Potential Impact on the 'Nearest Relative'

Independent Review of the Mental Health Act – Potential Impact on the ‘Nearest Relative’

Professor Sir Simon Wessely carried out an Independent Review of the Mental Health Act some time ago now. This landmark review revealed/confirmed that multiple changes both in law and practice are necessary to modernise the law and practices in this area. The Government published Reforming the Mental Health Act White Paper in August 2021 which outlines the proposed changes. This blog will deal with the proposed changes to the Nearest Relative powers only.  

Section 26 of the Mental Health Act 1983 (as amended) (MHA 1983) currently provides a list that helps to determine who is the patients Nearest Relative. However, as the family/carer relationships with the patient are not always as straight forward as one would like them to be, the Independent Review found that the current Nearest Relative provisions are outdated and insufficient. As such, the Nearest Relative will be replaced by a Nominated Person. The patients will be given the opportunity to select a person who will represent them. The patients will be able to nominate their representative even prior to detention.

Will patients who lack capacity be able to make a nomination?

Patients often lack capacity to make specific decisions. If it will be found that the patient lacks capacity to make a nomination at the time of the detention and they will not have made such nomination prior to the detention, the Approved Mental Health Professional (AMHP) will be able to make an interim nomination. The Interim Nominated Person (INP) will remain in place until the patient has regained their capacity to nominate their representative themselves. The Code of Practice will assist the AMHP in identifying the most suitable person to act as an INP. 

What about patients who do have the capacity to nominate their representative?

Patient who will be considered to have capacity, will have the opportunity to opt out and not have a nominated person. It must be noted that in the circumstances where functions of a Nearest Relative have been transferred to local authority (as per current Section 116 MHA 1983), the local authority will be required to arrange for visits to be made to them. If the patient is a child or a young person in the care of a local authority by virtue of a Care Order, the local authority will be required to take steps that otherwise might be expected to be taken by the patient’s parents.

This is a change that has been welcomed by the professionals working in this field as we often find that the patient’s Nearest Relative is someone who the patient has not spoken/engaged with for a considerable amount of time, someone who does not get along with patient or someone who potentially may not be able to support the patients’ needs.

What powers does a Nearest Relative have?

The patients Nearest Relative already has some roles and powers. The below roles and powers will remain the same for a Nominated Person as they are for a Nearest Relative:-

• A Nominated Person will be able to object to them being made subject to the MHA;
• A Nominated Person will be able to seek patients discharge;
• A Nominated Person will be able to appeal to the Mental Health Tribunal if their request for patient’s discharge is denied;
• A Nominated Person will be able to apply for the patient to be made subject to the MHA;
• A Nominated person will be able to receive information about the patient’s care. This, of course, is unless the patient specially objects to this.

What additional powers will a Nominated Person have?

• It has been proposed that a Nominated Person has the right to be consulted on statutory care and treatment plans. This has been proposed so that the Nominated Person could provide information on the patient’s views and wishes;
• It has been proposed that a Nominated Person is consulted prior to any transfers between hospitals, renewals and extensions to the patient’s detention or a Community Treatment Order;
• It has been suggested that a Nominated Person is allowed to challenge patient’s treatment at a Tribunal, if the patient lacks capacity to do it themselves;
• It has also been proposed that a Nominated Person is allowed to object to the use of a Community Treatment Order if it is considered not to be in the patient’s best interests.

What about restricted patients?

Patients who are subject to Part III of the MHA 1983 currently do not have a right to have a Nearest Relative. However, it has been suggested that patients subject to forensic Sections are also given the opportunity to have a Nominated Person who would be able to participate to care and treatment planning.

Children and Young People

Additional considerations are required when it comes to children under the age of 16. It has been proposed that children who has sufficient understanding, maturity and intelligence to understand what is being proposed, they are given the ability to pick their Nominated Person themselves. 

It has been proposed that the same rules apply to young people aged 16 or 17 as they will apply to adults.

Displacement of Nearest Relative/ overruling a Nominated Person

As it stands, an AMHP can seek for a Nearest Relative to be displaced if it is considered that they have sought patients discharge without due regard to their welfare or the welfare of other persons. This can be quite daunting and stop the Nearest Relative form exercising their powers. As such, it has been suggested that Nominated Person’s objection to detention is temporarily overruled as opposed to them being displaced from their position. This will allow a Nominated Person to continue to support the patient through their detention.

If you have any questions about your rights as 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 SCerbue@biscoes-law.co.uk .