Nearest Relatives’ Rights

I took a bit of stick on social media month or three ago, for trying to help a family who were clearly at their wit’s end with worry and frustration, arising from a situation involving what they claimed was a mentally unwell relative.  It’s a slightly odd position that I’ve found myself in, being active on social media, that I’ve been approached by relatives and individuals for advice in how to access services or assessments that they think were necessary.  It’s the kind of query that I’ve seen pointed at mental health professionals, too – and whilst they’re obviously unable to give situational specific advice, I have plenty of examples of “Call your GP”, “contact the care coordinator” or “you should discuss that with your psychiatrist” etc., etc..  This post arises from my finding myself, at work and on social media, in a position where someone has found themselves in a cul-de-sac of worry and frustration, not knowing where to turn to and with just a tiny bit of knowledge of the Mental Health Act, I’ve thought, “If that were me, I’d know I’ve got rights I can exercise and opportunities I can utilise, to move this on.”  And so I’ve said so – me being me.

So it surprised me to find a modest backlash after advising what seemed to be a “Nearest Relative” that they probably were, in law, a nearest relative and that if they could confirm this, they might choose to do one or two things that could get them out of a catch-22.  I was only trying to help!

PROFESSIONAL MONOPOLIES

“It is for Approved Mental Health Professionals (AMHPs) to determine who is someone’s nearest relative – we are trained and it can be very complicated.”  Well yes, of course.  But firstly, you’ll notice the way I worded that sentence: with conditional language, subjunctives and qualification – of course it is for AMHPs to determine but we also know that when AMHPs see what they think might be crimes, they feel quite entitled to say so and advise people of their right to ring the police.  I can just imagine what would be said if I then popped up and declared, “You shouldn’t be advising people that being punched makes them a victim – the police are trained in these matters and it can be complex.”  So can we agree to leave that argument there and agree we’re all trying to achieve the same thing?!  Informed dialogue across professions and patients and those relatives connected to them.

In case you’re not aware, AMHPs are usually mental health social workers who are warranted to take legal decisions under the MHA.  Occasionally, they are mental health nurses, similarly qualified.

I also admit to wondering from these various connections: why are Nearest Relatives not aware that they are nearest relatives and that they have certain rights?!  When we arrest children or vulnerable adults, we bring in ‘Appropriate Adults’, re-explain everything to them that we’ve explained to the suspect themselves and as those appropriate adults have certain rights, we give them a leaflet.  Strikes me as strange that a handful of people got wound up at the idea that Nearest Relatives should know their rights!? Heaven forbid!

So here are (just some) of the Nearest Relatives rights –

  • The right to ask for consideration of a Mental Health Act assessment – this is in s13(4) MHA and it is important to note: NRs don’t have the right to get a MHA assessment led by an AMHP, only the right to have the need for it considered.
  • The right to make applications for their relative’s admission to hospital under s2, s3 or s4 MHA (as long as they have an appropriate Doctor, prepared to make the medical recommendations.) – this is detailed in s11 MHA.
  • If you do make an application for admission, you then have the right to detain / convey someone to hospital and to seek AMHP, ambulance and police support to achieve this, where needed – this is detailed in s6 MHA.
  • The right to apply for the discharge of a relative who is in hospital under s2, s3 or s4 MHA – this is detailed in s23 MHA and  it requires 72hrs notice to come into effect.
  • The Nearest Relatives right under s23 may be restricted if, during that 72hrs, the psychiatrist in charge of the patient’s care furnishes a report under s25 MHA arguing that if discharged, the patient “would be likely to act in a manner dangerous to other persons or to himself.”
  • Nearest Relatives have the right to delegate this function as NR to others, if they think fit – but you cannot be forced to delegate those rights if you don’t want to.  You can also take it back again, if you wish.

In the interests of balance and fairness, there are also certain pitfalls to be aware of if you are a Nearest Relative, as AMHPs are legally warranted officers with rights and opportunities of their own and sometimes act with the support of the police –

  • AMHPs (and other relatives) have the right to apply to the County Court to displace a Nearest Relative
  • AMHPs have the right to apply to courts for warrants to enter and search the home of someone whom they think requires assessment and the police can force entry into a home for that purpose.
  • AMHPs and police officers also have the right to apply to the courts for warrants to enter and search a private home where they suspect a person who is “absent without leave” may be.
  • In dealing with any processes under the MHA which involved AMHPs or police officers, you need to bear in mind that it is a criminal offence to obstruct either or both of them from doing what they are legally entitled to do.

And finally – are YOU actually the Nearest Relative?  Ultimately, it’s up to the AMHP to decide based on the available information and whilst it can be complicated, it can also be nose-bleedingly obvious sometimes!  The full legislation on it is s26 MHA and there are various important things contained within the Code of Practice to the Mental Health Act (see chapters 2, 4, and 8 in particular.)

This is necessarily a very short blast through some stuff that can be complex, confusing and intimidating but it arises from learning of situations where relatives were worried and sometimes frustrated with the systems they came up against when trying to safeguard their loved ones.  Some reported that they had asked for GP home visits and been told that patients “have to come to surgery otherwise we can’t do anything” whilst people immediately countered with stories saying, “My son’s GP didn’t say that – he came out and couldn’t have been more helpful.”  Families have different experiences via social services, not all bad by any stretch – but some including NRs asking for things that they are, as above, entitled to seek and they were denied.  So whilst recognising that this post may irritate some, I make no apology for attempting to arm people with information that they may find useful and I do so in full certainty that if this was a reverse position, others would be telling people to “keep chipping away at the police”.  Advice that I have given, on occasion.

If you think anything needs to be added to this post, please leave a comment – they’re always welcome.

My favourite website for mental health law >> MentalHealthLaw Onlinesummary of MHA ’83 for Nearest Relatives


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


 

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5 thoughts on “Nearest Relatives’ Rights

  1. perhaps the only thing i would add is the NR’s right to apply to the tribunal oh and i carry a leaflet on NR rights in my file to give out along with a verbal explanation of their rights, never a problem

      1. Yes i am surprised of course there’s times when it’s difficult to identify the NR, but if you are clear who it is, then i don’t get it. Yes i have gone through options with a NR a home visit from GP, referral to access service etc; but i still explain their rights Although i accept we are at an advantage in that when conducting community assessments we go out in twos either both AMHPs or AMHP with a trainee which is a great help,

  2. As an AMHP I have no problem with anyone involved in all this knowing & exercising their legal rights – I hope that they would also understand their responsibilities.

    What I do see sometimes are users, families,carers & NRs left high & dry by primary care & GP services & then seeking a MHA Assessment via the NR route as a way of getting something done – anything is better than nothing.

    Dependent on the circimstances a MHA Assessment is not always appropriate as what is actually needed is GP/primary care/CMHT assessment/intervention & not a MHA Assessment – I appreciate that this debate can leave people in the gap between services. However, as pointed out above I can consider the request & suggest & support that plan A,B or C.

    The NR is a much neglected area of thought.

    Sometimes it can quite straight forward to ID the NR or quite difficult depending on family history & dynamics. It can be very difficult to ID them & consultant them in the middle of a difficult & pressured situation e.g. a police station with the PACE clock ticking & no bed etc.

    It is often something of an after thought for others & left to the AMHP to identify & consult with. I give the example of inpatients on already detained on Sec 2. A referral is made for Sec 3 Assessment & quite often the MH Trust RC or ward staff or MHA Admin have no idea who the NR is. They often confuse the NR with the Next of Kin or simply do not understand the importance of the NR role.

    I always think that it’s very sad when there is no NR or indeed the NR is not interested or willing. Again life is complicated & this happens for all sorts of reasons.

  3. 24 April 2014

    Dear Mentalhealthcop

    I have been in such a complex tangle! I still really cannot understand! Maybe I never will.

    Thank you so much for the detailed explanation.

    Best wishes

    Rosemary Cantwell

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