expect them, or anyone else, to make an application.

AMHPs should bear in mind that some people may wish to apply to displace their nearest relative but may be deterred from doing so by the need to apply to the County Court. The AMHP should talk this over with the person and try to empower them to make an informed decision on whether or not to apply. The person may also wish to discuss the issue with an Independent Mental Health Advocate.

It is entirely a matter for the court to decide what constitutes “suitability” of a person to be a nearest relative. But when deciding whether to make an application to displace a nearest relative on grounds of unsuitability, and when providing evidence in connection with an application, the AMHP should consider the following factors:

• whether there is any reason to think that the person has suffered or is at risk of suffering abuse at the hands of the nearest relative (or someone with whom the nearest relative is in a relationship);
• whether the person appears to be afraid of the nearest relative or seriously distressed by the possibility of the nearest relative being involved in their life or their care
  o If the person and their nearest relative are unknown to each other, there is only a distant relationship between them, or their relationship has broken down irretrievably.
  This is not an exhaustive list.

Unless the person wishes to displace their nearest relative and has asked for help to do so, the decision to make an application lies with the AMHP personally. As part of the decision process AMHPs should discuss the consideration of displacement with the person’s clinical team. A record of the reasons for the decision should be recorded in the person’s notes.
Before making an application for displacement, AMHPs should consider other ways of achieving the same end, including:

• whether the nearest relative will agree to delegate their role as the person’s nearest relative to someone else;
• providing or arranging support for the person (or someone else) to make an application themselves. This could include support from an independent mental health advocate.

Before an AMHP decides to make an application they must consult with the Principal Social Worker (Mental Health) and obtain any necessary legal advice and support. It is preferable to conclude the process of displacing the nearest relative and appointing another prior to commencing proceedings under section 3 to detain someone for treatment, but it is not essential. It is lawful to detain someone under section 3 while proceedings regarding the nearest relative are ongoing, provided that an interim order has been granted.

9. Making an Application

People making an application to the County Court will need to provide the court with the facts that will help it make a decision on the application. Form n208-eng must be used for this purpose and Hull City Council Legal Section must be consulted. Exactly what will be required will depend on the type of application and the specific circumstances of the case.

When applying to displace a nearest relative, AMHPs should nominate someone to become the acting nearest relative in the event that the application is successful. Wherever practicable, they should first consult the people involved (the person and their proposed nominee) to obtain their views and discuss any concerns they have. Agreement should be obtained in writing.

If there are any concerns that information given to the court about the suitability of the nearest relative has implications for the person’s own safety, an application can be made to the court seeking its permission not to make the current nearest relative a party to the proceedings. The reasons for concern must be set out clearly in the application.

Hospital managers (via the clinical team) should provide support to detained people to enable them to attend the court, if they wish, subject to the person being granted leave under Section 17.

If, exceptionally, the court decides to interview the person (as the applicant), the court has the discretion to decide where and how this interview may take place and whether it should take place in the presence of, or separate from, other parties.

If the court decides that the nearest relative should be displaced and finds the proposed replacement to be suitable, and that person is willing to act as nearest relative, then the court will appoint them.

10. The Effect of the Order

If the order is granted then the rights of the nearest relative are transferred to the person acting as nearest relative. This could be a person who in the opinion of the Court is a proper person to act as a nearest relative and is willing to do so, or it could be the local authority.

If Hull City Council is appointed to act as nearest relative then those responsibilities are delegated to the City Manager who will ensure that an appropriate Social Worker is allocated to undertake the necessary duties.

If the functions of the nearest relative are transferred to the local authority, the authority acquires additional duties. If the adult is admitted to any hospital or nursing home the authority must in accordance with Section 116 of the Care Act arrange for them to be visited whilst in hospital or the nursing home in the same way that a parent would be expected to visit a child in similar circumstances.

A copy of the order must be given to the patient, and the duration of the order should be highlighted. A copy will also be placed on the patient notes.

A displaced nearest relative has the right to make an application to the Mental Health Tribunal once during the period of 12 months starting with the day of the court’s order; and subsequently once in each 12 month period for which the order is in force. This applies to those displaced on the following grounds:

• have unreasonably objected to an application for admission for treatment or a guardianship order; or
• have exercised, or are likely to exercise, their power of discharge without due regard to the welfare of the patient or the interests of public safety.

11. The Duration of the Order

Orders made for different reasons have different lengths of duration. An order made on the grounds of the unreasonable objection by the nearest relative to an application to detain someone or because the nearest relative has attempted to use their power to discharge someone without reasonable regard for their safety or the safety of others will be in force for three months starting with the date of the order, or until the person has been discharged from detention. If the person has been discharged from detention onto a supervised community treatment order or has been transferred into guardianship, the three month timescale still applies.
If an order has been granted because the person has no nearest relative or because their nearest relative is either incapacitated or unsuitable, it will either run indefinitely, or until any date which has been specified in the order.

12. Discharge of the Order

The order can be discharged by an application to the County Court. The application can be made by:

• the person appointed as the acting nearest relative by the order;
• the actual nearest relative if the order was originally made under Section 29(3) (a) ‘no nearest relative’ and it is discovered that person actually does have a nearest relative;
• the previously displaced nearest relative if the order was made under Section 29(3) (b) ‘nearest relative incapable of acting’ and the displaced nearest relative subsequently becomes capable of acting as such;
  a ‘new’ nearest relative if it transpires that the person who was the nearest relative at the time of the order is no longer the nearest relative.

13. Variation of the Order

Section 30(2) of the Act allows for the order to be varied. An application can be made by:

• the person appointed as the nearest relative by the order;
• an AMHP.

Upon receipt of the application, the County Court can vary the order and substitute a new nearest relative who could be the local Social Services Authority or any other person who in the opinion of the Court is able to exercise the functions of the nearest relative and is willing to do so.

If the person who is a nearest relative by virtue of an order under Section 29 dies then in accordance with Section 30(3) the duties of the nearest relative cannot be exercised by anybody else. However, any relative within the meaning of the Act can then apply to the County Court for the order to be discharged or varied.

Appendix A: Your Nearest Relative under the Mental Health Act 1983

Click here to view Leaflet: Your Nearest Relative under the Mental Health Act (1983)