This post is not substantively about the police but it relates to something that has come up in queries to me as a result of running this site. Also, there is one particular police situation I came across as a custody sergeant where a “Nearest Relative” emerged from the mist of a difficult investigation and caused a real procedural difficulty for the police management of an offender.
Your Nearest Relative is determined by section 26 of the Mental Health Act 1983 and they have various important roles to play with regard to MHA process. Chapter 33 of the Reference Guide to The Mental Health Act 1983 goes into detail about this. However, for extremely simplistic purposes regarding situations facing police officers, the Nearest Relative of anyone potentially subject to the Mental Health Act has certain roles and rights to play, with regard to admission or care. A Nearest Relative may –
- Apply for admission to hospital under the Mental Health Act, or for guardianship
- Object to an AMHPs application for admission or guardianship
- To discharge patients from hospital (with certain exceptions)
- Expect to receive certain information with regard to a patient.
The NR role is fulfilled by the first person from this list –
- Husband, wife or civil partner;
- Son or daughter;
- Father or mother;
- Brother or sister;
- Uncle or aunt;
- Nephew or niece.
- If more than one person occupies the same ‘rank’ in the list, the eldest takes precedence.
- Relatives have to be at least 18 years of age – unless they are a parent, husband, wife, civil partner, or living with the patient for at least 6 months as the husband, wife or civil partner.
- Adopted children count as natural children.
- Half brothers / sisters count as any other brothers / sisters.
- Illegitimate children are always treated as if they are the legitimate child of their mother; and of their father only if he has parental responsibility for them, as defined in section 3 of the Children Act 1989.
- A “whole-blood relation” will take precedence over a “half-blood relation”.
- A relative who lives with, or cares for, the patient, takes precedence over other relatives.
- If you are married or in a civil partnership, but separated or abandoned by your partner, then that person cannot count as your nearest relative.
- If a relative permanently lives abroad, then they don’t count.
- If you do not have a nearest relative on that list, but have lived with someone else other than as a husband, wife, or same-sex partner, then they would count.
Some situations are very easy to work with. I am my wife’s Nearest Relative and she is mine. Others are far more complicated and AMHPs can have great fun trying to establish it all. It has been known that AMHPs proceed with legal proceedings under the MHA in the belief that a particular relative fulfils this role, only to learn of new information later that establishes otherwise. As the requirement upon AMHPs is that they take reasonable steps and act “to the best of their knowledge of belief”, it doesn’t necessarily invalidate decisions or legal applications.
NEAREST RELATIVE IN POLICE CUSTODY
When I was a custody sergeant, my team arrested a young man for an offence. It became obvious in the police station that he was quite unwell. As it turned out, he was well known to mental health services and after a Mental Health Act assessment in custody, the AMHP had indicated that they wished to apply for admission to hospital under s3. As part of the requirements of an assessment for admission under s3, the AMHP must, under s13, take steps to consult with the Nearest Relative and in this particular case, it was the young man’s grandfather. His father and various siblings of greater ‘rank’ existed, in terms of the list outlined above, but as the man lived with his grandfather on a permanent basis, this trumped everything else for the AMHPs purposes. However, his grandfather was either unwilling or unable to come to the police station to act as the man’s appropriate adult, so his brother had turned up to do this. (There is no such requirement to consult the NR for admission under s2 MHA.)
When the AMHP contacted the man, the grandfather objected to hospital admission causing the brother some upset as he agreed with the need for admission and was relieved that his brother would not be prosecuted. I distinctly remember the AMHP and a the CPN approaching the custody desk and informing me. “The grandfather is his nearest relative and he has objected to the man’s admission, so there’s nothing more we can do to admit him.” I will confess: I was absolutely stunned.
Here we had three experienced mental health professionals saying that the man required inpatient treatment and care for serious mental illness and the grandfather’s objection trumped it. When I started thinking that the offence involved was a violent one – not the most serious things you’ve ever heard of, but certainly not trivial and involving a substantive victim – I wondered what on earth we do next.
The man had been assessed by the police surgeon in custody as unfit to be interviewed because of his illness and now he couldn’t be admitted to hospital. So what on earth do we do now?! Do we just release him into the street knowing he is seriously mentally ill?!!
Of course, the AMHP didn’t just walk out! There was a detailed conversation about what they could arrange in terms of follow-up if the man ended up progressing into the criminal justice system and what could happen if he did not. There were ‘bailed’ and ‘remanded’ versions of the contingency “plan B” for both the police station and the courts, dependent upon what we did next.
Although we never seriously considered interviewing the man, we asked the force surgeon to advise again, in light of the MHAA and subsequent developments, whether an interview for assault with an appropriate adult and solicitor would be possible. He advised it would not – even if officers just provided an opportunity to the suspect to explain what happened without specifically questioning him, there was far too much scope for suggestibility and / or for false confessions, as well as for a serious impact upon his already fragile mental health. This is what we thought he would say, but we wanted to be able to tell the CPS that we had asked for this view, as we were going to have to seek his prosecution. << This is awful, isn’t it? Let me explain –
The first duty of the police service is to prevent crime; its second duty is to bring offenders to justice. We have a duty to protect life / property and maintain the Queen’s Peace. It was considered by all of us involved, that in the absence of an application for admission to hospital, these objectives were at risk. As we considered that there was sufficient evidence to charge the suspect with offences – because of multiple witnesses, including the initial police officers to arrive – we took the view that to prevent further offences and to safeguard the suspect himself, we should seek prosecution.
If you are wondering how such a potentially heartless decision could be reached, don’t forget that this was another example of the least worst option in practice. No-one wanted to do this, but on balance it was better than the one other available alternative – letting him walk out of the police station. At least we were taking a kind of positive action, keeping him and others immediately safe and presenting certain options to the court to further manage this. Bail after charge is usually denied because of further criminal risks of offending or failing to turn up at court or interfering with justice or witnesses – it may be also be denied to keep a suspect safe, either from themselves or others.
The AMHP had indicated earlier that he intended to initiate the process to “displace” the grandfather as Nearest Relative. This can be done via the County Court under s29 MHA but it is not something that can be done at a weekend in the timescales which apply to a police investigation in custody.
I admit to being surprised that the CPS authorised the man to be charged with assault and possession of a weapon but having heard the circumstances, they agreed on how important it was to prevent further risks and safeguard the man. Having been charged and remanded in police custody for court, he appeared before the Magistrates and for a want of other responsible and legal options, he was assessed and supported by the court diversion nurse. He was, unfortunately remanded to prison initially, but was subsequently moved to the hospital estate and the CPS decided to discontinue the prosecution. I will have to assume that the AMHP either succeeded in displacing the grandfather as Nearest Relative or that they had managed to persuade him that inpatient treatment was in his grandson’s interests.
I pick this anecdote about Nearest Relatives, frankly, because it is my only one that has police relevance! Conscious that it could be perceived as a negative portrayal of this important legal function, it is right that I end by reminding you that the role of the NR can also be a very positive and important thing under the MHA, both in terms of NRs safeguarding, advocating and agitating for our relative’s rights and wellbeing or in making objections – perhaps validly – about what they may perceive as unnecessary admission or enforced treatment.
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
The Mental Health Cop blog
– won the ConnectedCOPS ‘Top Cop’ Award for leveraging social media in policing.
– won the Digital Media Award from the UK’s leading mental health charity, Mind
– won a World of Mentalists #TWIMAward for the best in mental health blogs
– was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
– was commended by the Home Affairs Select Committee of the UK Parliament.