6.7 Displacement of the Nearest Relative Section 29 Mental Health 1983 (incorporating Corporate Nearest Relative Procedures)

1. Introduction

Relatives have an important role to play in the care of individuals who may require assessment and treatment under the Mental Health Act (MHA) 1983 [as amended by the Mental Health Act 2007]. The importance of obtaining the views of families and carers is a theme which runs throughout the MHA Code of Practice.

A person’s ‘nearest relative’ within the meaning of section 26 MHA has specific rights and powers within the Act which provide important checks and balances for the person subject to compulsory powers. For example, a person’s nearest relative, by expressing their objection, can prevent the making of an application for admission for treatment under section 3 MHA. The nearest relative can also order the person’s discharge from detention under the MHA.

Therefore, an important part of the role of the Approved Mental Health Professional (AMHP) is to accurately identify and consult a person’s nearest relative as a part of the MHA assessment process. Identifying the person who is the nearest relative within the meaning of section 26 MHA can be a complex process.

Section 26 of the Act defines ‘relative’ and ‘nearest relative’ for the purposes of the Act. It is important to remember that the nearest relative for the purposes of the Act may not be the same person as the patient’s ‘next of kin’. The identity of the nearest relative may change with the passage of time – e.g. if the patient enters into a marriage or civil partnership.

 The Act includes additional provisions to identify the nearest relative of a child or young person. For example, if the child or young person is subject to a care order (or interim care order) under the Children Act 1989, the relevant local authority will be the nearest relative, (except where the young person is married or in a civil partnership).

 (Para 5.2-5.3 MHA Code of Practice)

Under the MHA, the nearest relative role is intended to safeguard the patient’s interests and to help ensure that compulsory powers of the Act are used appropriately. However, where it is thought that a nearest relative is exercising their powers unreasonably (or where a person has no nearest relative as defined by section 26 MHA) an application to the County Court may be made to ‘displace’ them and appoint a new nearest relative. Section 29 MHA provides the Court’s power to displace an existing nearest relative and appoint an appropriate person to exercise the functions of the nearest relative.

1.1 Purpose

 This policy applies to all AMHPs working for or on behalf of Lancashire County Council.

The purpose of this policy is to provide clear practice guidance to assist AMHPs to: 

• Determine when an application under section 29 MHA for displacement / appointment of nearest relative may need to be made;
• Understand the processes and procedures relevant to making an application to the County Court;
• Decide who is the most appropriate person to nominate for appointment as nearest relative when making an application to the Court. 

1.2 Responsibilities in relation to this policy

Local Social Services Authority

Lancashire County Council has a duty to ensure practice guidance is available to AMHPs in relation to the making of applications to the County Court under section 29 MHA for the displacement / appointment of a nearest relative. Lancashire County Council also has a duty to provide legal services to support AMHPs in the making of section 29 MHA applications to County Court.

AMHP Professional Lead

The AMHP Professional Lead has a duty to ensure all AMHPs are informed of this policy and receive sufficient training and support to undertake their role. The AMHP professional Lead has a duty to ensure that systems are in place that support the requirements of this policy.

AMHPs

AMHPs have a duty to familiarise themselves with the content of this policy and follow the practice guidance.

Heads of Service

The relevant Heads of Service will be aware that in circumstances where an application is made under section 29 MHA but there is no suitable person willing to be appointed as nearest relative, the relevant Head of Service will be appointed as nearest relative and will be aware of the requirements of this role.

1.3 Ethics statement

This policy has been written with consideration of, and with reference to, the MHA 1983 and its Code of Practice to ensure that all processes and procedures are consistent with the guiding principles of the MHA and compliant with all relevant legal requirements.

AMHPs must seek to promote family and carers’ involvement in the MHA process, ensuring they too are treated with dignity and respect, and that their needs are also considered within the MHA process.

Indeed the MHA Code of Practice, Chapter 1 Guiding Principles make direct reference to families and carers:

Empowerment and Involvement

Patients should be fully involved in decisions about care, support and treatment. The views of families, carers and others, if appropriate, should be fully considered when taking decisions. Where decisions are taken which are contradictory to views expressed, professionals should explain the reasons for this.

Respect and Dignity

Patients, their families and carers should be treated with respect and dignity and listened to by professionals.

AMHPs should only apply to displace a nearest relative under section 29 MHA if they are satisfied that every attempt has been made to fully understand and address any concerns expressed by the nearest relative. AMHPs should also be mindful of the impact of the MHA assessment process on the nearest relative and should provide support to enable nearest relatives to understand and perform the role in the interests of the person being assessed.

Please also refer to the Lancashire County Council AMHP guidance document “Improving the experience of carers and families within the MHA process”.

2. Key Definitions and Principles

2.1 When might an AMHP apply to displace / appoint a nearest relative?

Paragraph 5.13 of the MHA Code of Practice states:

AMHP’s should bear in mind that some patients may wish to apply to displace the nearest relative but may be deterred from doing so by the need to apply to the County Court.

Therefore an AMHP will need to consider making an application for displacement or appointment of a nearest relative if:

a) The patient has no identifiable nearest relative:

Where an Approved Mental Health Professional discovers, when assessing a patient for possible detention or guardianship under the Act (or at any other time), that a patient appears to have no nearest relative, the Approved Mental Health Professional should advise the patient of their right to apply to the County Court for the appointment of a person to act as their nearest relative. If the patient lacks mental capacity to decide to apply themselves, the Approved Mental Health Professional should apply to the County Court. (Para 5.6, MHA Code of Practice).

b) The nearest relative is incapable of acting as such:

This applies only if the person is unable to perform the functions of the nearest relative, (e.g. if the nearest relative themselves has a mental disorder and lacks mental capacity to perform the functions); it does not apply in situations where the nearest relative exercises their function in an irresponsible manner. If the AMHP concludes that it is not practicable to consult with the patient’s nearest relative under section 11(4) because of that person’s mental incapacity, then an application under section 3 of the Mental Health Act can proceed prior to an application [under section 29 MHA] being made to the court (see also Jones, Mental Health Act Manual).

c) The nearest relative has made an unreasonable objection (to the making of an application for admission for treatment under section 3 MHA):

In consideration of what is a reasonable or unreasonable objection, the test should be based on what an objectively reasonable person would do in all circumstances, and not whether the actual nearest relative involved in the case was behaving reasonably from his or her own subjective view (Jones, Mental Health Act Manual).

d) They believe the nearest relative is likely to discharge a patient from detention or guardianship without due regard to the patient’s health or wellbeing, or to the safety of the public:

The test for this should be an objective one, and the Judge should consider not only the history of the matter but also the situation with which he is faced at the date of the hearing (Jones, Mental Health Act Manual).

e) They have good reason to think that a patient considers their nearest relative unsuitable and would like them to be replaced, and it would not be reasonable in the circumstances to expect the patient or anyone else to make an application:

It is entirely a matter for the Court to decide what constitutes ‘suitability’ of a person to be the nearest relative. Factors which the AMHP might wish to consider when deciding whether to make an application to displace the nearest relative on those grounds, and when providing evidence in connection with an application, could include:

• Any reason to think that the patient has suffered, or is suspected to have suffered abuse at the hands of the nearest relative (or someone with whom the nearest relative is in a relationship), or is at risk of suffering abuse;
• Whether the patient is afraid of the nearest relative or seriously distressed by the possibility of the nearest relative being involved in their life, or their case; or
• Whether the patient and the nearest relative are unknown to each other, there is only a distant relationship, or their relationship has broken down irretrievably.

(Para 5.14 MHA Code of Practice)

2.2 Before making an application to displace a nearest relative, the AMHP should consider other ways of achieving the same ends

a) Delegation of the functions of the nearest relative:

A nearest relative is not obliged to act as such. They can authorise, in writing, another person to perform the functions of the nearest relative on their behalf (Section 32(2)(e) MHA 1983 and Regulation 24 of the Mental Health (Hospital) (England) Regulations 2008).

The AMHP should therefore consider whether the nearest relative will agree to delegate their responsibility as nearest relative to someone else; or,

b) Supporting the ‘patient’ to apply to Court themselves:

It is not only an AMHP who can apply to the County Court under section 29 MHA. An application can also be made by the ‘patient’ themselves, any relative, and any person with whom they are residing (section 29(2) MHA).

The AMHP should therefore consider providing or arranging support for the person (or someone else) to make an application to County Court for themselves. This could include support from an Independent Mental Health Advocate (IMCA) see also Independent Mental Capacity and Mental Health Advocacy chapter.

3. Procedures

3.1 Delegation of the performance of functions by the nearest relative

The functions of the nearest relative can be delegated, in writing, to any other person except:

• The patient;
• A person who, under section 26(5) MHA 1983, is not eligible to be the patient’s nearest relative; and
• A person who would currently be the nearest relative, were it not for an Order of the court displacing them under section 29 (unless that order was given on the grounds that, at the time, no nearest relative could be identified).

The nearest relative is required under the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 to give formal written notice of this authorisation. Such notice must be given to the proposed new nearest relative, and to the Hospital Managers (for a patient already detained), and/or to the local authority (for a patient subject to guardianship). This authorisation can be revoked again, in writing, by the original nearest relative at any time.

See also  Appendix 1 – Template for the delegation of the functions of the nearest relative (opens in Word).

Note: The delegation of functions of nearest relative automatically ends on the death of the person who made it, or if that person ceases to be the nearest relative for any other reason. It also lapses on the death of the person to whom the function has been delegated.

(Para 2.35 Reference Guide to the MHA 1983).

Administrative process when a nearest relative delegates their functions to another person:

• The delegation letter should be scanned and uploaded to LAS/LCS documentum.
• A case note should be added on LAS stating that the nearest relative functions have been delegated, and the date of the delegation. The case note should include the details of both the person delegating the nearest relative role, and the person to whom the role has been delegated.
• Ensure the contact details of the person to whom the functions have been delegated are added under ‘contact methods’ on the person’s LAS basic demographics. Please add (delegated as MHA nearest relative – dd/mm/yy) after their name so that this displays on the basic demographic page.
• Forward the delegation letter to the MH law administrator for the hospital (if an inpatient) and to the care coordinator or named worker within the mental health team so that they can update the health record accordingly.

3.2 Displacing the nearest relative

Where it appears to an AMHP that there are grounds to displace a nearest relative, this should be dealt with promptly by the most appropriate AMHP. Work of this nature will require a response from the AMHP which will inevitably extend over and above the period of time ordinarily allocated to AMHP duties, and it will therefore be necessary for the AMHP to discuss this with their line manager.

If the application for the displacement relates to a nearest relative of a person already detained under section 2 MHA, either on the grounds of an ‘unreasonable objection or of ‘exercising power of discharge without due regard to the patient’s welfare or public interest’, the application under section 29(4) MHA will have the effect of extending the section 2 until the matter is concluded in Court.

If the patient is not already detained under section 2, and they have a mental disorder of a nature or degree that necessitates detention in hospital under section 3 MHA, and there is clear evidence that indicates a serious risk to the patient or others, the AMHP may apply for an Interim Order which will allow the section 3 application to be completed prior to the matter being dealt with in Court.

In any case, the AMHP should discuss the matter with an AMHP manager at the earliest opportunity and contact legal services to consider the most appropriate way in which to proceed.

During office hours, the Lancashire County Council Social Care Legal Advice team can be contacted by email at [email protected] – legal advice requests should be made using the standard template (see Appendix 2).

If an urgent need to seek an interim order arises outside office hours when Lancashire County Council legal services are unavailable, the matter can be discussed with the Urgent Court Business team on-call clerk on 07554 459606 who can arrange for the matter to be considered by a County Court Judge out of hours.

The AMHP should discuss the case with the on-call AMHP manager prior to contacting the Urgent Court Business team. 

3.3 The application

An AMHP acts in an autonomous capacity and is not therefore bound to follow the advice of their managers. AMHPs should receive the legal advice and support that an employer would normally provide to an employee who is involved in legal proceedings by virtue of the nature of their employment.

Where consideration is being given to making an application to the County Court to displace a nearest relative, the AMHP should make contact with the AMHP Service Team Managers, or AMHP Operations Manager and legal services at the earliest opportunity to discuss the case.

Case notes must be maintained to reflect all actions taken and any decision-making pertinent to the case.

Following discussion, and if appropriate, an application will be made to the County Court for an initial hearing, which will be heard and determined by a Judge, normally in Chambers (i.e. not in open Court). The AMHP seeking to displace the nearest relative is acting in a personal, autonomous capacity and will therefore be required to attend the County Court in which the hearing takes place and will be represented by a legal representative appointed by Lancashire County Council legal services.

When making an application to the Court, the information required by the court will depend on the grounds for the application and the specific circumstances of the case.

Information required to support all section 29 MHA applications

An up-to-date social circumstances report by the AMHP seeking the order providing the evidence for the Court to consider, including:

• Name and professional qualifications of the AMHP;
• A short history of involvement with the patient;
• Diagnosis of the mental disorder;
• Why the patient should be detained under the MHA or accepted into guardianship;
• Risks to / from the patient;
• Actions of the nearest relative, including a history of objection / discharge (if any);
• Proposed care plan for the patient;
• A statement of agreement from the proposed nearest relative (or reference made as to why none is proposed);
• A report by a medical practitioner. In usual circumstances, this report would be provided by a doctor approved under section12(2) of the MHA as the Court will seek to be satisfied that the medical examination has been undertaken by a practitioner experienced in the assessment of mental disorder..

Documents will be served to all persons party to proceedings in line with requirements set out by the Court.

If the patient has any concerns that any information given to the Court on their views on the suitability of the nearest relative may have implications for their own safety, an application can be made to the court seeking its permission not to make the current nearest relative a party to the proceedings. The reasons for the patients concerns should be set out clearly in the application

(Para 5.21 MHA Code of Practice).

 3.4 The nominated person

When applying to displace a nearest relative, AMHPs should nominate someone to become the nearest relative in the event that application is successful. Wherever practicable, they should first consult with the patient about the patient’s own preferences and any concerns they have about the person the AMHP proposes to nominate. The AMHP should also seek the agreement [preferably in writing] of the proposed nominee prior to an application being made, although this is not a legal requirement.

(Para 5.19 MHA Code of Practice).

3.5 Local authority as nearest relative

If there is no suitable person who is willing to be nominated, the AMHP should nominate the Head of Service for the service area where the person’s primary needs are being / would be met.

(The names of individual Heads of Service have not been included in this policy as postholders can change. The names of current postholders will be circulated to AMHPs separately and re-sent when there are changes).

Adults – The details of the relevant Head of Service for Adult Social Care will be provided to the AMHP either by the Lancashire County Council team supporting the person or by an AMHP Team Manager / Operations Manager.

 Children and Young People – This will always be Head of Service for Children in Our Care and Leaving Care

The AMHP Operations Manager or Mental Health Service Manager must be informed if a there is no suitable person willing to be nominated prior to the appointment of a Head of Service as corporate nearest relative. The Head of Service will consider and conflict of interest prior to accepting the role of nearest relative. Where this is considered, an alternative Head of Service will be contacted to agree to undertaking this role.

Where a corporate nearest relative is appointed, the local authority acquires duties under section 116 MHA:

…the authority shall arrange for visits to be made to him on behalf of the authority and shall take *such other steps* in relation to the patient while in hospital [, independent hospital or care home] as would be expected to be taken by his parents.

(Section 116(1) MHA)

 ‘Such other steps’…could include seeking a discussion with the hospital doctors about the patients condition, ensuring the patient’s domestic arrangements are catered for during the stay in hospital, and providing a child patient with toys and reading matter (Jones, Mental Health Act Manual).

The Head of Service m)ay nominate another officer of the local authority (e.g. the allocated worker) to perform the duties under s.116 MHA.

Please see Appendix 3 – Rights, Duties and Expectations of the Corporate Nearest Relative

 3.6 Duration of displacement and storage of court order

The County Court can specify any length for the duration of an Order. However, if clarification is not given then the following will apply:

An Order made on the grounds of a nearest relative’s ‘unreasonable objection’ or their ‘exercising power of discharge without due regard,’ will expire at the point at which the patient ceases to be liable to be detained under the Act (or subject to guardianship); or (if not subject to either of these at the time the order is made) after three months from the date the Order is made.

Orders made on the grounds that the nearest relative is ‘incapable of acting as such’, or is ‘otherwise unsuitable’ or where a nearest relative is appointed because the person had no nearest relative, remain in force indefinitely unless otherwise specified by the Court.

Only a County Court (or another court on appeal) can legally vary or discharge an Order appointing an acting nearest relative (section 29(5) and section 30 MHA 1983).

 A copy of the Court Order should be provided to:

• The patient;
• The local authority (uploaded to LAS / LCS Documentum for reference);
• The detaining hospital / hospital Trust Mental Health Law Office.

3.7 Local authority as nearest relative for children in our care

Where a patient who is a child or young person is in the care of a local authority by virtue of a care order within the meaning of the Children Act 1989, the authority shall be deemed to be the nearest relative of the patient in preference to any person (except the patient’s husband or wife or civil partner, if any).

(Section 27 MHA)

The Head of Service for Children in Our Care and Leaving Care will be considered the nearest relative of any child or young person in the care of Lancashire County Council for the purposes for section 27 MHA (see Section 3.5, Local authority as nearest relative).

The AMHP will need to satisfy themselves that the child or young person is subject to a care order by ensuring they have had sight of the care order (available on the documentum section of the child’s LCS record or by requesting this from the allocated worker or team).

Those taking decisions under the Act must be clear about who has parental responsibility. When seeking to identify who has parental responsibility for the child or young person, practitioners should always check whether the child or young person’s medical and/or social service files include any relevant court orders, and request copies of any such orders. These orders may include care orders, child arrangements orders, special guardianship orders…

(Para 19.8 MHA Code of Practice)

 3.8 Consultation with the corporate nearest relative

Where a person has a corporate nearest relative (whether by court appointment under section 29 MHA or by virtue of section 27 MHA in the case of a child or young person in our care) the AMHP must seek to contact the corporate nearest relative for the purposes described in section 11 MHA (i.e. to inform the nearest relative of the making of a section 2 MHA application or to consult the nearest relative regarding any potential objections prior to the making of a section 3 MHA application).

The AMHP should inform the corporate nearest relative of their rights but also their responsibilities under section 116 MHA (see Section 3.5, Local authority as nearest relative).

The AMHP should consult directly with the relevant Head of Service as corporate nearest relative. Where the relevant Head of Service is not available the AMHP should seek guidance from the AMHP Operations Manager.

 4. Case Example

A 33-year man old resides with his mother. His first contact with mental health services was at 21 years of age when he was detained under section 2 of the MHA (s.2 MHA). He was diagnosed with anxiety and depression with psychotic features. He had several subsequent hospital admissions under s.2 and s.3 MHA.

More recently, there has been a recurrence of offending behaviour and following arrest for criminal damage and stalking he is noted to be exhibiting relapse signs of psychosis. He is assessed under the MHA and detained under s.2 MHA for assessment in hospital. His mother is identified as the nearest relative under s.26 MHA and following his admission she decides to exercise her right to order his discharge from hospital. The Responsible Clinician (inpatient consultant psychiatrist in charge of his care) furnishes a ‘barring order’ certifying that the man is likely to act in a dangerous manner if discharged which prevents the nearest relative from discharging him.

During the admission under s.2 MHA (which lasts for up to 28 days) there is a request for a MHA assessment to consider further detention under s.3 MHA (up to 6 months) for continued treatment. As per the requirements of s.11 MHA, the AMHP consults with the mother (as nearest relative) to establish whether she objects to a s.3 MHA application being made. The AMHP is aware that historically the nearest relative has objected to s.3 MHA applications but has later retracted these objections. On this occasion the nearest relative expresses an objection stating that the s.2 MHA admission was unlawful, that her son is not mentally unwell and furthermore he is innocent of all criminal charges against him. She agrees to await the outcome of the assessment before making a final decision.

The MHA assessment takes place on the ward and the man continues to present with symptoms of psychosis, thought disorder and paranoia. He does not believe he is mentally unwell and it is felt highly likely that he would stop treatment if he was not in hospital. Doctors complete medical recommendations for continued detention under s.3 MHA for further treatment.

The AMHP contacts the nearest relative to inform her of the outcome of the MHA assessment, and explains the views and concerns of the assessors, however the nearest relative continues to object to a s.3 MHA application being made. The view of the AMHP is that the objection is ‘unreasonable’ as per s.29(3c) MHA and therefore decides to apply to the County Court for displacement of nearest relative. With support from Lancashire County Council legal services, the AMHP completes the necessary report for the Court’s consideration and legal services submit the application to Court. The AMHP informs the nearest relative of the action being taken and serves the legal papers.

The making of the s.29 MHA application to the County Court has the effect of extending the s.2 beyond the usual 28 days expiry until the matter is dealt with by the Court.

Both the man and his mother as nearest relative are party to proceedings and entitled to representation during the proceedings. Due to considerable delays in the Court processes (during the early COVID pandemic), the hearing does not take place promptly leading legal advocates to request a further MHA assessment on three subsequent occasions to determine whether the criteria for s.3 continue to be met – on each occasion the assessors agree detention under s.3 MHA remains necessary.

An interim hearing takes place and the judge appoints the local authority as interim nearest relative authorising the making of an application for s.3 MHA whilst proceedings continue.

A final hearing takes place some months later. The nearest relative, AMHP and responsible clinician attend as witnesses. The AMHP has representation from a barrister instructed by Lancashire County Council legal services. The man himself also participates via a video link and also has legal representation. The AMHP and responsible clinician are cross-examined by legal advocates.

The barrister for the nearest relative questions the AMHP at some length regarding the grounds for displacement under s.29(3c) MHA re ‘unreasonable objection’. The AMHP explains their reasoning and indicates their view that the correct grounds have been applied and continue to be met.

The hearing lasts a full day. No decision is given by Judge on that day. The decision is delivered on a later date via video link. The mother is displaced as nearest relative under s.29(3c) MHA for the remainder of the current period of detention. In the absence of any other suitable person to be appointed as nearest relative, the local authority is appointed as nearest relative for the duration of the period of detention, with the nearest relative role and functions passing to the relevant Head of Service.

5. Further Information

Mental Health Act 1983

Mental Capacity Act 2005

Code of Practice Mental Health Act 1983

Reference Guide to Mental Health Act 1983

Appendix 1 – Template for the Delegation of the Functions of the Nearest Relative

Appendix 1 – Template for the delegation of the functions of the nearest relative (opens in Word)

Appendix 2 – Legal Advice Request

Appendix 2 – Legal Advice Request (opens in Word)

Appendix 3 – Rights, Duties and Expectations of the Corporate Nearest Relative

The Rights of the Nearest Relative:

1. To apply for admission to hospital or reception into guardianship under sections 2, 3, 4 and 7 MHA. (This right is very rarely used nationally – an AMHP is almost always the applicant)
2. Where applications are made by the AMHPs, to be informed of the application (section 2) or consulted (sections 3 and 7). (AMHPs are required to do this and may be challenged in court if this is not done).
3. To notify the professionals involved of any objection they have to the making of an application for sections 3 or 7.

(This will prevent the making of an application for s.3 or 7 unless the AMHP goes to court to displace the nearest relative for “unreasonably objecting”).

4. To be informed of their right of discharge under section 23(2)(a) in relation to sections 2, 3 and 7.

(All AMHPs should do this directly where possible or should provide this in writing).

5. To have their wishes considered by AMHPs when considering an application (this applies to any relative or carer, not just the nearest relative)

(The views of the nearest relative should be sought and clearly recorded, and given due weight in consideration of making an application).

6. To require the local authority to direct an AMHP to consider the case for admission to hospital, and to be informed in writing of the reasons where no application is made.

(This places a duty on the AMHP to consider the case, but not to make an application unless thought appropriate).

7. To discharge the patient from detention in hospital or guardianship or Community Treatment Order.

In the case of hospital detention, the nearest relative is required to give 72 hours’ notice to the hospital managers within which period the responsible clinician (RC) may bar the discharge by certifying that in his/her opinion the person, if discharged, would be likely to ‘act in a manner dangerous to other persons or to himself’.

8. To apply to a Mental Health Tribunal within 28 days to appeal against a notice barring their discharged of the patient detained on a section 3.
9. To appeal against a hospital order (section 37) (without restrictions) within 6 months of the making of the order and subsequently every year.
10. To appeal against a guardianship order (section 37) made in a court within 12 months of the making of the order and subsequently every year.

Expectations:

Where a corporate nearest relative is appointed, the local authority acquires duties under section 116 MHA:

…the authority shall arrange for visits to be made to him on behalf of the authority and shall take such other steps in relation to the patient while in the hospital [, independent hospital or care home], as would be expected to be taken by his parents.

(Section 116(1) MHA

The Head of Service may nominate another officer of the local authority (e.g. the allocated worker) to perform the duties under s.116 MHA.

The nominated officer should inform the person that the relevant Head of Service has been appointed as their nearest relative, being clear about what the role entails and explaining that the role provides important safeguards under the Act.

The nominated officer should seek the person’s consent to keep the corporate nearest relative informed about their progress, views and wishes. The nearest relative does not have an automatic right to information about a detained person from a hospital. The service user can request information is not shared with their nearest relative and “in almost all cases the information is not to be shared if the patient objects” MHA Code of Practice (CoP) 4.35.

The person should be offered the opportunity to speak to the corporate nearest relative directly if they wish to do so and the nominated officer should make arrangements for this with the relevant Head of Service.

Where the person is detained in hospital, the relevant Head of Service / nominated officer will need to maintain regular contact, preferably face-to-face. Fortnightly contact is recommended but this will be at the discretion of the relevant Head of Service.

The relevant Head of Service / nominated officer should seek to understand events leading to the admission and should obtain the person’s views about their admission, care and treatment, as well as their perception of their progress and support needs.

For those detained under s.2MHA the relevant Head of Service / nominated officer should bear in mind that if a further MHA assessment is requested to consider s.3 MHA, the Head of Service will be asked by the AMHP if they object to an application for s.3 MHA being made. The nominated officer must ensure the Head of Service is appraised of all relevant information in order that they are able to offer an informed opinion when consulted.

Conflicts of Interest and Disagreements:

Fulfilling the role of corporate nearest relative creates inherent issues with impartiality. The role is an independent safeguard within the MHA, and this is inevitably compromised to some degree by the corporate nearest relative / nominated officers and AMHPs being employees of the same organisation. That said, the corporate nearest relative should seek to carry out their role with care and integrity, and the AMHP should not make any assumptions that the corporate nearest relative will share their view about the person. The AMHP will discuss with the Head of Service any potential conflict of interest, and if so another Head of Service will be approached as appropriate. All decisions will be made in the best interest of the person and recorded appropriately.