How do we identify someone's 'Nearest Relative'?

Here at Biscoes we are often contacted by worried family members of individuals detained under the Mental Health Act 1983 (as amended) (MHA 1983). We will always ask the question, “are you the Nearest Relative for this family member?” Often, they will not know the answer as this is a term used specifically in the MHA 1983 but is not widely known outside of this area of law.

A Nearest Relative is not the same as a Next of Kin but it is very important in the context of someone being detained under a Section of MHA 1983. A Next of Kin does not have any rights under MHA 1983, whilst a Nearest Relative has particular rights and responsibilities.

Section 26 MHA 1983 sets out a strict list and the person who is the highest on the list will be considered the Nearest Relative for the individual. The list is as follows:

• Husband, wife or civil partner (including cohabitee for more than 6 months);
• Son or daughter;
• Father or mother;
• Brother or sister;
• Grandparent;
• Grandchild;
• Uncle or aunt;
• Nephew or niece.

If there are two people from the same group, such as a mother and a father, the elder person will be considered the Nearest Relative. Any relative has to be at least 18 years old to count as the Nearest Relative, unless they are a husband, wife, civil partner or living with the patient for at least 6 months as the husband, wife or civil partner.

It should be noted that a relative who lives with, or cares for, the patient, takes precedence over any other relatives. So, if a patient lived with their youngest son, then the son would be Nearest Relative over any other children, as long as he was over 18.

Importantly, adoptive children count as natural children and relationships of the “half-blood” shall be treated as relationship of the “whole blood”. However, a relation of the “whole blood” will take precedence over the same relation of the “half-blood”. An unmarried father must have parental responsibility in order to be Nearest Relative.

If the patient is married or in a civil partnership, but is separated or abandoned by their partner, then that person cannot count as their Nearest Relative. If a relative permanently lives abroad, then they are also excluded from being Nearest Relative.

Examples

1. Joe is a 45-year-old man detained under Section 2 MHA 1983. He is single and has no children. His parents are dead. He has one half-sister who is 40 years old and one brother who is 38 years old. Under Section 26 MHA 1983, his brother would be his Nearest Relative as he is a relation of the “whole blood” despite being the younger sibling.
2. Lily is a 30-year-old woman detained under Section 3 MHA 1983. She is married but separated from her husband. They have a 7-year-old child together. Lily’s mother is 58-years-old and her father is 60-years-old. Under Section 26 MHA 1983, her father will be her Nearest Relative as he is the eldest parent, she is separated from her husband and her child is under the age of 18.
3. Mary is a 78-year-old woman subject to a Section 17A Community Treatment Order. She has a son and a daughter who lives in different counties of the UK. She lives with her sister, Alison, and has done for the last 8 months. Alison provides her with informal care. Under Section 26 MHA 1983, Mary’s sister will be her Nearest Relative as she takes precedence over Mary’s children as she resides with Mary and provides her with care.

If you have any questions about being a Nearest Relative, please take a look at our website page on Nearest Relatives - https://www.biscoes-law.co.uk/site/private-solicitors/mental-health/nearest-relative/. Alternatively, if you are a patient detained under MHA 1983 or a Nearest Relative needing legal advice and assistance, you can contact the Mental Health Team on 02392 660 261 or IJefferson-Grant@biscoes-law.co.uk.