MHA 1983 s26
Revision as of 18:16, 23 November 2008 by Jonathan
See Nearest relative.
Change made by Mental Health Act 2007
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- FC v UK (1999) 37344/97  ECHR 184 — The applicant complained under Article 8 of the Convention that her adoptive father (whom she claims sexually abused her) automatically became her nearest relative under s26, that he consequently had access to personal information about her (including her treatment and whereabouts) and that she was not entitled to apply to have someone else act as her nearest relative; the case was struck out of the list by way of a friendly settlement on the basis that the government would change the law.
- JT v UK 26494/95  ECHR 133 — Case struck out of list, as friendly settlement reached to ensure MHA compliant with Article 8: MHA to be amended to allow patient to apply for displacement of NR where reasonably objected; and to allow exclusion of certain persons from acting as NR.
- M v East London NHS Foundation Trust CO/1065/2009 — The nearest relative's statement to the AMHP that he disagreed with detention under s3 was sufficient to amount to the notification of an objection under s11; it was unaffected, in the absence of any clear evidence of a change of mind, by the failure to state an objection in a subsequent conversation immediately prior to the making of the application.
[The chapter/paragraph numbers which appear below (if any) refer to the 2008 versions of the Code of Practice and Reference Guide.]
- Reference Guide to the Mental Health Act 1983, 33. Nearest relatives [Note that the chapter number relates to the old Reference Guide] — paragraphs 33.7 to 33.20
- Mental Health Act 1983 Code Of Practice for England, 8. The nearest relative
Definition of "relative" and "nearest relative"
26.—(1) In this Part of this Act "relative" means any of the following persons:—
- (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.
(2) In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated as a relationship of the whole blood, and an illegitimate person shall be treated as the legitimate child of
- [(a) his mother, and
- (b) if his father has parental responsibility for him within the meaning of section 3 of the Children Act 1989, his father.]
(3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the "nearest relative" means the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.
(4) Subject to the provisions of this section and to the following provisions of this Part of this Act, where the patient ordinarily resides with or is cared for by one or more of his relatives (or, if he is for the time being an in-patient in a hospital, he last ordinarily resided with or was cared for by one or more of his relatives) his nearest relative shall be determined—
- (a) by giving preference to that relative or those relatives over the other or others; and
- (b) as between two or more such relatives, in accordance with subsection (3) above.
(5) Where the person who, under subsection (3) or (4) above, would be the nearest relative of a patient—
- (a) in the case of a patient ordinarily resident in the United Kingdom, the Channel Islands or the Isle of Man, is not so resident; or
- (b) is the husband or wife [or civil partner] of the patient, but is permanently separated from the patient, either by agreement or under an order of a court, or has deserted or has been deserted by the patient for a period which has not come to an end; or
- (c) is a person other than the husband, wife, [civil partner,] father or mother of the patient, and is for the time being under 18 years of age;
- (d) [...]
the nearest relative of the patient shall be ascertained as if that person were dead.
(6) In this section "husband" [, "wife" and "civil partner" include a person who is living with the patient as the patient's husband or wife or as if they were civil partners], as the case may be (or, if the patient is for the time being an in-patient in a hospital, was so living until the patient was admitted), and has been or had been so living for a period of not less than six months; but a person shall not be treated by virtue of this subsection as the nearest relative of a married patient [or a patient in a civil partnership unless the husband, wife or civil partner] of the patient is disregarded by virtue of paragraph (b) of subsection (5) above.
(7) A person, other than a relative, with whom the patient ordinarily resides (or, if the patient is for the time being an in-patient in a hospital, last ordinarily resided before he was admitted), and with whom he has or had been ordinarily residing for a period of not less than five years, shall be treated for the purposes of this Part of this Act as if he were a relative but—
- (a) shall be treated for the purposes of subsection (3) above as if mentioned last in subsection (1) above; and
- (b) shall not be treated by virtue of this subsection as the nearest relative of a married patient [or a patient in a civil partnership unless the husband, wife or civil partner] of the patient is disregarded by virtue of paragraph (b) of subsection (5) above.