The Nearest Relative

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;
  • Grandparent;
  • Grandchild;
  • Uncle or aunt;
  • Nephew or niece.

But! –

  • 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”.

And –

  • 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

Custody1When 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?!!

CONTINGENCY PLANS

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 –

WMPThe 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

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– won a World of Mentalists #TWIMAward for the best in mental health blogs

ccawards2013 was highlighted by the Independent Commission on Policing & Mental Health
– was referenced in the UK Parliamentary debate on Policing & Mental Health
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6 thoughts on “The Nearest Relative

    1. Have been aware of this for a while as I found that out later! – was not mentioned to us at the time so no application made. Is that any kind of ethical conflict if the “right” application is section 3, but section 2 chosen to “get around” an NR objection? Or does it frequently happen?

      1. no at least in my experience not only an ethical issue but potentially a legal one as it would go against the Code of Practice i have only once had a consultant suggest it to me and i let him know in no uncertain terms what i thought of that idea, generally i’ve found medics more keen on going for a 3 than a 2 compared to AMHPs but more to do with their lack of understanding on the principle of least restrictive and that they are more comfortable with enforcing treatment on a 3 then considerations of nearest relatives rights

  1. Hi
    This is one of the problems sometimes created by community teams who wish to seek an application under s3 of the Act. However, should the team wish to consider an admission under s2, the AMHP can make the application despite the objection of the nearest relative. This is because the power of the nearest relative to object to detention under the MHA applies to s3 not to s2, and inaccordance with the Act, the AMHP need only inform th nearest relative of the application being made under s2 rather than having to consult the nearest relative under s3.

    The Code offers some guidance as to the appropriate use of s2 or s3. My personlly view is that the route into compulsion ought to be via s2 unless there are very clear reasons for using a s3. Unfortunately many doctors will jump to a s3 admission as they wrongly assume that treatment cannot be given under s2, or because they fail to consider the consequences of a nearest relative exercising their authority under s3…………..a necessary patient safeguard given by Parliament.

    However, the dilema for the AMHP is that once doctors have submitted their medical recommendations for a s3, the AMHP is not at liberty to request that the doctors change these recommendations to a s2 because their is a suspicion that the nearesy relative may object.

    So, much better to admit to hospital under a s2, and then consider displacing the nearest relative under s29.

    But, if the admission is under s3, and the AMHP needs to displace immediately, the AMHP could approach the court and request that a judge authorise admission pending a full hearing at a later date. This can be done fairly quickly, certainly within the same day. But much better to go for a s2……………..especially for an admission from the community.

  2. http://nationalpsychosisunitsurvivor.blogspot.co.uk/
    I have challenged the shocking care my daughter had at the above hospital and the team tried to replace me as Nearest Relative when I did not give an answer to agreeing with Section 3. I did not give an immediate answer because my daughter agreed to remain voluntarily. She was so drugged up she could not have been a risk to anyone and did not even know they had given her Metformine for Diabetes and Clozapine which had always been against her wishes. Several times emergency doctors had to be called out to her. The team have ganged up, they have imposed escorted leave and supervised phone calls and tried to make out this was in accordance with my daughter’s wishes. Things are going to court. They replaced her solicitor with a Welsh firm and she was so confused she did not know why she had all these letters. At the Bethlem her face was absolutely covered with bruises and I have not had an explanation and the ward manager asked me when it happened. This is a place where staff threatened to have me arrested on several occasions and accused me of being aggressive and threatening but each time I had witnesses present who were shocked and disgusted at what they saw. This treatment of exclusion and sanctions has continued at Cambian Four Star Wards in Wales where she was hasily transferred within a day’s notice – it could have been because patients staged a demonstration outside this horrific place in support. It is sad that this kind of abuse can go on in this country. My daughter said “there is no place like home” she texted me “I pray I will be allowed home for Xmas”. Contact is supposed to be banned and she is being discouraged from contact with me without grounds. They refuse to say why and it is not because I have told her to stop the drugs they have forced on her even though I am not happy. I am not h appy because there are no proper assessments and I am challenging things at Government level right now:

    “Without lab testing, you cannot be certain of low folate. She may have a metal-metabolism disorder that results in extreme copper elevation and a severe Cu/Zn imbalance. These persons do not improve on SSRI antidepressants, receiving only nasty side effects. It could be dangerous to provide folate therapy if she is undermethylated with extremely-high serum copper. It would help define matters if she could have the following tests: serum copper, serum ceruloplasmin, and plasma zinc. ”

    I want a proper assessment by Dr William Walsh done and I am willing to pay for such an assessment. You need to look into the research of Peter Bennett (Retired Police Superintendant of Forensics). He carried out initial tests and they were ignored by the NHS.

    I am also requesting the Open Diaglogue as in Finland (Tornio). You would have less to do if this was in place and this all points to the fact that everything needs to be changed and there is much unhappiness in the current system and your high workload in respect of mental health patients is simply because nothing is working and no proper assessments given – someone could be intolerant to the drugs and noone is listening to the patients and I as a mother and Nearest Relative want something done about it at Government level.

    I think it is brilliant that you are taking such an interest and perhaps the Police can also support Open Dialogue which so many patients and mothers like myself want to see in place.

    It is not a place of safety – the acute wards and in addition I would like to see Chy Sawel, Soteria and Root and Branch Project set up but the Crisis Team is failing so many and that is where the patients themselves shouold be involved such as the wonderful group of ex patients that I myself know and meet up with regularly. This requires funding and there would be much savings in the budget of the Police if decent care like this was in place.

    1. 14 January 2013
      Dear Mental Health Cop and Susan Bevis

      I am very concerned about the way patients are treated in our Mental Health System. I have been informed by the Mental Health facility that I am NOT “next of kin” because there is NO Next of Kin in the Mental Health Act 1983 [as amended 2007] and therefore will not respond to me as their patient is “very much alive”.

      There are some 56,000 patients held under Section of the MHA1983 annually according to the Department of Health, and yet the Department of Health told me on 6 July 2012 that yes, I could make complaint to the Mental Health Trust and to the Primary Care Trust and that they had to answer my complaints.

      The PHSO however has informed me that they refuse to consider my complaints.

      So where do I go from here?

      I have complained to my MP and he is doing a wonderful job but so far my relative is still sectioned and no clear release date, and yet I have protested that this is a SYSTEMS failure by the Government that keeps this legislation extant. It is not the fault of the Trust which operates the system, although I do believe that there is a mistaken belief by them that they cannot discuss with me my relative and that only the Nearest Relative, as per this article, can be consulted.

      This seems barmy.

      I hope that the law changes and that all patients will be given total access to their medical and social and police records so that they remove the mystery and mystique from the whole process, and instead get transparency and co-operation. For there is much that is said and done in the name of the patient and the patient’s “Best Interests” and that Mental Capacity can be assumed not to be present, but this again goes against the Mental Capacity Act 2005 where capacity has to be assumed to be present as the default position. This particular act to me has the makings of great uncertainty and much confusion has come from it, with two judgements in the space of a short while with one person with eating problems was allowed to starve herself to death by order of the judge, and another similar case where a person was not allowed to starve herself to death by order of a different judge, but both used the same Act.

      I feel that this Mental Capacity Act 2005 was made with the best of intentions but in practice can lead to dreadful consequences, and I believe that it should be repealed.

      For it is supposed to allow a person to make their own decisions, but there has been anecdotal evidence of social workers and clinical staff using it to show that because the patient did not agree with their own views, that this therefore meant that the patient was not capacitous. This is not right.

      But it is a stupid law as it is not clear, just as Kate Lumsden, Counsel, wrote “prosecutors beware”. In my opinion, the Mental Capacity Act 2005 is “not fit for purpose” and should be removed from the statute book and replaced with an Act that is precise and not open to such wide and differing interpretation.

      I do hope that you succeed in helping your daughter, Susan Bevis. Good luck and keep on keeping on and get the laws changed so that families can be actively encouraged to help their loved ones in their hours of need.

      Best wishes

      Rosemary

      Rosemary Cantwell

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