If someone you care about is struggling with their mental health, especially if they might be detained in hospital under the Mental Health Act 1983, you may hear the term “Nearest Relative”. But what does that mean? Who is the nearest relative? And what rights and responsibilities come with this role? This article will explain everything clearly, so you understand the important part the nearest relative plays in mental health care.
What is the Mental Health Act 1983?
Before diving into the nearest relative, it helps to understand what the Mental Health Act (MHA) 1983 is. The MHA is a law that allows people with serious mental health problems to be treated, sometimes even if they don’t want to be. This can include being admitted to a hospital for assessment or treatment — often called “being sectioned”.
The Act is designed to protect people who may be at risk of harming themselves or others. But it also gives important rights to those who are detained and to their families or carers. One of these key roles is the nearest relative.
Who is the Nearest Relative?
The nearest relative (NR) is a legal role set out by the Mental Health Act. It is not the same as “next of kin,” a term you might be more familiar with. The nearest relative has specific legal rights and duties when a person is detained under the MHA.
The important thing to know is that you cannot choose your nearest relative. The law decides who this person is, based on a fixed order of family relationships.
Here is the general list of who the nearest relative will be, starting with the highest priority:
- Husband, wife, civil partner, or someone you live with as a partner for 6 months or more
- Your son or daughter
- Your father or mother
- Your brother or sister
- Your grandparent
- Your grandchild
- Your uncle or aunt
- Your niece or nephew
- Someone who has lived with you for at least 5 years, even if they are not a relative
If more than one person qualifies in the same category, usually the oldest person takes priority.
Why Does the Nearest Relative Matter?
The nearest relative has several important rights under the Mental Health Act, especially when someone is detained or being considered for detention. The NR’s role is to protect the detained person’s rights and make sure their interests are taken into account.
You, as the nearest relative, may be the first person the hospital contacts about your loved one’s care. You will have a say in some key decisions, such as whether they should be detained or discharged. You can also support them through what can be a confusing and stressful time.
What Rights Does the Nearest Relative Have?
Here are the main rights you have as a nearest relative under the Mental Health Act:
Right to Be Consulted About Detention
If your relative is being considered for detention under Section 3 (which is for treatment lasting up to 6 months), the hospital or mental health professionals must consult you before the detention happens.
For Section 2 detention (up to 28 days for assessment), you have the right to be informed if an application is made, but the consultation requirement is not as strong.
If you disagree with the detention under Section 3, you have the right to object. However, your objection may lead to the hospital applying to the County Court to displace you as nearest relative if they think your objection is unreasonable.
Right to Request a Mental Health Act Assessment
If you are worried about your relative’s mental health and think they may need to be detained for their safety or the safety of others, you can ask social services to arrange a Mental Health Act assessment. This starts the process of considering detention under the MHA.
Social services must seriously consider your request. If they decide not to assess, they must tell you in writing why.
Right to Apply for Admission
In some cases, the nearest relative can make an application to the hospital managers to have their relative admitted to hospital under the MHA.
This right is especially important in emergencies or if two doctors agree detention is needed but the Approved Mental Health Professional (AMHP) disagrees.
Right to Information
You have the right to be informed about detention applications, renewal of detention, extensions of Community Treatment Orders (CTOs), and discharge notices.
However, this right is not absolute. If sharing information would harm your relative — for example, by causing emotional distress or worsening their condition — the professionals may decide not to inform you.
You also do not have the right to know all details about your relative’s diagnosis or treatment unless they agree to share this with you.
Right to Order Discharge
As nearest relative, you can order the discharge of your relative from hospital detention, guardianship, or a Community Treatment Order by giving written notice (usually 72 hours in advance).
However, the Responsible Clinician (the doctor in charge) can issue a barring report to block the discharge if they believe the patient poses a serious risk to themselves or others.
If discharge is barred, you can appeal to the Mental Health Tribunal.
Right to Delegate Your Role
If you do not want to act as nearest relative, you can delegate your rights to someone else — this person does not have to be a family member but must agree to take on the role.
You can also revoke this delegation and take back your role at any time.
Right to Appeal to the Mental Health Tribunal
If your powers as nearest relative are restricted, for example, if your discharge order is barred or you are displaced as nearest relative, you can appeal to the tribunal.
What Does the Nearest Relative Not Have?
It is also important to understand what rights the nearest relative does not have:
- You do not have the right to know everything about your relative’s care or treatment without their consent.
- You cannot make medical or financial decisions for your relative unless you have Lasting Power of Attorney or a Court Deputyship.
- You cannot stop your relative from being given medication or treatment without their consent, if this is allowed under the MHA.
- You cannot prevent a Community Treatment Order (CTO) from being made.
- You do not have the right to authorise hospital leave.
What Happens If You Do Not Want to Be the Nearest Relative?
Sometimes, you may not want to be the nearest relative. This can happen if the role feels too stressful or you think someone else is better suited.
You can delegate the role to someone else by writing to the hospital, local authority, and other relevant parties.
If you do not want to delegate but cannot or should not act as nearest relative, the hospital or Approved Mental Health Professional (AMHP) can apply to the County Court to displace you and appoint another person.
The Court decides who is the most suitable nearest relative and may choose someone outside your family.
What if the Nearest Relative Is Displaced?
If you are displaced as nearest relative by the County Court, your powers will be transferred to another person appointed by the Court.
You have the right to appeal this decision to the First Tier Tribunal, usually within one year of displacement.
How is the Nearest Relative Identified?
Usually, the Approved Mental Health Professional (AMHP) identifies the nearest relative during the mental health assessment.
Sometimes this can be complicated if the patient has a complex family situation. The AMHP will follow the legal order of priority and check living arrangements.
If it is unclear who the nearest relative should be, or if the NR is unsuitable, the AMHP or hospital can apply to the County Court to appoint an appropriate person.
Who Does Not Have a Nearest Relative?
Some patients detained under forensic sections of the Mental Health Act do not have a nearest relative.
Forensic sections apply when a person has been involved with the criminal justice system (e.g., offenders or those on remand) and is detained in hospital because of their mental health.
These patients are managed differently and the nearest relative role does not apply.
Supporting Your Loved One as Nearest Relative
Being nearest relative can be a difficult and important role. Here are some tips to help you:
- Stay informed: Ask for information and support from the hospital, but respect your relative’s privacy.
- Understand your rights: Know when and how you can be involved in decisions about detention and discharge.
- Communicate: Work closely with the Responsible Clinician, Approved Mental Health Professional, and advocacy services.
- Seek support: If you feel overwhelmed, speak to a mental health solicitor, advocacy service, or support group.
- Use your powers wisely: Always consider your relative’s welfare and safety, and the safety of others.
Conclusion
The nearest relative plays a crucial legal role under the Mental Health Act 1983. While you may not choose to be the nearest relative, your involvement can make a significant difference to the care and rights of your loved one.
Remember, your powers as nearest relative come with responsibilities — but also support and legal protections. You can ask for help, delegate your role if needed, and appeal decisions if you think they are unfair.
