Nearest Relative: All you need to know

Thu 22nd Sep 2022

Coodes’ Rebecca Moore, a chartered legal executive who specialises in mental health, explains what the term Nearest Relative means and how a Nearest Relative can help people undergoing specialist treatment…

What is a Nearest Relative?

Nearest Relative is a term under the Mental Health Act. It gives one family member certain rights and responsibilities in relation to someone’s care and treatment.

A Nearest Relative is different from your next of kin. The next of kin does not have any rights under the Mental Health Act.

You will usually be aware of having a Nearest Relative if:

  • You are detained in hospital under sections 2, 3 or 4 of the Mental Health Act 1983
  • You are being treated in the community under a Community Treatment Order
  • You are being treated under a guardianship

Who can be a Nearest Relative?

Who the Nearest Relative should be is set out in law, by way of a list in order of priority:

  1. Husband, wife or civil partner (including cohabitee for more than 6 months).
  2. Son or daughter
  3. Father or mother (an unmarried father must have parental responsibility in order to be nearest relative)
  4. Brother or sister
  5. Grandparent
  6. Grandchild
  7. Uncle or aunt
  8. Nephew or niece

If the person at the top of the list is not around or unable to act, the role will fall to the next person, and so on.

What does a Nearest Relative do?

A Nearest Relative’s role is to look out for you, and make sure your wishes and choices are heard and understood. They have various rights and responsibilities. A Nearest Relative can:

  • Apply to have you placed under section
  • Object to you being sectioned
  • Apply for you to be discharged if you are sectioned
  • Apply for a tribunal if their request for discharge is refused
  • Ask an independent advocate to support you
  • Be consulted and given information about you if you are sectioned
  • Delegate their powers, appointing someone else to act as your Nearest Relative

What happens if I do not want a particular family member to be my Nearest Relative, or I do not have one?

It is sometimes appropriate to try to change who is your Nearest Relative. This is called ‘displacement’ and it is something our expert Mental Health team here at Coodes can help with.

Displacement can happen on the following grounds:

  • The Nearest Relative cannot act because of health reasons
  • They have unreasonably objected to a Section 3 or Guardianship application
  • They have tried to discharge you without considering all of the circumstances
  • They are unsuitable to act
  • You don’t have a nearest relative from the list
  • It is not practical to identify them

If you feel that your Nearest Relative is not acting in your best interests, then our team at Coodes can advise you on displacement proceedings so you can decide who should act on your behalf. These proceedings take place in County Court. It involves an application being prepared, which puts forward the detailed reasons why you wish to displace your current Nearest Relative.

The process also involves setting out who should be nominated as your Nearest Relative instead. If there is no appropriate alternative, it’s likely that the Local Authority will be the most appropriate option.

Legal Aid is available for displacement proceedings, subject to an assessment of the eligibility criteria.

If you are the Nearest Relative

Our team at Coodes can offer advice and assistance if you have been named as the Nearest Relative. Being someone’s Nearest Relative brings many responsibilities.

Remember, if you feel like this is a role you would rather not have then you can delegate your rights/responsibilities to another person. We can help talk you through the process, as well as offer assistance and representation at a tribunal, if necessary.

Get the right advice

Our highly experienced team here at Coodes is here to help. For more information or to speak to a member of our team, call 0800 328 3282 or contact us via our online form.

Thu 22nd Sep 2022

Rebecca Moore

Associate

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