Your legal rights

OVERVIEW OF RIGHTS

A Nearest Relative is a person who is given certain rights and powers under the Mental Health Act 1983, to help protect the interests of a family member.  These rights are given to a relative (or a friend, in some legal circumstances) when someone is compulsorily admitted to hospital for treatment under the Mental Health Act.

An overview of this process is provided in the What is a Nearest Relative? section of the website.  

Click here to watch Kev, an Approved Mental Health Professional, talk about your rights as a Nearest Relative.

The Mental Health Act is a law which says in what circumstances a person with a serious mental health condition can be admitted to hospital against their will and what protections they should have. Guidance on how the Mental Health Act works in practice is given in the Mental Health Act Code of Practice.  There is a different Code of Practice for England and Wales. The Codes of Practice tell professionals what information they should provide to patients and their Nearest Relatives when a person is detained in hospital under the Mental Health Act.   

Nearest Relatives have several rights under Mental Health Act.  Some of these rights are called ‘qualified rights’ meaning that they can be overridden in certain circumstances (for example, where a person may pose a risk to others).  The information on this page is designed to help you understand your rights as a Nearest Relative under the Mental Health Act, so that you can use them effectively.   

Download the Infographic of your rights.

As a Nearest Relative, you are given the following rights: 

• You can request that an Approved Mental Health Professional (known as an AMHP) organises and carries out a Mental Health Act assessment, to decide if your relative should be admitted to hospital for treatment under the Mental Health Act. AMHPs are mental health professionals, usually social workers, who are given powers under the Mental Health Act, including co-ordinating Mental Health Act assessments, and making sure that the patients home and family circumstances are considered during this assessment.  AMHPs are allowed to refuse a Nearest Relative’s request for a Mental Health Act assessment but they must inform you of their reasons in writing.
• You have a legal right to apply for your relative to be detained under the Mental Health Act. This means you could carry out a Mental Health Act assessment with two doctors and organise your relative’s admission (this right is given to Nearest Relatives under s. 11(1) of the Mental Health Act).  In practice this is very rare, as most Nearest Relatives don’t have the skills to do this and might also be worried about how this would affect their future relationship with the person being detained. 
• You should be given information about your relative’s detention, if they are admitted under section 2 of the Mental Health Act. This a part of the Mental Health Act which allows a person to be detained for assessment and treatment of a mental health condition for up to 28 days.
• You can object to your relative being admitted to hospital under section 3 of the Mental Health Act.  This is a part of the Mental Health Act which allows a person with a mental health condition to be detained in hospital to receive treatment.  Section 3 lasts for up to 6 months but can be renewed again after 6 months and then every year, by a Responsible Clinician (a Responsible Clinician is the person in charge of the care of a patient who is detained in hospital under the Mental Health Act. It is usually a psychiatrist, but can be a psychologist, occupational therapist or nurse).  
• You can object to your relative being placed under Guardianship. This is a power under section 7 of the Mental Health Act which allows certain mental health professionals to say where a patient should live, and where they should go to receive treatment, work or training.  This power can be used instead of detaining a person in hospital.   
• You can make an order for your relative to be discharged from hospital. A Responsible Clinician can block the discharge if they believe that your relative is dangerous.  If they decide to do this, then you will have the power to ask for an appeal on your relative’s behalf.  Appeals are carried out by the Mental Health Tribunal.  This is an independent panel of experts who can discharge your relative from hospital if they decide the legal grounds for detention are not met.   
• You can request that your relative receives help from an Independent Mental Health Advocate (IMHA). IMHAs are specially trained individuals to help detained patients understand their rights and to speak on their behalf in meetings.   

IMPORTANT QUESTIONS FOR YOU TO CONSIDER

How do I know if I am a Nearest Relative?  

If you are identified as being a Nearest Relative you should be told about this.  You may be told by the AMHP before they carry out the Mental Health Act assessment, or after it has been completed.  You may also be told by a Mental Health Act Administrator in the hospital after your relative has been detained.  These administrators are employed by Mental Health Trusts to make sure that the law is being used properly.    

Do I have to act as a Nearest Relative?  

It is up to you if you want to take on the role of a Nearest Relative.  If you don’t want to do it then you can give the Nearest Relative power to someone else, if they agree.  To do this you need to write to the Mental Health Act Administrator at the hospital your relative is detained at to tell them who you wish to give the role to or you can let the AMHP know.  If you change your mind about giving your powers as a Nearest Relative to someone else then you can write to the hospital to cancel this arrangement.   

What should I do if I think my relative should be detained in hospital?  

If you feel that your relative should be detained under the Mental Health Act then you can contact your Local Authority’s Approved Mental Health Professional (AMHP) team and request they arrange an assessment.  The AMHP team has a legal duty under the Mental Health Act to consider this request.  They can refuse to carry out a Mental Health Act assessment but if they decide to do this then they should provide you with their reasons in writing.   

What should I do if I think that my relative should be discharged?  

If you think that your relative should be discharged from their section, then you can order their discharge from hospital.  If they are currently detained in hospital (or are under a Community Treatment Order, or a CTO for short – for more on this see further below), then you should write to the Mental Health Act administrator at the hospital they are currently detained at (or were last detained at if they are under Guardianship).  You do not have to fill in a specific form.  You need to give the hospital 72 hours’ notice to discharge a patient from hospital or a CTO.  The Responsible Clinician has the power to bar or stop this discharge if they decide the patient is dangerous to themselves or others.  This is called a ‘barring report’. If a barring report is issued, the Nearest Relative will not be able to apply to discharge their relative for six months. If a professional thinks that the Nearest Relative has exercised their right to request a discharge without due regard to the welfare of the patient or the interests of the public then they may apply to displace the Nearest Relative from the role (this is set out in section 29 of the Mental Health Act).  

A Tribunal is a decision-making body which is independent from the hospital and is made up of a panel of experts which includes: a judge, a doctor and a lay member with relevant experience.  As a Nearest Relative you should be told when the Tribunal will take place.  If you made the application to the Tribunal, you have the right to appoint a medically registered practitioner to visit and examine your relative (subject to funding), attend the hearing, give evidence and to cross-examine others at the meeting.  If you appeal on your relative’s behalf, then you will also be entitled to legal aid funding.  If you choose not to attend the Tribunal yourself, then your views should be reported in a social circumstances report.  This is a report which a mental health professional in the community is required to write, to inform the Tribunal about your relative’s home and family circumstances.

The Courts and Tribunals Service have more guidance on what to expect at a Tribunal hearing.  

Can information be kept confidential from me if I am a Nearest Relative?  

Being a Nearest Relative does not give you a right to receive information about your relative’s care if they do not want the information to be shared with you.  If your relative is being assessed for admission under section 3 of the Mental Health Act, then the AMHP who is co-ordinating the assessment should ask you if you object to the detention and should provide you with enough information to make a meaningful decision. 

It is important for you to know that mental health hospitals or units should not apply policies that say all information about a patient is confidential but should check about what information your relative is happy to share with you or others.  

Have a look at the Managing Information Sharing, Confidentiality and Consent tool on the website for more information.