The term "nearest relative" holds a unique significance within the context of the Mental Health Act of 1983. It designates a family member with specific rights and duties concerning your care, particularly if you are:

• Admitted to a hospital under sections 2, 3, 4, or 37,
• Subject to a community treatment order, or
• Placed under guardianship.

It's crucial to note that "nearest relative" differs from "next of kin," as the latter does not possess any rights under the Mental Health Act.

This designation acts as a crucial protection for individuals under the Mental Health Act, ensuring that your rights are safeguarded by someone you trust during times of illness.

Identifying Your Nearest Relative

The Act precisely outlines the hierarchy determining your nearest relative, with the highest-ranking family member on this list assuming the role.

Priority List for Nearest Relative Designation

• Spouse, civil partner, or long-term cohabitant (over six months).
• Son or daughter.
• Parent (including unmarried fathers with parental responsibility).
• Sibling.
• Grandparent.
• Grandchild.
• Uncle or aunt.
• Nephew or niece.

Criteria include the individual being over 18 (with certain family roles as exceptions) and residing in the UK, Channel Islands, or the Isle of Man, or abroad if that's your usual residence.

Special Circumstances

• For minors under care orders, the local authority serves as the nearest relative, barring a spouse or civil partner.
• A permanent separation from a partner excludes them from being your nearest relative.
• Among equals, age dictates precedence; for example, an elder sibling would take priority.
• Living arrangements and caregiving roles can influence the hierarchy, potentially elevating a caregiving relative above others.
• Non-relatives who've cohabited with you for over five years are considered, placed last on the list.
• Half-blood relatives are eligible, though full-blood relations are prioritised.
• Adoptive parents are eligible, whereas step-parents are not.

Should there be no suitable person on the list to serve as your nearest relative, you have the option to petition your local county court for the appointment of one. This appointed individual could be a friend or an approved mental health professional, following a procedure akin to displacement.

The Rights of Your Nearest Relative Under the Mental Health Act

The Mental Health Act confers specific rights on your nearest relative regarding your care and treatment. These rights are integral to ensuring your welfare and include the ability to:

• Initiate your admission for treatment or guardianship.
• Challenge your admission or placement under guardianship.
• Secure your release if you've been admitted, and appeal to the Mental Health Tribunal if release is denied.
• Request the support of an independent advocate for you.
• Be involved in consultations or receive information about your care if you're admitted.
• Nominate another person to assume the nearest relative role.

Rights and Procedures for Nearest Relatives under the Mental Health Act

Requesting a Mental Health Assessment

Your nearest relative has the ability to request a mental health assessment for you by contacting local social services or the community mental health team. While these requests are considered, social services are only obligated to provide reasons for refusal in writing if they decide not to proceed with sectioning.

Initiating Sectioning or Guardianship

Concerns about your mental health allow your nearest relative to seek intervention by contacting local authorities to either section you or place you under guardianship. Typically, an approved mental health professional (AMHP) would carry out the application process.

For Immediate Assessment or Treatment:

• Section 2: Utilised for assessment purposes, especially when medical professionals are unfamiliar with your case or you are in a different locality. Your nearest relative needs to complete a specific form and secure agreement from two doctors, one of whom should be familiar with you (e.g., your GP), with at least one being a section 12 approved doctor.
• Section 3: Similar to Section 2, but with conditions tailored for those already receiving mental health services.
• Section 4: For emergency situations requiring immediate hospital admission, valid for up to 72 hours. Requires a form completion and a recommendation from one doctor familiar with your case.
• Guardianship: For cases manageable within the community, albeit seldom used. Procedure mirrors those of sections 2 and 3, with the inclusion of two agreeing doctors.

Objecting to Sectioning or Guardianship

Your nearest relative has the right to oppose your sectioning under certain conditions, particularly sections 3 or guardianship. They must convey their disagreement to the AMHP , either verbally or in writing. However, if deemed unreasonable, the AMHP may seek to appoint a different nearest relative (known as displacement). Section 2 and 4 admissions can proceed despite objections.

Discharging from Hospital

Your nearest relative can request your discharge from hospital if you are detained under sections 2, 3, or 4, or are under a community treatment order or guardianship stemming from section 3. There's a mandatory 72-hour waiting period to allow for an assessment by the responsible clinician, who must then argue against discharge if deemed necessary for safety.

Applying for a Mental Health Tribunal

The right to apply for a Mental Health Tribunal varies based on the specific section of detention and any displacement of the nearest relative. The Tribunal Service provides detailed guidance for nearest relatives looking to understand their rights and the application process.

Information Sharing with Your Nearest Relative

Your nearest relative is entitled to receive specific details about your mental health care under the Mental Health Act. This includes information on:

• Any applications for your sectioning,
• The reasons for your detention
• Your rights regarding sectioning, Community Treatment Orders (CTO), or guardianship
• Notifications about a CTO or guardianship order
• Any changes or renewals to your section, CTO, or guardianship
• Notifications regarding your discharge

Circumstances Limiting Information to Your Nearest Relative

There are situations where your nearest relative may not be informed or consulted:

• If locating them would be time-consuming
• They are currently unwell
• Communicating with them could negatively impact your well-being
• Identifying your nearest relative proves challenging

You hold the right to request that details of your care or treatment not be disclosed to your nearest relative. This can include not informing them about your discharge plans. Such requests should be honored unless they could significantly impact your safety or well-being.

Transferring Nearest Relative Powers

Your nearest relative can delegate their responsibilities and rights to another willing individual. This is actioned through a written notice to the hospital, specifying the transfer of their role. The original nearest relative can reclaim their powers at any time with a written request.

Changing Your Nearest Relative

You have the option to request a change in your nearest relative, known action and is often complex and potentially costly, making specialist legal advice highly advisable.

Reasons for changing your nearest relative may include:

• Their inability to perform due to health reasons
• Unreasonable objection to a section 3 or guardianship application,
• Inappropriate attempts to discharge you without full consideration of the circumstances
• General unsuitability for the role
• The absence of a nearest relative from the prescribed list
• Practical difficulties in identifying them.

The duration of the displacement depends on the specifics of the court order, which may specify an end date or conclude automatically upon your discharge from the section.

Legal Process for Changing Your Nearest Relative

To initiate a change, you'll need to complete the N208 claim form for the county court, labeling yourself as the 'claimant' and your current nearest relative as the 'defendant'. This process follows the Part 8 Civil Procedure Rules, requiring precise information about your nearest relative, your reasons for displacement, proposed replacements, and supporting legal and medical evidence.

During the legal proceedings, your current nearest relative retains their status unless an interim order appoints someone else temporarily. The final decision rests with a circuit judge, and the hearing will be conducted privately.

Given the complexity of these rules, it's essential to consult with a legal professional specialising in mental health law. An application fee is applicable, with potential concessions based on your financial situation. The application should be submitted to the county court in your area or the court that issued the original order if you're seeking an amendment.

Post-Application Process

Once your application is submitted, your nearest relative will be notified unless specific circumstances justify a private ('ex parte') hearing. If they contest the displacement, they can provide evidence to counter your application. In some cases, a litigation friend may represent them, especially if they're unable to act due to mental health issues.

The hearing may occur in court or an alternative setting, possibly involving direct communication with the judge, to ensure they have all necessary information to make an informed decision. If you are currently detained, the hospital is responsible for facilitating your court attendance.