Who Is Your Nearest Relative?

Blog Reader: I say, Masked AMHP, you’ve been promising to write a post about how to identify the Nearest Relative of a patient detained under the Mental Health Act for the last couple of years. Isn’t it time you got round to it?

Masked AMHP: Do I really have to?

BR: I’m sure we’d all appreciate it.

MA: Can’t I write about a history of mental health legislation instead?

BR: Save it for a future post. I want to know about Nearest Relatives!

MA: Oh, very well then. What do you want to know exactly?

BR: I want you to describe the process of identifying the Nearest Relative within the Meaning of the Mental Health Act. But so that I can understand it.

MA: You want the moon on a stick, don’t you? Don’t you know that Richard Jones devotes 12 pages of very small print in the 13th Edition of the Mental Health Act Manual to the identification of the Nearest Relative? (Available new from Amazon for only £68.82!)

BR: Does he? How interesting. But I’m sure you can do it in fewer pages. And stop advertising.

MA: OK then, I’ll have a go. But you may get a headache.

BR: I’ve got some Solpadol (available from all good chemists!)

MA: You’ll need them. And you stop advertising as well. Let’s see, where to start? Well, you need to understand right from the beginning that the Next of Kin is not necessarily the same as the Nearest Relative. You can choose your Next of Kin, but your Nearest Relative (I’m going to use the term NR from now on, as I’m fed up of typing Nearest Relative over and over again), is set in stone. Sort of. Sec.26 of the MHA defines the Nearest Relative, although to be honest, Chapter 33 of the Reference Guide to The Mental Health Act 1983 explains it more clearly. By the way, did you see how I’ve mastered hyperlinks in my blog?

BR: Stop showing off and get on with it.

MA: (Takes deep breath) Here goes then. The NR is the first person you encounter in the following list:

• husband, wife or civil partner;
• son or daughter;
• father or mother;
• brother or sister;
• grandparent;
• grandchild;
• uncle or aunt;
• nephew or niece.

BR: That wasn’t too bad. I thought it was going to be much more difficult.

MA: I’ve only just begun. There’s rather more. Any relative has to be at least 18 years of age to count as the NR – unless they are a parent (unlikely, I’d have thought) or a husband, wife, civil partner, or living with the patient for at least 6 months as the husband, wife or civil partner. Oh, and adoptive children count as natural children. Then, of course, to quote from the Act: “Any relationship of the half-blood shall be treated as a relationship of the whole blood, and an illegitimate person shall be treated as the legitimate child of (a) his mother, and (b) if his father has parental responsibility for him within the meaning of Section 3 of the Children Act 1989, his father.” And of course, you have to remember that despite that, a relation of the whole blood will take precedence over the same relation of the half-blood.

BR: That sounds a bit Harry Potterish.

MA: Don’t be sarcastic. But since you’ve mentioned it, applying these rules, who is Harry Potter’s NR?

BR: Well, let’s see, both his parents are dead. He lives with the Dursleys, who we are told are his only living relatives. So it must be his uncle, Vernon?

MA: Nope. Vernon is not a blood relative. His aunt, Petunia, is the sister of Lily Potter, Harry’s deceased mother. She’s definitely over 18, so Petunia Dursley is Harry Potter’s NR within the meaning of the MHA.

BR: Well, I’m glad we’ve got that straight. Do you think Harry’s likely to need sectioning?

MA: Well, he thinks he has special powers, he sees all sorts of strange things that other people can’t see, he hears voices other people can’t hear – what do you think?

BR: I think you’re beginning to spoil the magic of the Harry Potter series for me...

MA: Right, back to the NR. If there is more than one person who comes in the same place in the list, then the eldest takes precedence, regardless of gender.

BR: OK, so I don’t have a partner, and I don’t have any children, but I have a mother and father. That would mean that the elder of the two would be my NR.

MA: That’s right! And if you didn’t have any surviving parents, but you had several brothers and sisters, the eldest would be your NR if there was no-one higher up in the list. And so on. But there are exceptions.

BR: Of course. There are always exceptions.

MA: A relative who lives with, or cares for, the patient, takes precedence over any other relatives. So if a patient lived with their youngest daughter, then the daughter would count over any other children, as long as she was over 18. If you are married or in a civil partnership, but separated or abandoned by your partner, then that person cannot count as your nearest relative. Oh, and if a relative permanently lives abroad, then they don’t count.

BR: What if you can’t find anyone on the list?

MA: Well, if you have lived with someone for at least 5 years, but not as a husband, wife, or same sex partner, then they would count. So if you were a lodger, your landlady might count as NR if you had no other living relatives. And finally, the NR can delegate someone else to act as the patient’s NR.

BR: Is that basically it, then?

MA: Well, I won’t go in to people detained under Part III of the MHA, that is, via the criminal justice system, as they don’t legally have NR’s.

BR: Why not?

MA: No idea. Anyway, let’s give you a little test. Here’s a real case where I had to reach a decision about who was the NR. Fanny was 67 years old. She lived alone. She had been married, but had divorced many years previously. She did not have any children. She had 5 or 6 brothers and sisters who lived in the area. The oldest of these lives in Spain. One brother lived nearby and used to visit her several times a week and help her with shopping and so on. Her father had had a son before he married her mother. This half brother was older than any of her other siblings, but he lived many miles away and had only ever seen his sister a few times. Who is Fanny’s NR?

BR: Well, the oldest of her siblings, regardless of contact? That would be the half brother.

MA: That’s what I thought too. So I contacted him, but he was ill and didn’t want to undertake the role of NR. So he appointed his daughter to act as NR, and I consulted her, and put her name on the section papers. But I was wrong.

BR: (Incredulously) The Masked AMHP was wrong?

MA: Yes. I’d forgotten two things. The first was that relatives of the full blood take precedence over relatives of the half-blood. The second was that a relative who was a carer of the patient took precedence over other relatives. So the brother who lived nearby and helped her with shopping was her actual NR. And I used him the next time I had to section her.

BR: That’s a pretty serious mistake. Didn’t you get in trouble?

MA: Well, “to the best of my knowledge and belief” I had identified the half brother. You only have to show that you have taken reasonable steps to establish the NR. I rectified it next time. Even the Masked AMHP can make mistakes, OK?

BR: So that’s all there is to know about establishing the NR for the purposes of the MHA?

MA: Would you like to know about children subject to Care Orders? The NR rules don’t apply to them. Oh, and the NR of a patient can change over time – if they get married, for instance, or if a child reaches the age of 18. Oh, and –

BR: That’s quite enough for one post, thank you. Nice to talk to you.

MA: Nice to talk to you, too. I hope you’ll drop in again sometime, when I might tell you all about the history of mental health legislation.

BR: I can’t wait.

When Nearest Relatives Object

The Mental Health Act gives the Nearest Relatives of patients subject to the Act specific legal powers. These include the right to apply for the discharge of a detained patient from hospital, as well as a veto of use of detention under Sec.3.

If an AMHP decides that a patient needs to be detained under Sec.3 of the Mental Health Act for treatment, they have a legal duty to consult with the identified Nearest Relative. Form A6, which is the form the AMHP uses to make an application for detention under Sec.3, is more concerned with issues relating to consultation with the Nearest Relative than anything else. The AMHP has to show that he or she has identified the Nearest Relative (I’ll deal with this arcane process in a future post, as it tends to involve incantations and the construction of pentagrams) and that consultation has taken place. If the AMHP has been unable to identify the NR, or has not been able to consult with the identified NR, then they have to state this and give reasons.

The purpose of the AMHP’s consultation with the NR is partly to inform them of their rights and powers under the Act, but mainly to find out whether or not they have any objection to their relative being detained. The AMHP has to certify that the NR “has not notified me…that he or she objects to this application being made”.

This is a crucial difference between Sec.2 and Sec.3. The AMHP only has to notify the NR that a Sec.2 application is being made. They do not otherwise have a say in the process. However, if the NR does object to the Sec.3, then no application can be made. The only way round this is for the AMHP to go to the High Court to apply for the NR to be displaced. They can only do this if there are compelling reasons, such as evidence that the NR is acting unreasonably or if they lack mental capacity. This is often a long and onerous process, involving the local authority’s legal department and the High Court. During that time the patient can often remain in suspended animation on an eternal Sec.2. It’s certainly not something that an AMHP can do on their mobile while standing in a patient’s kitchen.

AMHP’s can get into serious trouble if they do not properly consult with the NR. There have been a couple of legal decisions regarding this issue. One recent one was TTM v Hackney Borough Council and Others, 14th January 2011 in the Appeal Court. This concerned a patient who had been detained for 10 days under Sec.3 in a hospital in spite of the fact that the patient’s nearest relative had objected and no application for that relative‘s displacement had been made. The court found that the AMHP had acted unreasonably and in breach of the law, and that the patient had therefore been detained unlawfully, not just under domestic law, but also in breach of his rights under the Human Rights Act. This meant that the patient was eligible to claim compensation for unlawful imprisonment.

Another case where the then Approved Social Worker (as it was before the changes to the MHA bringing in AMHP’s) became unstuck was GD v The Managers of the Dennis Scott Unit at Edgware Community Hospital and The London Borough of Barnet, Queen’s Bench Division (Administrative Court), 27th June 2008 (Case law decisions have snappy titles, don't they?). In this case, the patient’s NR was his father. The patient was well known to mental health services with a diagnosis of schizophrenia, and it was also known that his father preferred natural remedies for his son’s mental illness over conventional hospital treatment and would be likely to object to an application under Sec.3 being made. There was also the very real fear, as it had happened in the past, that the father would hide him if he knew that an assessment was going to take place. Consequently, the ASW did not contact the NR before the assessment, and only let him know by leaving a message when the assessment was actually taking place. When the NR returned the call 20 minutes later, the paperwork had already been completed. He then indicated in no unclear terms his feelings about this and his objection. The ASW had by then filled in the section of the form indicating that it had been “impracticable” to consult with the NR. The Judge in the case found that the patient had been illegally detained because the ASW had deliberately failed to make adequate attempts to consult with the NR as he knew that the NR would object.

I have fortunately never been in the position of having to apply to displace a Nearest Relative. In my experience, it is fairly rare for Nearest Relatives to object to detention, although they may at times have misgivings, and quite often do not wish the patient to think that they have colluded in the admission. In these cases, I attempt to reassure the relative that although they have not objected, that is not the same as agreeing, and that the final decision, and responsibility, lies with the AMHP.

However, there are times when ascertaining the views of the Nearest Relative can be fraught with problems. There follow a few from my personal experience.

Charlotte
This was a case from the dim and distant past of the Mental Health Act, even before the 1983 Act. Charlotte was a 17 year old girl who was an informal patient in the local psychiatric hospital. She had had a very disturbed and abusive childhood, and had been rejected by her parents and spent several years in local authority children’s homes. She had been admitted after displaying bizarre and irrational behaviour. Following admission to the psychiatric ward, which in those days was a ward in the general hospital, and was directly beneath the prenatal and post natal wards, she had gone upstairs and wandered onto the post natal ward, where she had been apprehended in the act of attempting to remove one of the babies.

A request was made for her to be detained under the equivalent of Sec.3, which under the 1959 Act was known as Sec.26. This was in itself unusual, as patients had to be at least 18 years of age to be detained under Sec.26, with one exception: if the person had a psychopathic disorder. Since this was the case with Charlotte, she could be detained under this section.

I had to consult with her father, who was her Nearest Relative, to establish whether or not he objected to her being detained. In those days of generic social work teams (we’re talking about the early 1980’s), I worked in the same office as her social worker, and was aware that she was estranged from her parents, who had explicitly stated that they wished to have nothing to do with Charlotte. However, I considered that the requirements of the MHA overrode this instruction, and that I had to attempt to make contact with him. I rang him on his home number. His wife answered the phone. Charlotte’s father was at work. I explained to Charlotte’s mother the reason why I was ringing, and asked her to get Charlotte’s father to ring me.

A few minutes later I received a call from her father. Before I had a chance to explain in more detail the reasons for my call, he launched into a clearly prepared statement: “Social Services are aware of our instructions that we do not wish to have any contact concerning our daughter. If you attempt to make any further contact with us in any way, then I shall lodge a formal complaint with the Director of Social Services.” He then hung up.

I had at least made an effort to consult with Charlotte’s Nearest Relative. I had even spoken to him, briefly. And he had not indicated in his statement that he objected to her detention under the Act. So I felt in the circumstances that I could with hand on heart state on the form that I had consulted with the NR and that they had not objected.

Cathy
Cathy was an intelligent and well educated woman in her 30’s. Following a still birth, she slid into a vicious and intractable depression. She was admitted to hospital as an informal patient, but I was subsequently asked to assess her under the MHA and she was detained under Sec.2 for assessment. After a period of assessment, a further request was made for her detention under Sec.3 for treatment. I agreed to this and consulted with her nearest relative, which in this case was her mother. Her mother worked in a mental health voluntary organisation, and therefore had some knowledge of mental illness. I consulted with her and she did not object to Cathy being detained.

Cathy remained in hospital for over a year, but after a range of treatments her depression improved and she was discharged to the address of a friend. However, within a couple of months her mood had deteriorated drastically, and she took a serious overdose. She was again admitted informally to hospital from a medical ward, but then refused treatment. I assessed her again and applied for her detention under Sec.2 for further assessment. After three weeks it was clear that she was going to need a longer period of treatment as an inpatient, to which she would not agree, as she wanted to leave hospital in order explicitly to end her life.

It was clear that Cathy was going to need to be detained under Sec.3 again, so I contacted her mother in order to consult with her. To my surprise, she was very reluctant to consider her daughter’s further detention.

“Her life is pretty awful, isn’t it? She’s spent an awful amount of time in hospital. She doesn’t really have anything to live for, does she? Perhaps she ought to be allowed to die,” she said to me.

I was somewhat taken aback. I found it difficult to believe that Cathy's mother could even consider the alternative to detention as an option.


My own view was that Cathy suffered from a serious mental illness that was treatable. It was because of her mental illness that Cathy wanted to kill herself. She did not have the capacity to make a rational decision about ending her life or accepting treatment. I would be failing in my duty of care to Cathy if I allowed her to take her own discharge from hospital in order to kill herself.
I shared all this with her mother. The conversation continued for over an hour. She eventually reluctantly agreed that she should be kept in hospital for treatment.

Cathy did recover, was discharged from hospital after few months, remained well this time, and was never detained again.

Cheryl
Cheryl was a woman in her early 40's with bipolar affective disorder. She had a history of having acute manic episodes when subjected to excessive stress. When she became unwell, she frequently needed acute admission under the Mental health Act, as she rarely had enough insight to recognise she was becoming unwell. She had three children, but none of them were old enough to be her nearest relative, so when she needed detaining I always consulted with her mother as nearest relative.

She had been out of hospital for about three years when she again had an acute manic episode. This was accompanied by paranoia, classic symptoms of bipolar disorder, including pressure of speech, flight or ideas, an inability to sleep, concentrate or eat, as well as symptoms of paranoia, believing that she and her daughter were victims of pornography, as well as the belief that she had two wombs and had had dozens of babies, all of whom had been given away to paedophiles.

I went out with the consultant psychiatrist and her GP and it did not take long to decide that Cheryl needed to be admitted to hospital. She did say that she would go informally, but I did not feel that she had the capacity to agree, and was in any case likely to change her mind at any time. I obtained two medical recommendations and then consulted with her nearest relative. Her eldest son was now 19 years old, and therefore now counted as her nearest relative. He was present in the house and had been involved in the assessment. I took him to one side and asked him whether he had any objection to his mother being detained under Sec.3.

He did object.

I discussed the situation with him. He recognised that his mother needed to be in hospital, but did not want her to be detained. He wanted her to go in informally. He said that if his mother refused to go in at the point of admission, then he would have no objection to me detaining her then, but otherwise he could not agree.

I could understand his feelings. He had seen his mother being sectioned on several previous occasions, and at times she had been so disturbed that police had been involved and she had been taken to the police station. (On one occasion, Cheryl had been so keen to see the pastor of the local church, she had literally driven through the doors of the church and had ended up in the aisle.) This was also his first experience of being consulted as the nearest relative. He probably felt, as many relatives do, that his mother might blame him if he was perceived to have been endorsing her admission.

So I respected his wishes and we took her in informally. Fortunately, it worked out, and Cheryl agreed to treatment in hospital which rapidly brought her back to normal.