The nearest relative under the Mental Health Act

What is the nearest relative?

The nearest relative is a person with legal powers under the Act to protect a patient's interests. The s26 list decides who it is, not the patient, and it isn't the same as next of kin (Code 5.1, 5.2).

The role can change. A marriage, a death, or a relative turning 18 or moving back to the UK can all change who it is (Reference Guide 2.18, 2.19). If the nearest relative isn't the carer, involve the carer too (Code 5.2).

These are the rules in England and Wales. The 1983 Act doesn't extend to Scotland, which has its own law (s146).

Who is the nearest relative? Step by step

1. List the relatives in order: spouse or civil partner, child, parent, sibling, grandparent, grandchild, uncle or aunt, nephew or niece (s26(1)). Adoptive relationships count; step relationships don't (Reference Guide 2.8).
2. Add a partner they've lived with as a couple for 6 months or more, who ranks as a spouse. Add anyone else they've lived with for 5 years or more, who goes last (s26(6), (7)).
3. Cross off anyone excluded (s26(5)). That's under-18s other than a spouse, civil partner or parent, and a spouse who's permanently separated or has deserted or been deserted. It's also anyone living outside the UK, Channel Islands and Isle of Man, unless the patient does too.
4. If the patient lives with or is cared for by any of them, or did before admission, those relatives go to the front (s26(4)).
5. Take the highest on the list. Between equals, whole blood beats half blood, then the elder wins, regardless of sex (s26(3)).

A cohabiting partner or 5-year housemate can't be nearest relative to a patient who's married or in a civil partnership. That bar lifts only if the spouse or civil partner is excluded for separation or desertion (s26(6), (7)).

Children and young people

• In care. For a child on a care order, the local authority is the nearest relative, unless the child has a spouse or civil partner (s27).
• Guardians and child arrangements orders. A guardian, special guardian or person the child lives with under a child arrangements order is the nearest relative, to the exclusion of anyone else (s28).
• Unmarried fathers count as the father of a child or young person only if they have parental responsibility (Code 5.3).

Who has no nearest relative?

Patients remanded under s35 or s36, on an interim hospital order under s38, or subject to restrictions have no nearest relative under the Act (Code 5.4). Nor does anyone with nobody on the list.

If an AMHP finds a patient has no nearest relative, they should tell the patient they can apply to the county court for someone to act. If the patient lacks capacity to apply, the AMHP should apply (Code 5.6).

Nearest relative rights

• Ask for an assessment. Require the council to have an AMHP consider the case, and get written reasons if the AMHP doesn't apply (s13(4)).
• Be told about a s2, and about their power to discharge (s11(3)).
• Be consulted about a s3 or guardianship, and object. An objection stops the AMHP's application (s11(4)).
• Apply themselves, if they've seen the patient within 14 days. An AMHP is usually better placed (s11(1), (5), Code 14.30).
• Order discharge from s2, s3 or a CTO that followed s3, with 72 hours' written notice (s23, s25).
• Information. A copy of the patient's written rights information, unless the patient asks otherwise, and notice of discharge at least 7 days ahead where practicable (ss132(4), 133).
• The tribunal. Within 28 days of being told of a barring report on s3 or a CTO, or yearly if the court displaced them under s29(3)(c) or (d) (s66).
• Delegate the role to someone else (reg 24).

More on Mental Health Act assessments and section 3.

Can the nearest relative discharge a patient?

Yes, from s2, s3 or a CTO after s3, by giving the hospital managers at least 72 hours' notice in writing. No particular form is needed, and an order given without notice counts as both (Code 32.21, 32.24). The managers should offer a standard letter (Code 32.25).

Within the 72 hours, the RC can bar it with a report on Form M2 (s25(1), reg 25). The test is that the patient, if discharged, would be likely to act in a manner dangerous to others or themselves. It's about the probability of dangerous acts, such as serious physical injury or lasting psychological harm, not a general need for safety (Code 32.23).

After a bar, they can't order discharge again for 6 months. On s3 or a CTO, they're told and can apply to the tribunal within 28 days. On s2 there's no tribunal route, though the managers should consider a review (s25, s66(1)(g), Code 38.12).

Delegating the nearest relative role

A nearest relative doesn't have to act. They can authorise someone else in writing, and an ordinary signed and dated letter will do (reg 24, Reference Guide figure 5). They can't pass it to the patient, to someone excluded under s26(5), or to someone the court has displaced.

It takes effect when the new person receives it. The nearest relative must tell the patient straight away, and the hospital managers if the patient is detained. They can revoke it the same way. It lapses if either of them dies, or if the delegator stops being the nearest relative (Reference Guide 2.31 to 2.35).

Displacing the nearest relative

The county court can appoint someone else to act as nearest relative (s29). The patient, any relative, anyone the patient lives with or lived with before admission, or an AMHP can apply (s29(2)). The grounds are (s29(3)):

• No nearest relative, or it isn't reasonably practicable to find out who it is.
• Incapable of acting because of mental disorder or other illness.
• An unreasonable objection to s3 or guardianship.
• Discharging without due regard to the patient's welfare or the public interest, or being likely to.
• Otherwise not suitable. Abuse, fear, or a relationship that has broken down are examples an AMHP might raise (Code 5.14).

Before going to court, ask whether the nearest relative would delegate instead, or whether the patient could apply with support, for example from an IMHA (Code 5.16). The applicant should nominate a replacement, who the court appoints if suitable and willing (s29(1A), Code 5.19). If the patient fears for their safety, the court can be asked not to make the nearest relative a party (Code 5.21).

When the AMHP doesn't inform or consult

The duties give way where the nearest relative can't be identified or found without unreasonable delay, or can't be consulted because of their own health (Code 14.60). They also give way where contact would interfere with the patient's Article 8 rights more than is justified, for example by causing distress, harm or exploitation (Code 14.61).

Don't decide that lightly. The patient's wishes count but don't settle it. Record the reasons, and never skip consultation just because you expect an objection (Code 14.62, 14.63).

The nominated person: what the 2025 Act changes

The Mental Health Act 2025 will replace the nearest relative with a nominated person chosen by the patient (2025 Act s24 and Schedule 2). The AMHP will have to consult them before a s3 or guardianship application, and they'll be able to object.

An objection won't be final. The AMHP will still be able to apply with a report that the patient would otherwise be likely to act dangerously (2025 Act s25). The barring period after a blocked discharge falls from 6 months to 3 (2025 Act s26). None of this is in force, and DHSC's timetable puts it in phase 1, indicatively 2028/29. More on the 2025 Act.

A worked example

Ms L is his nearest relative. His wife is excluded because they're permanently separated (s26(5)(b)). That lets Ms L, a partner of more than 6 months, rank as his spouse (s26(6)), and she lives with him too (s26(4)). His son would be excluded anyway, because he lives outside the UK (s26(5)(a)).