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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".

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
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

Civil partners are treated as if married when determining nearest relative 1/12/07

Commencement

Date in forceCommencement orderMHA 2007 sectionMHA 1983 sections affected
3/11/08 Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 23 s29
" " 24 s30
" " 25 s66
" " s55, sch 11 s29

Resources

Mental Health Act 2007 Explanatory Notes - page 15-16

All pages in this "Changes made by MHA 2007" category...