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Identification of nearest relative

At the outset it should be noted that the nearest relative’s identity is determined by the rules in the Mental Health Act 1983 and has nothing to do with the patient’s “next of kin”.

‘Child patient’ rules

The following rules apply to patients under the age of 18.

  • If a child is under the care of a local authority by virtue of a care order then the local authority is automatically the nearest relative (s27).
    • Except if there is a husband, wife or civil partner (in which case the husband etc. would be the nearest relative).
  • If a guardian has been appointed under the Children Act 1989 then the guardian is automatically the nearest relative (s28(1)(a)).
    • This is subject to the disqualifications below.
  • If a residence order is in force in respect of a child then the person named in the residence order is automatically the nearest relative (s28(1)(b)).
    • This is subject to the disqualifications below

Does the patient have a ‘relative’ (as defined)?

MHA 1983 s26 sets out a of people who are considered to be ‘relatives’ for the purposes of identifying a nearest relative:

(a) husband or wife or civil partner;
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(e) grandparent;
(f) grandchild;
(g) uncle or aunt;
(h) nephew or niece.

The following points relate to determining whether someone is a ‘relative’:

  • Any relationship of the half-blood is treated as a relationship of the whole blood (s26(2) – e.g. half-siblings are treated as if they were full siblings.
    • One person is said to be of the whole blood to another when they are both descended from the same pair of ancestors, e.g. two brothers who have the same parents. Persons are said to be of the half blood to one another when they are descended from one common ancestor only e.g. two brothers who have the same father but different mothers. (Osborn’s Concise Law Dictionary 8ed)
  • An illegitimate person is treated as if he were the legitimate child of
    • his mother (s26(2)(a)).
    • his father only if he has parental responsibility within the meaning of s3 Children Act 1989 (s26(2)(b)).
  • A cohabitee who lives with the patient ‘as’ husband/wife/civil partner, and has done so for six months or more, is treated as being the husband/wife/civil partner (s26(6)).
    • This person could only be NR if there is no marriage/civil partnership, or the husband etc is disqualified (see below).
  • A person who is not a relative at all (i.e. not on the list above) can become a relative if the patient ordinarily resides with him, and has done so for five years or more (s26(7) but:
    • This person is added to the bottom of the hierarchy (below ‘nephew or niece’).
      • But note the ‘ordinary residence’ priority rule below.
    • This person could only be NR if there is no marriage/civil partnership, or the husband etc is disqualified (see below).
  • Step-children or step-parents – and cousins – are not on the list of relatives (though could become relatives via the ‘five year’ rule).
  • An adopted child (even when an adult) is treated as the child of an adoptive parent and not of a natural parent which has been replaced (s46(2) Adoption and Children Act 2002).

Which of these relatives is nearest relative?

  • In general, for an adult patient, the nearest relative can be found in the category of relative appearing first in the list above (s26(1), s26(3)), for instance ‘husband or wife or civil partner’.
  • Where more than one relative survives within a category above then (by s26(3):
    • relatives of the whole blood are preferred to those of the same description of the half-blood;
    • the elder/eldest is preferred; and
    • the sex of the relative is irrelevant.
  • Where the patient ordinarily resides with or is cared for by one or more of his relatives (or this was the case before admission), then those relatives are preferred over any others (by s26(4)).
    • This priority rule applies even to ‘five-year rule’ relatives.
    • If more than one such caring/resident relative exists, the nearest relative is chosen according to the whole-blood/eldest priority rule above.

Who is disqualified from being a ‘relative’?

  • A dead person (s26(3)).
  • Where the patient is ordinarily resident in the UK, Channel Islands or Isle of Man, and the would-be nearest relative is not so resident, then that person is treated as if he were dead (s26(5)(a)).
  • Where a would-be NR is the husband or wife or civil partner, but there has been a permanent separation (either by agreement or court order) or on-going desertion, that person is treated as if he were dead (s26(5)(b)).
  • Any person under 18 years of age is treated as if he were dead (s26(5)(c)).
    • Except for a husband, wife or civil partner, or father or mother of the patient.