Nearest Relative Rights Under the MHA 1983

The nearest relative under the MHA 1983 is determined by the following hierarchy (Section 26). The nearest relative is the person highest on this list who is:

1. Husband, wife, or civil partner
2. Cohabitant (lived with for at least 6 months as if a spouse/civil partner)
3. Son or daughter
4. Father or mother
5. Brother or sister
6. Grandparent
7. Grandchild
8. Uncle or aunt
9. Nephew or niece

Where there are competing relatives at the same level (e.g., two adult children), the elder takes precedence. An ordinary friend or partner of less than 6 months does not qualify as nearest relative under the MHA 1983, even if they are the patient's closest relationship in practice — though since 2007, patients can nominate a different person to act as their "nominated person" for some purposes.

The nearest relative can apply for a patient's discharge from Section 2 or Section 3 by giving the hospital managers at least 72 hours' written notice. This is a significant power — in principle, the nearest relative can unilaterally secure a patient's discharge.

However, the discharge can be blocked by the Responsible Clinician. If the RC considers that the patient, if discharged, would be likely to act in a manner dangerous to themselves or other persons, the RC can issue a "barring report" (Section 25) within the 72-hour notice period. If a barring report is made:

• The patient cannot be discharged by the nearest relative for 6 months.
• The nearest relative then has the right to apply to the Mental Health Tribunal for the patient's discharge.

In some cases, the person who technically qualifies as nearest relative is inappropriate — for example, where they are the source of abuse, or where the relationship has broken down. The following parties can apply to the County Court to appoint a different person as nearest relative (or to displace the existing nearest relative):

• The patient themselves
• The AMHP
• Any relative of the patient
• Any person with whom the patient resides or has resided

Grounds for displacement include: the nearest relative is not suitable to act; they have exercised their powers without due regard to the welfare of the patient or the interests of the public; or they are incapable of acting due to illness, mental disorder, or being out of the UK.

AMHPs must consult the nearest relative before making a Section 3 application, unless it is not reasonably practicable or it would involve unreasonable delay. Key points:

• If the nearest relative objects, the AMHP cannot proceed with a Section 3 application.
• For Section 2, the AMHP must notify the nearest relative but does not need their agreement — the nearest relative cannot block a Section 2.
• When a patient is detained, the hospital must inform the nearest relative unless the patient requests otherwise (or the nearest relative cannot be found).
• The nearest relative must be given information about the patient's rights, including access to the Mental Health Tribunal.