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. If you are unsure whether you are the Nearest Relative, please read last month’s blog – “How do we Identify Someone’s Nearest Relative”.
Once you have identified that you are Nearest Relative, what can you do for your loved one?
Nearest Relative Powers
Section 23(2) MHA 1983 gives Nearest Relatives the power to order discharge. Please be advised that this is only relevant to non-restricted sections (sections 2, 3, 7, 17a (CTOs), 37 notional, and 37 guardianship).
For a Nearest Relative to order discharge, they must give the Hospital Managers of the Hospital that the patient is detained in 72 hours’ notice of their intention to discharge the patient. They can use a form or write a letter to the Hospital Managers to give notice of their intention and templates of this letter can be found online: https://www.mind.org.uk/media-a/3978/letter-discharging.pdf .
During the 72 hours, the Responsible Clinician can still use their discharge powers to discharge the patient.
The 72 hours starts running from when either:
- The letter is delivered at that hospital to an officer of the managers authorised by the Managers to receive it;
- The letter is sent by prepaid post to the Managers; or
- By internal mail, with the Managers’ prior agreement.
The patient’s Responsible Clinician has the power to prevent discharge by issuing a barring certificate/order. The Responsible Clinician must certify that if the patient were to be discharged, then they would be likely to act in a manner dangerous to other persons or to themselves. This is the ONLY basis for preventing discharge. This is a higher threshold for the Responsible Authority to prove than the risk criteria under Section 2 and Section 3.
If the Responsible Clinician does not issue a barring certificate within the 72 hours, then the patient would be discharged from Section.
If the Responsible Clinician issues a barring certificate, then the Hospital Managers must consider holding a review, more commonly known as a Hospital Managers’ Review Hearing (HMRH). The Hearing will comprise of a minimum of 3 Hospital Managers who will hear the evidence of the Responsible Authority. The Responsible Authority will put forward their evidence as to why they consider that if the patient were to be discharged, they would be likely to act in a manner dangerous to other persons or to themselves – the “dangerousness criteria”.
If the order for discharged is barred, the Nearest Relative cannot order discharge for a further 6 months from the date of the barring order.
Please be advised that, if the Nearest Relative has exercised their right to request discharge without due regard to the welfare of the patient or the interests of the public, or is likely to do so, then this may lead to displacement proceedings.
Rights to Apply to the Tribunal
The Nearest Relative’s right to apply to the Tribunal following a barring order will depend on the section that the patient is subject to:
If the patient is detained under Section 2, the Nearest Relative does not have the power to make an application to the Tribunal.
Section 3 and Community Treatment Orders
If the patient is detained under Section 3 or is subject to a Community Treatment Order (CTO), the Nearest Relative will have the right to apply to the Tribunal within 28 days of the date of the barring order. The Tribunal must discharge the patient within the hearing if they are not satisfied that the “dangerousness criteria” are met, as above.
Section 7 Guardianship
In the event that the patient is subject to Section 7 Guardianship Order, then the Nearest Relative can order discharge immediately as the Responsible Clinician does not have the power to issue a barring certification.
If the patient is detained under Section 37(n) (an unrestricted Hospital Order), their Nearest Relative can apply to the Tribunal periodically in within the same eligibility as the patient.
Section 37 Guardianship Order
If the patient is subject to Section 37 Guardianship Order, the Nearest Relative can apply to the Tribunal within the period of 12 months beginning with the date of the Section and in any subsequent period of 12 months
Displaced Nearest Relatives
A person who is no longer a Nearest Relative (for example, if they have been displaced following objection or exercise of discharge power) can apply during each 12-month period after displacement.
Representation for Nearest Relatives
It is possible for a Nearest Relative to be represented at Hospital Managers’ Review Hearings and Tribunal Hearings under Legal Aid Funding. This will be subject to a means test unless the Nearest Relative has applied for a Tribunal or seeks advice on applying for a Tribunal, in which case the assistance would be non-means tested. If you would like to be represented and you are unsure if you would be eligible for Legal Aid Funding, please contact a member of the team who will be happy to discuss this with you.
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 IJefferson-Grant@biscoes-law.co.uk.