When your nearest isn't your dearest

Where a person has a mental disorder, her nearest relative (NR) has firm powers and entitlements: to apply for her to be detained, or discharged, under the Mental Health Act 1983 (MHA), for example, and to be informed about an admission under s.2 or object to a proposed admission under s.3. The fact that a patient could not choose her NR was therefore a matter of great concern.

Some people even claim to have been abused by their NR, and the prospect of that person being involved in their life can prove detrimental to a patient's mental health.

Almost a decade ago, the government acknowledged that this state of affairs might breach human rights, and it promised the European Court of Human Rights (ECtHR) that it would give patients more of a say in the selection of their NR (FC v United Kingdom, Application no 37344/97, 7 September 1999; JT v United Kingdom, Application no 26494/95, 30 March 2000). The recent changes are an attempt to fulfil that promise.

Because the changes were so long in coming, practitioners began to devise ad hoc solutions of their own. Some, for example, argued that where abuse was alleged, it was 'not reasonably practicable' to consult a NR about a patient's proposed admission under s.3 (MHA, s.11(4)).

Though this approach was considered dubious, it has been approved by the High Court (E v Bristol City Council, [2005] EWHC (Admin) 74). But it is only a partial solution to the problem: even if he need no longer be consulted, an NR will continue to enjoy all the other powers and entitlements of the role. A more comprehensive solution was clearly required.

The changes

The amendments to MHA 1983 were made by the Mental Health Act 2007. The first one had little to do with the government's promise to the ECtHR. Since 1 December 2007, where two people are in a civil partnership, one has been the NR of the other (MHA 1983, s 26(1)(a)). Most of the other changes, however, deal with the removal of the NR.

A patient can now apply to remove her NR '“ a right she shares with any relative of hers, any other person with whom she resides and an Approved Mental Health Professional (MHA 1983, s 29(2)(a)'“(c) and (za)).

And there will be a new ground for displacement, which any applicant might use: the NR is 'not a suitable person to act as such' (MHA 1983, s.29(3)(e)). The amended Act does not say what this means.

That is not to say that 'suitability' has gone unmentioned. During the Parliamentary debates that produced the 2007 Act, the minister, Rosie Winterton, said: 'We intend the idea of unsuitability to cover situations in which there is no effective relationship between the patient and the nearest relative, or where the relationship has broken down irretrievably' (Hansard, 18 June 2007, col 1099).

So, the circumstances in which an NR might be unsuitable will not be limited to abuse. In fact, Para 8.13 of the revised MHA 1983 Code of Practice says that an application might be appropriate if there is:

'Any reason to think that the patient has suffered, or is suspected to have suffered, abuse at the hands of the nearest relative (or someone with whom the nearest relative is in a relationship), or is at risk of suffering such abuse;

'Any evidence that the patient is afraid of the nearest relative or seriously distressed by the possibility of the nearest relative being involved in their life or their care'; or

'A situation where the patient and nearest relative are unknown to each other, there is only a distant relationship between them, or their relationship has broken down irretrievably.'

Furthermore, the procedure by which an NR might delegate his functions to someone else is now contained in regulation 24 of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 '“ note that the old regulations have been repealed.

There is also new official guidance, which includes Seven steps to identify the nearest relative (Department of Health, 2008, Reference Guide to the Mental Health Act 1983, ch 33).

Patients now have some control over their nearest relatives and, in the most flagrant cases, can have them removed. But much of the law that pre-dated the recent changes remains in force. Though we might, for a while, become pre-occupied with the notion of 'unsuitability', we certainly haven't seen the last of the question of 'practicability'.

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