The Nearest Relative

What does the term "Nearest relative" mean? Nearest relative is a specific legal term defined in Article 32 of the Mental Health (Northern Ireland) Order 1986 and the role is one of the major safeguards for the rights of someone who is or may be subject to compulsion under the Order.

The Order gives a patient's nearest relative a number of important rights in relation to detention, discharge and being informed or consulted when certain actions have been taken under the Order or when these are being proposed. The role of a nearest relative is limited to these rights and powers under the Order. What is the difference between nearest relative and 'next of kin'? Many people confuse the term nearest relative with 'next of kin'. It is important to note that the nearest relative and the 'next of kin' may be two different people. The next of kin is usually a relative or close friend chosen by someone soon after they have been admitted to any hospital while a nearest relative is the person identified with reference to Article 32 of the Order.

The nearest relative will not necessarily be the person identified by the patient as their next of kin and indeed the patient has little control over who will be seen as the nearest relative. However, recent judicial decisions have considered the patient's Article 8 Rights under the ECHR in this context, and determined that, in certain circumstances, a patient's wishes in refusing to accept the nomination of a nearest relative as defined in the legislation may be respected.

In England, Wales and Scotland mental health legislation has been revised as a result of these rulings. It is hoped new legislation in Northern Ireland will address this issue. As a result of this case law, the ASW is allowed, in some circumstances a degree of flexibility in who can be considered as the nearest relative¹. What rights does the nearest relative have ? The nearest relative has a number of rights under the Order. These include:

• The right to make an application for admission for assessment Article 5.
• The right to assistance in making the application and in conveying the patient to hospital if necessary.
• The right to request an ASW assessment (Article 40) and to reasons, set out in writing, if the ASW declines to make such an application.
• The right to consultation with the ASW as soon as is practicable before and
  following the application. The nearest relative also has the right to information
  regarding why an application is being considered and the effects of making the
  application. LINK TO Nearest Relative Information Leaflet (customised for Belfast Health and Social Care Trust)
• The right to object to the application
• The right to request that the detained patient be discharged from detention or guardianship. If the nearest relative disagrees with his relative's detention in hospital or guardianship he can:
• Authorise a doctor of his choice to visit and examine his relative in private for the purpose of advising about discharge. That doctor must examine the documents relating to their detention and treatment.
• Request that the patient be discharged from detention. This request must be made in writing to the detaining Health and Social Care Trust, giving 72 hours notice or 96 hours at weekends. However the RMO with responsibility for the care and treatment of the patient can overrule the request. In this event the nearest relative must be officially informed of this decision.(Article 14) Internal Form 5 and 6
• The Nearest relative can also appeal to The Mental Health Review Tribunal for their relative to be discharged from detention. This can be done within the first 28 days from the date on which he has been informed that his request for the discharge (see above) has been overruled.

The Mental Health Review Tribunal, Bedford House,16-22 Bedford Street, Belfast. BT2 7FD Tel: . e mail:

• The right, subject to the patient's permission, to copies of any written information given to the patient. Article 27 (5)
• The right to 14 days prior notice of an examination of the patient by two medical practitioners with a view to renewal of detention for treatment. Article 13 (4).
• The right, if practicable, and with the patient's agreement, to be informed of the discharge of the patient from detention at least 7 days prior to the date of discharge. Article 117 (1)

1 Case Law - Following a judgment, R (E) v Bristol City Council (2005) EWHC 74 (Admin) in which the Judge involved, Bennet J., considered the duty of the ASW to consult with the nearest relative and the rights of a patient under Section 3(1) of the Human Rights Act 1998, ASWs can interpret the words "practicable" and "reasonable delay" in a way that takes into account the person/patient's "wishes, health and well being".Can the nearest relative intervene in the detained patient's treatment?

No. A patient who is detained under the MHO may be treated without consent. There is no power under the MHO for the nearest relative to intervene in a patient's treatment whilst the patient is detained in hospital. If the nearest relative is unhappy about the treatment being given to their relative, they should initially discuss this with the RMO. If they are still unhappy, they can make a formal complaint using the relevant Trust's complaint procedure. If this action fails to produce a satisfactory outcome, then it is possible to contact the RQIA.

How is the nearest relative identified? The nearest relative is strictly defined with reference to a list set out in Article 32 of the Order. Certain relations are treated as relatives under the Order and these are listed in groups or pairs, as follows:

• Spouse* (Husband or wife). If the marriage is broken up and the spouse is no longer living with the patient – that person is disregarded
• Child (son or daughter)
• Parent (father or mother)
• Brother or sister;
• Grandparent;
• grandchild;
• uncle or aunt;
• nephew or niece.

The nearest relative is the first person listed who is providing care to the person with a mental disorder.

For example, if the patient lives with an uncle or aunt, that person will be the nearest relative even if the patient has a mother or father. Similarly, if the patient lives with a younger brother or sister, that person will be the nearest relative even if the patient has an older brother or sister, or a parent.

* The term "spouse" includes a person who is living with the patient as if he or she were the spouse of the patient or has been or had been so living for a period of not less than 6 months. Persons living in a same sex relationship can also be included in this category². However civil partnerships are not treated as marriage for this purpose.

2 Case Law - (R (SSG) v Liverpool County Council 22 October 2002)

What if no one in the list above was/is caring for the patient? If no one on the list is caring for the person then the nearest relative is identified by starting at the top of the list and working down. If there is a husband or wife, that person will be the nearest relative. If there is no one in this first group, it is necessary to look in the second group. If there is no one in the second, then the third group should be used, and so on.

If there is more than one person in each group or pair who could be the patient's nearest relative, the eldest takes priority as nearest relative. For example, if the rules in Article 32 indicate that a parent is the patient's nearest relative and both parents are still alive, then it is the elder of the two who is the nearest relative. If Article 32 indicates that the nearest relative should be a brother or sister, it is the oldest brother or sister who is the nearest relative.

The nearest relative must be over 18, unless they are the spouse or parent of the patient. For a child, a mother will always be the parent under the Order but the father will only be considered as the nearest relative if he has parental responsibility.

A person listed above will not be considered as the nearest relative if they are living outside of the UK, unless the patient also ordinarily lives abroad. For example, if the rules in Article 32 indicate that the eldest brother should be nearest relative but that brother lives abroad, the eldest brother or sister still living in the United Kingdom, Channel Islands, Isle of Man or Republic of Ireland will be the nearest relative.

How is the nearest relative of a child or young person identified? In the case of children and young people the nearest relative will be:

• The older parent, if both are caring and share parental responsibility.
• The Health and Social Care Trust", if the patient is a child or young person subject to a care order (Article 50), with parental responsibility, within the meaning of the Children (Northern Ireland) Order 1995
• The person named in the Residence Order
• The Guardian in relation to minors under guardianship

In the case of a Ward of Court, no action is allowed without permission of the Court.

The detaining Health and Social Care Trust has a duty under the Order to advise DHSSPS when a child or young person has been admitted to and detained in hospital. What can a person/patient do if he or she objects to who is considered as their nearest relative ? At this time a person/patient has no right to object to who is considered as their nearest relative. What happens if the patient doe s not have a nearest relative? In this situation the ASW can proceed without consultation. The ASW may also apply to County Court to be appointed as the nearest relative.

Can a County Court appoint a nearest relative for a person/patient?

Yes, in some circumstances the County Court has the power under Article 36 to make an order appointing a nearest relative to carry out functions under the Order following an application to the Court by:

• Any relative of the patient:
• Any other person with whom the patient is residing (or if the patient is an inpatient in hospital, was last residing before he was admitted): or
• An approved social worker (the responsible authority).

On what grounds can the nearest relative be appointed?

The Court can appoint the "applicant" on any one of the following grounds:

• There is no nearest relative within the meaning of the Order or it is not reasonably practicable to ascertain if the patient has a nearest relative or;
• The nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness or;
• The nearest relative of the patient unreasonably objects to the making of an application for assessment or guardianship application in respect of the patient; or
• The Nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or guardianship under Part II or is likely to do so.

What if the nearest relative does not want to exercise their rights? Under Article 35 the nearest relative of a patient who is liable to be detained or subject to guardianship may assign their functions under Part II to any person who indicates in writing his willingness to exercise those functions Form 20. LINK TO FORM 20Can a nearest relative be prevented from acting in this role?

Yes. Under Article 36 of the Order a county court, on application, can order that the functions of the nearest relative be assigned to the applicant or a person specified in the application if the court believes that:

• The nearest relative is incapable of acting as such by reason of mental disorder or other illness or
• The nearest relative unreasonably objects to the making of an application for assessment or guardianship application or
• The nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or guardianship under this Part, or is likely to do so.

What if the person has no nearest relative within the meaning of ArtI cle 32 of the Order? In this event the approved social worker can proceed with his assessment and make an application if necessary. An application can also be made to a county court under Article 36 by any relative of the patient, any other person with whom the patient is residing or an approved social worker to have that person appointed as the nearest relative on the grounds that the person has no nearest relative within the meaning of the Order or that it is not reasonably practicable to ascertain whether the person has such a relative or who that relative is.