View source for Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability

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Previously the patient had no say in who was his [[nearest relative]]. In some circumstances this breached Article 8. The patient can now apply under [[s29]] to displace his nearest relative on the existing four grounds, plus the new ground that the NR is unsuitable. The new ground is also available to AMHPs and others who could previously apply for displacement. Section 66 (applications to MHRT) is also amended. 

==Extract from Explanatory Notes==
'''Sections 23-26: Patient's nearest relative  '''

76. Sections 26-29 of the 1983 Act provide for the role of the nearest relative (NR) of
patients.  The 1983 Act provides a list of persons who may act in this role: the person 
appointed usually being the highest in that list, starting with any spouse or, if there is none, 
the eldest son or daughter, and so on.  The NR has certain rights in connection with the care 
and treatment of a mentally disordered patient under the 1983 Act, including the right to 
apply for admission to hospital, the right to block an admission for treatment, the right to 
discharge a patient from compulsion and the right to certain information about the patient. 
NRs may not exercise their rights in respect of patients subject to special restrictions under 
Part 3 of the 1983 Act. 

77. Section 23 introduces a new right for a patient to apply for an order displacing the NR on 
the same grounds available to other applicants under the 1983 Act as it stands, and on the 
additional ground that the NR is unsuitable to act as such.  The table below summarises 
possible grounds for applications and who may make them.  The provision also amends the 
basis upon which a court may make such an order.  It changes the requirement that the acting 
NR be, in the court's opinion, a "proper person" to act as the NR to a requirement that the 
person is, in the court's opinion, a "suitable" person to act.  Section 23 also amends section 
29 of the 1983 Act to provide that where the person nominated by the applicant is, in the 
court's opinion, not "suitable" or there is no nomination, the court can appoint any other 
person it thinks is "suitable". 

{| class="wikitable"
! colspan="2" rowspan="2" |
! colspan="5"|Possible ground for an application 
|-
!29(3)(a) - the patient has no NR
!29(3)(b) - the NR is too ill to act
!29(3)(c) - the NR unreasonably blocks admission
!29(3)(d) - the NR has or is likely to discharge the patient without due regard
!29(3)(e) - the NR is unsuitable to act as such
|-
!rowspan="4"| Possible applicants
!AMHP replacing ASW
|Currently provided for
|Currently provided for 
|Currently provided for 
|Currently provided for 
|New provision
|-
!Relative
|Currently provided for
|Currently provided for 
|Currently provided for 
|Currently provided for 
|New provision
|-
!Someone living with the patient
|Currently provided for
|Currently provided for 
|Currently provided for 
|Currently provided for 
|New provision
|-
!Patient
|New provision
|New provision
|New provision
|New provision
|New provision
|}

78. In this way, an NR who has, for example, in the past subjected a patient to physical abuse, 
may, upon application to the court by the patient, be removed from exercising the rights of 
the NR by order of the court.  In the application, the patient can nominate another person to 
act as the NR.  Unless the court finds that person to be unsuitable, or decides not to displace 
the current NR, the person will be made the acting NR. 

79. An application for displacement can also be made by an AMHP, another relative or 
anyone living with the patient (or if the patient is an in-patient in a hospital, anyone with 
whom the patient was living before he was admitted). So long as the court orders the
displacement of the current NR, then whomever the applicant nominates will be made the 
acting NR, unless the court finds that person to be unsuitable to act as such. 

80. Section 24 introduces a new right for the patient to apply to discharge - or vary - an order 
appointing an acting NR.  A NR displaced under the new ground will also be able to apply 
for such an order, but the NR must first obtain leave of the court.  The court can currently 
appoint an acting NR only for a limited period; section 24 will allow the court to make an 
appointment for an indefinite period. 

81. A person who has been made the acting NR retains the right to apply to have that order 
ended. The order displacing the NR - and appointing an acting NR - continues even when the 
displaced NR ceases to be the first person in the list of relatives. In these circumstances, the 
patient can apply to have the court order discharged.  The new person at the top of the list 
will then become the NR. 

82. A NR displaced on the new grounds that he is unsuitable to act as such can apply for the 
discharge of the order which displaced him as NR. However, the application will only be 
heard if the court first agrees. Spurious or malicious applications can therefore be stopped 
before the patient is brought into the process.  

83. Section 25 will limit applications to the MHRT from displaced NRs, to those NRs
displaced on grounds set out in sections 29(3)(c) or 29(3)(d) of the 1983 Act (see table 
above).  A person who has been displaced as the NR because he or she is too ill to act, or 
unsuitable to act, will not have the right to apply to the MHRT.  

==Related change==

{{mha change|partners}}

==Commencement==
{{mha change info|3/11/08|7|23|[[s29]]|"|"|24|[[s30]]|"|"|25|[[s66]]|"|"|s55, sch 11|[[s29]]}}

==Resources==

[[Mental Health Act 2007 Explanatory Notes]] - page 15-16
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