Monday, 30 May 2011

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.


  1. I'm so geeky that I actually chuckled through the post. Great post. I may well print that out and keep it at work :)

  2. I passed the test ;)

  3. must be geeky too as also raised a smile...inspired me to inject a bit more humour into my NR training :-)

  4. Very droll.

    It's all more complicated doing this under pressure and only with information from the person themselves or other family members who may have axes to grind to go on. (Your post on the agendas of Nearest Relatives was excellent).

    I once watched someone trying to identify the nearest relative of a young Somali man. The definition of 'uncle' in this particular community complicated the inquiry.

    I knew a chap who had his own entry in Jones because of a minor error about this sort of thing. Immortality! Better than the front page of the Daily Mail.

    You didn't mention the charming terminology about potential NRs permanently resident outside the UK. They will be treated 'as if dead'. Also, what would you do about finding the NR for a non-resident foreign visitor? And then, there are non-adopted step children.

    Then there are the circumstances in which it's permissible not to consult the NR. Or you could seek 'displace' them in the County Court.

    On reflection, I think you've unhelpfully over-simplified the issue.

    Do you think the way the representative is handled under the DoLS scheme might be a reaction to the NR merry-go-round? They're just recommended by the Best Interest Assessor and appointed by the Supervisory Body. Simple.

  5. The Masked aMHP7 July 2011 at 20:55

    Hi Anonymous. Thank You for your interesting comments. This is of course only an introduction to the concept of the Nearest Relative under the MHA. I was actually trying to show how fraught it can be. I don't think my readership expect me to go into as much detail as Jones. After all, I want them to enjoy my blog! Pofessionals will know where to go if they have a particularly knotty problem.

  6. Only joking Masked AMHP!

    I wouldn't want you to leave the good people with the impression this was an easy job.

    Also, I think you also work as a BIA: what about a compare and contrast job? Your blog has some excellent stuff and I regularly advertise it in training and the like as the only source of honest discussion about the practical implications for any poor wight trying to implement the law.

  7. I chuckled all the way through, thanks for that, feeling v geeky I passed the test. I hope I will be feeling as confident in the MHA assessments!

  8. Have any AMHPs had a stab at working out a mathematical way of identifying the NR? Along the lines of 20 questions? Or fewer?

  9. brilliant, passed your test too, hope i'll be able to pass my real test tomorrow (i'm on amhp training)...

  10. Help and advise please The Masked AMHP. Prey tell is it true that I as a devoted Mother have no rights as a NR?
    Ex Husband ( who is my elder and Father of my detained teenage daughter) who has contact with the children probably 9/30 nights a month on average appears to be. Can I contest this as I am the parent who is responsible for the majority of care and attention. Does his numerous holidays when I obviously take more responsibility come into the equation?..(hmm 13 over the 2 year period of illness), and would they even be able to reach him on the golf course ?? Bitter Mother here what moi??, I never thought I would be but hey life is full of surprises. Please advise. Many thanks

    1. If your daughter lives with you, then you should by NR, even if her father is older than you. If she lives with her father, then he would be NR. If she lives with neither of you, but you provide the majority of the care and have the most contact, then you should be regarded as NR.

  11. Dear masked AMHP if a person with mental illness aged 40 has a daughter of 19 and they live with her parents 65 who would be her NR..?

    1. I assume you mean that the patient and their daughter lives with the patient's parents. In that case, it would probably be the daughter, unless one of the parents of the patient was providing substantial care (more than the daughter) to the patient.

  12. someting i've discussed with my partner (who is an AMHP, hence my reading of your blog) is what if the only nearest relative is in fact someone who is abusing the patient, whether by way of violence or otherwise? in my view, it surely can't be right that such a person can have any say whatsoever....but i can't see that the relevant legislation provides any way round it.....

    1. There's case law that states that if there are grounds to believe that the NR is abusing or has abused the patient,or if the patient is likely to be harmed by consultation with the NR, then it can be considered "impracticable" to consult. The AMHP then states the reasons for that decision in their report.

  13. hi, I am still married to my Wife, separated but live in the same address. I have no official designation as a carer but there is no one else and it seemed that was what was necessary. She has ended up detained under either Section 2 or 3.

    Could I qualify as NR because of the longterm care or does the wording "cannot" in (permanently separated from your partner they cannot be your nearest relative) make it impossible for me to continue as NR? There is no one else.

    I also don't understand the difference between separated and permanently separated if that's easy to define and not too far off topic.

    thanks for being here - it's been stretching out over the bank holidays and I can't get my concerns listened too and my wife is without a NR without me.

    1. If you are legally separated, ie if there is a court order, then you would not be the NR, even if living at the same address, and even if not actually divorced. However, you might still just squeak in if you have been at the same address for over 5 years, especially if you have had some sort of caring role, even if no longer living together as husband and wife.
      Is she detained under S.2 or S.3? An AMHP must have made some attempt to identify a NR, whose name should then have been put on the section papers, unless they could not identify a NR. If detained under S.3 they would have had to have consulted with a NR if one was identified.
      If the separation was informal, ie no court order, and you were sharing the house and perhaps cooking together and sharing bills but not sleeping in the same room, then you could still be regarded as the NR, especially if you had been providing a caring role.
      The 5 year rule might still get you identified as the NR.
      Otherwise, if the AMHP had concluded that there was no NR within the meaning of the MHA, they should go to court so that a judge could designate someone to act as NR. This would normally be an AMHP or employee of the local authority.

  14. Person on s3 married and was living with wife. wife now left the address and appears to have left her spouse permanently. Would the NR now be one of the persons children ??

    1. If the wife considers herself to be permanently separated from the patient, then the NR status would go to the next person on the hierarchy, which would be an adult son or daughter if there was one.