Nearest relative

Last updated

The nearest relative is a designated relationship defined in the legislation of England and Wales through the Mental Health Act 1983, as amended by the Mental Health Act 2007. [1] It is the duty of the Approved mental health professional to determine who is the nearest relative of the patient and consult them in the process of assessment, treatment or guardianship. [1] The 'nearest relative' role can be very beneficial to people who have been admitted to hospital against their wishes, however the recruitment process has a number of issues which can be problematic for both the person themselves and the relative who takes on the role. [2]

Contents

Definition

In Section 26 of the Act, there is a specific hierarchy of kinship relations with the patient or in the context of the type and length of joint residency, as well as caring relationships which is used to determine the nearest relative. [1] The hierarchy is the first person over 18, although a spouse may be younger, in the following list: husband or wife or civil partner (or those living together as husband or wife or civil partner for not less than 6 months); son or daughter; father or mother; brother or sister; grandparent; grandchild; uncle or aunt; nephew or niece; anyone else living with the person for not less than 5 years. [1]

The eldest is given precedence in any instance. [1] Relatives of half blood are treated the same as those of whole blood and an illegitimate child as the legitimate child of his mother, or his father, provided he has defined parental responsibility. [1]

Under Section 26(6), partners who have been living together for over 6 months, as husband or wife, or civil partner, are considered the 'nearest relative'. [1] Section 26(7) says that someone who has 'ordinarily' resided with the patient for over 5 years can be designated as the 'nearest relative'. [1] S26(4) states that, if someone resides with one or more relatives who cares for them, then that relative is given preference over others, being designated 'nearest relative', presiding over the above hierarchy. [1]

Under Section 26(5), a person who is ordinarily residing outside the United Kingdom, the Channel Islands or the Isle of Man cannot be considered the 'nearest relative' of a person ordinarily resident within the United Kingdom, the Channel Islands or the Isle of Man. Instead, in that case "the nearest relative of the patient shall be ascertained as if that person were dead", [3] [4] implying that this can hinder British nationals living abroad from having any say on the care of parents living in Britain, for example.

Duty to consult

In assessing under Section 2 of the Act, Section 11(3) specifies a duty for the Approved Mental Health Professional to 'take such steps as are practicable' to inform the nearest relative and inform them of their power to request discharge under S23(2)(a) of the Act. [1]

In assessing under Section 3 or Section 7 of the Act, the rules are different. [1] Section 11(4) of the Act states the 'nearest relative' must be consulted and if they object to detention of the patient, then they cannot be detained, even if the professionals involved in the assessment make the decision to do so. [1] They must also be informed of their right to request discharge in writing, under S23(2)(a) of the Act. [1]

Section 11(4) of the Act concedes that the 'nearest relative' sometimes may not be consulted as it is 'not practicable' or would cause 'unreasonable delay'. [1] Definition of the word 'practicable' is not always clear and to some extent has been defined by case law.

Right to request discharge

The 'nearest relative' has the right to request discharge of patients detained under Section 2 (assessment), Section 3 (treatment), Section 7 (guardianship) or Section 17a (community treatment order) of the Act, by giving no more than 72 hours' notice in writing to the 'responsible clinician. [1] This right, given in Section 23 of the Act, is circumscribed by Section 25 which states the request may be rejected if the 'responsible clinician' believes the patient 'would be likely to act in a manner dangerous to other persons or to himself'. [1]

Displacement

Section 29 of the Act defines five circumstances in which the nearest relative may be displaced by the County Court, with a 'nearest relative' appointed, and who may apply for a displacement order. [1]

Application for displacement and appointment of a new 'nearest relative' can be made by the patient, their relative, anyone with whom they are residing or an Approved Mental Health Professional. [1]

Grounds for making an application to displace, according to Section 29(3), include the patient having no discernible 'nearest relative' or the 'nearest relative' being 'incapable' due to mental disorder or other illness, 'unreasonably' objecting to detention, exercising their power to discharge without due regard for the patient's 'welfare' or being 'otherwise unsuitable' for the role. [1]

The 'nearest relative' can relinquish their role by putting it in writing that they wish to delegate to another person, with their agreement, who has not been disqualified from acting as such.

Related Research Articles

The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to a psychiatric disease at the time of the criminal act. This is contrasted with an excuse of provocation, in which the defendant is responsible, but the responsibility is lessened due to a temporary mental state. It is also contrasted with the justification of self defense or with the mitigation of imperfect self-defense. The insanity defense is also contrasted with a finding that a defendant cannot stand trial in a criminal case because a mental disease prevents them from effectively assisting counsel, from a civil finding in trusts and estates where a will is nullified because it was made when a mental disorder prevented a testator from recognizing the natural objects of their bounty, and from involuntary civil commitment to a mental institution, when anyone is found to be gravely disabled or to be a danger to themself or to others.

<span class="mw-page-title-main">Advance healthcare directive</span> Legal document

An advance healthcare directive, also known as living will, personal directive, advance directive, medical directive or advance decision, is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions for themselves because of illness or incapacity. In the U.S. it has a legal status in itself, whereas in some countries it is legally persuasive without being a legal document.

The Lanterman–Petris–Short (LPS) Act regulates involuntary civil commitment to a mental health institution in the state of California. The act set the precedent for modern mental health commitment procedures in the United States. The bipartisan bill was co-authored by California State Assemblyman Frank D. Lanterman (R) and California State Senators Nicholas C. Petris (D) and Alan Short (D), and signed into law in 1967 by Governor Ronald Reagan. The Act went into full effect on July 1, 1972. It cited seven articles of intent:

A legal guardian is a person who has been appointed by a court or otherwise has the legal authority to make decisions relevant to the personal and property interests of another person who is deemed incompetent, called a ward. For example, a legal guardian might be granted the authority to make decisions regarding a ward's housing or medical care or manage the ward's finances. Guardianship is most appropriate when an alleged ward is functionally incapacitated, meaning they have a lagging skill critical to performing certain tasks, such as making important life decisions. Guardianship intends to serve as a safeguard to protect the ward.

A person's next of kin (NOK) may be that person's spouse, adopted family member or closest living blood relative. Some countries, such as the United States, have a legal definition of "next of kin". In other countries, such as the United Kingdom, "next of kin" may have no legal definition and may not necessarily refer to blood relatives at all.

<span class="mw-page-title-main">Mental Health Act 1983</span> Law in England and Wales

The Mental Health Act 1983 is an Act of the Parliament of the United Kingdom. It covers the reception, care and treatment of mentally disordered people, the management of their property and other related matters, forming part of the mental health law for the people in England and Wales. In particular, it provides the legislation by which people diagnosed with a mental disorder can be detained in a hospital or police custody and have their disorder assessed or treated against their wishes, informally known as "sectioning". Its use is reviewed and regulated by the Care Quality Commission. The Act was significantly amended by the Mental Health Act 2007. A white paper proposing changes to the act was published in 2021 following an independent review of the act by Simon Wessely.

In England, the First-tier Tribunal , more commonly known as the Mental Health Tribunal, is an independent quasi-judicial body established to safeguard the rights of persons subject to the Mental Health Act 1983. It provides for consideration of appeals against the medical detention or forced treatment of a person who was deemed to be suffering from a mental disorder that was associated with a risk to the health or safety of that person or others.

The Mental Health Act is an Ontario law that regulates the administration of mental health care in the province. The main purpose of the legislation is to regulate the involuntary admission of people into a psychiatric hospital. Since the changes brought about in 2000 under Bill 68, the Act allows for a community treatment order by the attending physician. This order is intended to provide comprehensive treatment outside of a psychiatric facility.

<span class="mw-page-title-main">Health and Safety at Work etc. Act 1974</span> United Kingdom legislation

The Health and Safety at Work etc. Act 1974 is an Act of the Parliament of the United Kingdom that as of 2011 defines the fundamental structure and authority for the encouragement, regulation and enforcement of workplace health, safety and welfare within the United Kingdom.

<span class="mw-page-title-main">Mental Capacity Act 2005</span> United Kingdom legislation

The Mental Capacity Act 2005 is an Act of the Parliament of the United Kingdom applying to England and Wales. Its primary purpose is to provide a legal framework for acting and making decisions on behalf of adults who lack the capacity to make particular decisions for themselves.

<span class="mw-page-title-main">Abortion in South Africa</span> Overview of the legality and prevalence of abortions in South Africa

Abortion in South Africa is legal on request during the first 12 weeks of pregnancy. Abortion is also legal from week 13 up to week 20 of the pregnancy under any of the following conditions: the continued pregnancy would significantly affect the pregnant person's social or economic circumstances, the continued pregnancy poses a risk of injury to the pregnant person's physical or mental health, there is a substantial risk that the foetus would suffer from a severe physical or mental abnormality, or the pregnancy resulted from rape or incest.

<span class="mw-page-title-main">Mental Health Act 2007</span> Law of England and Wales

The Mental Health Act 2007 is an Act of the Parliament of the United Kingdom. It amended the Mental Health Act 1983 and the Mental Capacity Act 2005. It applies to people residing in England and Wales. Most of the Act was implemented on 3 November 2008.

<span class="mw-page-title-main">Mental Health (Care and Treatment) (Scotland) Act 2003</span> United Kingdom legislation

The Mental Health (Scotland) Act 2003, which came into effect on 5 October 2005, is an Act of the Scottish Parliament that enables medical professionals to legally detain and treat people against their will on the grounds of mental disorders, with the Mental Health Tribunal for Scotland and the Mental Welfare Commission for Scotland providing safeguards against mistreatment.

The role of approved mental health professional (AMHP) in the United Kingdom was created in the 2007 amendment of the Mental Health Act 1983 to replace the role of approved social worker (ASW). The role is broadly similar to the role of the approved social worker but is distinguished in no longer being the exclusive preserve of social workers. It can be undertaken by other professionals including registered mental health or learning disability nurses, occupational therapists and chartered psychologists after completing appropriate post-qualifying masters level training at level 7 NQF and being approved by a local authority for a period of up to five years, subject to re-warranting. The role of the AMHP is to coordinate the assessment of individuals who are being considered for detention under the Mental Health Act 1983. The reason why some specialist mental health professionals are eligible to undertake this role is broadly to avoid excessive medicalisation of the assessment and treatment for individuals living with a mental disorder, as defined by section 1 of the Mental Health Act 1983. It is the role of the AMHP to decide, founded on the medical recommendations of doctors, whether a person should be detained under the Mental Health Act 1983.

A surrogate decision maker, also known as a health care proxy or as agents, is an advocate for incompetent patients. If a patient is unable to make decisions for themselves about personal care, some agent must make decisions for them. If there is a durable power of attorney for health care, the agent appointed by that document is authorized to make health care decisions within the scope of authority granted by the document. If people have court-appointed guardians with authority to make health care decisions, the guardian is the authorized surrogate.

This disability rights timeline lists events outside the United States relating to the civil rights of people with disabilities, including court decisions, the passage of legislation, activists' actions, significant abuses of people with disabilities, and the founding of various organizations. Although the disability rights movement itself began in the 1960s, advocacy for the rights of people with disabilities started much earlier and continues to the present.

<span class="mw-page-title-main">Mental health tribunal</span> Tribunal hearing for mental health treatment disputes

A mental health tribunal is a specialist tribunal (hearing) empowered by law to adjudicate disputes about mental health treatment and detention, primarily by conducting independent reviews of patients diagnosed with mental disorders who are detained in psychiatric hospitals, or under outpatient commitment, and who may be subject to involuntary treatment.

Involuntary commitment or civil commitment is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hospital (inpatient) where they can be treated involuntarily.

The rights of mental health patients in New Zealand are covered in law by both the New Zealand Bill of Rights Act 1990 and The Code of Health and Disability Service Consumers' Rights. Section 11 of the Bill of Rights Act states that "everyone has the right to refuse to undergo any medical treatment". However the Mental Health Act 1992 allows for the compulsory treatment of patients with major mental illness who do not consent. This legislation also allows for the detention and treatment of individuals who have committed crimes but who have either been deemed unfit to plead or have been found not guilty by reason of insanity.

Severe mental impairment is a term used in the law of the United Kingdom to define intellectual disability for various purposes.

References

  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Mental Health Act 1983 (PDF). London: Office of Public Sector Information. Archived from the original (PDF) on 20 July 2011. Retrieved 7 February 2010.
  2. ↑ Shaw, Liz (2018). "Experiences of the 'Nearest Relative' provisions in the compulsory detention of people under the Mental Health Act: a rapid systematic review". Health Services and Delivery Research. NIHR. 6 (39): 1–68. doi:10.3310/hsdr06390. hdl: 10871/34260 . PMID   30521181. S2CID   81624297 . Retrieved 16 May 2019.
  3. ↑ Mental Health Act 1983, Section 26
  4. ↑ David Hewitt (15 January 2009). The Nearest Relative Handbook: Second Edition. Jessica Kingsley Publishers. p. 50. ISBN   978-1-84642-690-2.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.