Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
Previously the patient had no say in who was his nearest relative. In some circumstances this breached Article 8. The patient can now apply under s29 to displace his nearest relative on the existing four grounds, plus the new ground that the NR is unsuitable. The new ground is also available to AMHPs and others who could previously apply for displacement. Section 66 (applications to MHRT) is also amended.
Extract from Explanatory Notes
Sections 23-26: Patient's nearest relative
76. Sections 26-29 of the 1983 Act provide for the role of the nearest relative (NR) of patients. The 1983 Act provides a list of persons who may act in this role: the person appointed usually being the highest in that list, starting with any spouse or, if there is none, the eldest son or daughter, and so on. The NR has certain rights in connection with the care and treatment of a mentally disordered patient under the 1983 Act, including the right to apply for admission to hospital, the right to block an admission for treatment, the right to discharge a patient from compulsion and the right to certain information about the patient. NRs may not exercise their rights in respect of patients subject to special restrictions under Part 3 of the 1983 Act.
77. Section 23 introduces a new right for a patient to apply for an order displacing the NR on the same grounds available to other applicants under the 1983 Act as it stands, and on the additional ground that the NR is unsuitable to act as such. The table below summarises possible grounds for applications and who may make them. The provision also amends the basis upon which a court may make such an order. It changes the requirement that the acting NR be, in the court's opinion, a "proper person" to act as the NR to a requirement that the person is, in the court's opinion, a "suitable" person to act. Section 23 also amends section 29 of the 1983 Act to provide that where the person nominated by the applicant is, in the court's opinion, not "suitable" or there is no nomination, the court can appoint any other person it thinks is "suitable".
| Possible ground for an application | ||||||
|---|---|---|---|---|---|---|
| 29(3)(a) - the patient has no NR | 29(3)(b) - the NR is too ill to act | 29(3)(c) - the NR unreasonably blocks admission | 29(3)(d) - the NR has or is likely to discharge the patient without due regard | 29(3)(e) - the NR is unsuitable to act as such | ||
| Possible applicants | AMHP replacing ASW | Currently provided for | Currently provided for | Currently provided for | Currently provided for | New provision |
| Relative | Currently provided for | Currently provided for | Currently provided for | Currently provided for | New provision | |
| Someone living with the patient | Currently provided for | Currently provided for | Currently provided for | Currently provided for | New provision | |
| Patient | New provision | New provision | New provision | New provision | New provision | |
78. In this way, an NR who has, for example, in the past subjected a patient to physical abuse, may, upon application to the court by the patient, be removed from exercising the rights of the NR by order of the court. In the application, the patient can nominate another person to act as the NR. Unless the court finds that person to be unsuitable, or decides not to displace the current NR, the person will be made the acting NR.
79. An application for displacement can also be made by an AMHP, another relative or anyone living with the patient (or if the patient is an in-patient in a hospital, anyone with whom the patient was living before he was admitted). So long as the court orders the displacement of the current NR, then whomever the applicant nominates will be made the acting NR, unless the court finds that person to be unsuitable to act as such.
80. Section 24 introduces a new right for the patient to apply to discharge - or vary - an order appointing an acting NR. A NR displaced under the new ground will also be able to apply for such an order, but the NR must first obtain leave of the court. The court can currently appoint an acting NR only for a limited period; section 24 will allow the court to make an appointment for an indefinite period.
81. A person who has been made the acting NR retains the right to apply to have that order ended. The order displacing the NR - and appointing an acting NR - continues even when the displaced NR ceases to be the first person in the list of relatives. In these circumstances, the patient can apply to have the court order discharged. The new person at the top of the list will then become the NR.
82. A NR displaced on the new grounds that he is unsuitable to act as such can apply for the discharge of the order which displaced him as NR. However, the application will only be heard if the court first agrees. Spurious or malicious applications can therefore be stopped before the patient is brought into the process.
83. Section 25 will limit applications to the MHRT from displaced NRs, to those NRs displaced on grounds set out in sections 29(3)(c) or 29(3)(d) of the 1983 Act (see table above). A person who has been displaced as the NR because he or she is too ill to act, or unsuitable to act, will not have the right to apply to the MHRT.
Related change
Civil partners are treated as if married when determining nearest relative 1/12/07
Commencement
| Date in force | Commencement order | MHA 2007 section | MHA 1983 sections affected |
|---|---|---|---|
| 3/11/08 | Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 | 23 | s29 |
| " | " | 24 | s30 |
| " | " | 25 | s66 |
| " | " | s55, sch 11 | s29 |
Resources
Mental Health Act 2007 Explanatory Notes - page 15-16
INFORMATION
- Representation
- Civil sections and CTOs
- Criminal sections
- Aftercare
- Mental Health Tribunal
- Mandatory and discretionary references
- Nearest relative
- Legal Aid
- International law
- 16- or 17-year-old with capacity cannot be detained on basis of parental consent
- Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
- Additional safeguards for ECT introduced in new s58A
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
- Approved Mental Health Professional replaces Approved Social Worker
- Automatic reference scheme under s68 changed
- Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
- Civil partners are treated as if married when determining nearest relative
- Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
- Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
- Fundamental principles set out in Act and included in Code of Practice
- Higher penalties for offences under Act
- Hospital direction patients can no longer apply to Tribunal during first six months
- Hospital directions under s45A apply to any mental disorder
- Legal status of Code of Practice set out in Act
- Limitation to the exceptions to the duty to instruct IMCA
- Mental disorder no longer split into separate classifications
- Minor drafting error in MCA 2005 corrected
- New cross-border arrangements for leave and transfer
- New definition of medical treatment
- New Independent Mental Health Advocate scheme
- New procedure for renewal of detention
- New regulations on conflicts of interest
- New requirements for age-appropriate accommodation for children
- NHS Foundation Trusts discharge power problem remedied
- Organisation of Mental Health Review Tribunal changed
- Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
- Patients can be transferred between places of safety under s135 and s136
- Procedure for making of instruments by Welsh Ministers set out
- Reference to Local Health Boards inserted into Act
- Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
- Restriction orders can no longer be time-limited
- SOAD certificate becomes invalid when patient loses or gains capacity
- Some exclusions to definition of mental disorder have been removed
- Supervised Community Treatment replaces Supervised Discharge
- Transitional provisions until full implementation of MHA 2007
- Treatment while under SCT is covered by new Part 4A
- Coronavirus
- Courts
- Forms
- General information pages
- Glossary pages
- Legislation overviews
- Mental capacity law
- Organisations
- Other jurisdictions
- Psychiatry
- Statistics
- The Law Society
- Things to sign up for
What links here:
- JT v UK 26494/95 [2000] ECHR 133
- MHA 1983 s29
- MHA 1983 s12
- MHA 1983 s30
- MHA 1983 s66
- FC v UK (1999) 37344/97 [1999] ECHR 184