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Duncan Lewis’ Aqsa Sattar provides an overview on the legal powers of a nearest relative has under the Mental Health Act 1983 (12 December 2016)

Date: 12/12/2016
Duncan Lewis, Legal News Solicitors, Duncan Lewis’ Aqsa Sattar provides an overview on the legal powers of a nearest relative has under the Mental Health Act 1983

The Mental Health Act 1983 provides the authority in England and Wales to detain and treat people suffering from, or believed to be suffering from a mental disorder on a psychiatric unit without their agreement. A detained person is protected under the Act, and provided with certain rights, such as a right to challenge their detention in hospital. This can be done through exercising a right of appeal to the Mental Health Tribunal.

Not only is the whole process distressing and dis-empowering for the detained person, it can equally be just as upsetting for family members, thus it is important for family members to know their rights under the Mental Health Act, in order to avoid confusion and difficulties when dealing with their loved ones.

The Nearest Relative (NR) is a special term which is used under the Act. NR and Next of Kin are not the same. The Act has many different sections, and each section gives specific legal powers to one member of the family, known as the NR. When a person is detained under the forensic sections of the Act, the legal powers of the NR do not apply.

The NR plays an important role in supporting the person who is detained in hospital as this can be a very stressful time. NR’s are able to support the person detained by attending ward rounds to seek information from doctors on treatment plans, progression and leave status. It is important for NR’s who want to be involved to behave and act in accordance with their role and in the best interests of their family member.

The NR is not chosen or appointed by the patient; and the guidance on which family member will fulfil the role is specified in law. The NR is an important safeguard for people detained under the Act, and having an identified NR can help to ensure that the detained person is protected when they are unwell.

A NR is chosen in accordance with the hierarchy set out in Section 26 of the Mental Health Act 1983; and in accordance with the law, the person who is highest on the list and the oldest in age would usually be specified as the detained persons NR:

1. Husband, Wife or Civil Partner (this includes couples who have been cohabiting for at least 6 months, as long as they are not married to someone else. If they are permanently separated they are excluded).
2. Son or Daughter
3. Father or Mother (If parents are unmarried, father must have parental responsibility in order to be the NR).
4. Brother or Sister
5. Grandparents
6. Grandchildren
7. Uncle or Aunt
8. Nephew or Niece

If the person detained in hospital is cared for by one of the relatives on the list, they would be classed as the NR regardless of the position in the hierarchy.

When the person is being assessed for the purposes of detention subject to a section of the Mental Health Act 1983, the AMHP must inform the NR that an application is going to be made or has been made to detain their relative under section 3 of the Act. However this does not apply to all sections under the Act; for example if a relative is being assessed under section 2 of the Act the NR does not need to be informed.

In certain circumstances the AMHP may not contact the NR regarding their relative’s detention if it would have a negative impact on the relative. A negative affect could include: emotional distress, mental health deterioration or physical harm. If requested to do so the hospital mangers should give the NR copies of any information given to the patient in writing. However the patient has authority to stop that information being shared with the NR.

The NR has the legal power to discharge their relative from section; however this does not apply to all sections of the Act. Examples of sections where the NR can request to discharge a relative subject to detention in hospital, are Section 2, 3 and 17A also known as a Community Treatment Order.

This can be done by giving the hospital managers 72 hours written notice. If the RC disagrees and does not think that the patient should be discharged, they can issue a ‘barring order’ within 72 hours. This will stop the discharge and the barring order will be issued to the NR. The NR will not be able to discharge their relative from detention after the date of the baring order.

An application can be made to the County Court by the hospital authority to remove the NR from their role, if they are of the opinion that the NR is stopping an application for detention on unreasonable grounds. This is known as ‘Displacement of the Nearest Relative’.
The NR can be displaced if the person detained or the Local Authority is concerned about the way the NR is behaving. The hospital or local authority can contact safeguarding to request an assessment if they feel that the NR is a risk to the person detained.

Grounds for displacing the NR include the following:

1. Cannot act due to health reasons
2. Unreasonably objects to the section
3. Have tried to discharge relative without consideration of all the circumstances
4. Unsuitable to act

The person detained under the Act has the right of appeal to the Mental Health Tribunal once during each period of detention in order to challenge their sectioning. The NR can attend Mental Health Tribunal Hearings and if they agree with the detained persons views, they can give evidence in support of an application for discharge at the hearing itself.

When a relative is detained against their will it can be a daunting and bewildering experience for family members, especially NR’s as they have an important role to play. The Leicester Mental Health and Capacity Team at Duncan Lewis Solicitors are not only able to provide expert personalised advice to Nearest Relatives; but are also proficient at providing specialist legal advice and assistance to persons detained subject to the Mental Health Act 1983.

Author Aqsa Sattar is a Caseworker in the Mental Health and Court of Protection department in the Duncan Lewis Leicester Branch. Aqsa works with individuals detained under the Mental Health Act including those detained in secure forensic institutions. Aqsa assists her clients in all aspects of legal advice and representation from the initial interview through to Hospital Managers Hearings and CPA reviews. Aqsa is proficient in providing specialist advice and assistance throughout her case work in preparation for Mental Health Tribunal hearings. Aqsa also works with those that lack capacity and is proficient in advising clients in all aspects of the Mental Capacity Act including cases arising in the Court of Protection. Aqsa is able to expertly assist her clients in a range of mental capacity issues, such as finance, health and welfare, and the Deprivation of Liberty Safeguards.

For legal advice from a member of our expert Mental Health team do not hesitate to call us on 0333 772 0409.

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