Delegation by existing nearest relative
Under Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008, regulation 24 the nearest relative as defined by s26 can delegate the exercise of his functions to another person, subject to the disqualification rules and notification conditions.
The notification conditions (reg 24(7)) are that following must be notified immediately:
- (a) the patient;
- (b) in the case of a patient liable to be detained in a hospital, the managers of that hospital;
- (c) in the case of a patient subject to guardianship, the responsible local social services authority and the private guardian, if any;
- (d) in the case of a community patient, the managers of the responsible hospital.
The following people are disqualified (by reg 24(1)):
- the patient;
- anyone disqualified from being the nearest relative in s26(5);
- a person who has been displaced under s29.
A delegation can be revoked subject to the same notification conditions (reg 24(5)).
Delegations and revocations must be in writing (reg 24(2), (5)) and can be transmitted by electronic communication if the recipient agrees (reg 24(8)). They take effect upon their receipt by the person authorised (reg 24(4), (6)).
The functions which are delegated are (by reg 24(3)):
- those conferred under Part 2 (including the power under s23 to order discharge);
- those conferred under s66 (applications to tribunals). Note that s37 patients apply to the Tribunal under s69, so this right cannot be delegated.
A simple form along the following lines would suffice:
DELEGATION OF FUNCTIONS OF NEAREST RELATIVE
My name is [NAME] of [ADDRESS]. To the best of my knowledge and belief I am the nearest relative, within the meaning of section 26 Mental Health Act 1983, of [PATIENT’S NAME].
I hereby delegate my role as nearest relative to [NAME] of [ADDRESS].