Guidance

Information for nearest relatives

Updated 16 August 2023

Overview

‘Nearest relative’ is a legal term and means the patient’s family member who has certain rights and powers under the Mental Health Act. It is important to remember that the nearest relative and the patient’s ‘next of kin’ may be 2 quite different people. The act provides a list of people who may be eligible to be the nearest relative. The approved mental health professional involved in your relative’s detention will look at their personal circumstances and identify who this should be.

Your role as the nearest relative

As the nearest relative you may play an important part in the scheme of the act. It gives you the right to make certain applications in respect of the patient’s admission to hospital. You may also receive other information about the patient’s detention, if they do not object.

You also have the right to apply to the tribunal for your relative’s discharge.

If the patient applies to the tribunal or the case is referred to the tribunal, you will be told the hearing date and invited to attend and take part. This will be at the tribunal panel’s discretion and only if the patient agrees.

If you do not want to attend the hearing, your views about your relative’s detention should be included in the social circumstances report that must be prepared for the tribunal.

If you start the tribunal proceedings by making an application to the tribunal, you may appoint a registered medical practitioner (subject to funding). This will be with the help of a legal representative (if you want one). The medical practitioner can:

• visit and examine the patient
• attend the hearing
• be heard by the tribunal
• call witnesses and cross-examine

If it is your application to the tribunal, you will be entitled to legal aid funding for that application. You will also receive copies of documents received by the tribunal about the case.

What to expect from a tribunal

A tribunal is an independent judicial body that reviews the need for the continued detention of patients in hospital. The tribunal may also review guardianship and community treatment orders. Tribunal hearings aim to be as flexible as particular circumstances may allow within a legal framework. This is to make sure that they have access to all relevant information, and that the hearing is fair to the patient.

The tribunal will consist of 3 members. There will be a tribunal judge who chairs the hearing, and 2 tribunal members – one will be a psychiatrist and the other will have non-medical specialist mental health expertise.

None of these people will be:

• from or connected with the hospital where your relative is detained
• the authority managing the hospital
• from the community services involved in any guardianship or community treatment order

The tribunal considers if the patient’s detention under ‘section’ (or the guardianship or community treatment order) needs to continue, or if it should be discharged. For detained patients, if the tribunal does not discharge they can make recommendations to the hospital to facilitate future discharge.

What happens at the hearing

The hearing is usually held in private. The tribunal holds hearings in nearly all cases. The exception to this relates to some patients on a community treatment order, where patients aged 18 years and over can decide not to attend or be represented at the hearing.

If the patient decides not to attend, the tribunal will look at all the papers. This will include your views that have been submitted as part of the social circumstances report.

At the beginning of the hearing, the tribunal judge will explain how the tribunal intends to hear the case. Usually present at the hearing will be:

• the patient
• the clinician responsible for their care
• a professional concerned with community support and care
• a nurse if the patient is being treated in hospital
• any legal representative

It is unusual for a nearest relative to be represented except in circumstances where they made the original application to the tribunal.

What happens after the hearing

If you made the original application, you will receive a copy of the tribunal’s decision. You may have the right to seek to appeal against the decision made by the tribunal. These rights will be explained in writing and forwarded to you with the tribunal’s decision.

If you did not make the application but you attend the hearing, you will probably hear the panel’s decision announced on the day.

Claim expenses

If you attend the tribunal hearing as an applicant or a witness, you may request financial assistance from the tribunal with respect to the following:

• travelling expenses
• loss of earnings up to certain limits, where applicable

You can claim expenses by completing a claims form. You can also collect a claims form to complete from the finance officer at:

HM Courts and Tribunals Service
First-tier Tribunal (Mental Health)
The Finance Officer
PO Box 8793
5th Floor
Leicester
LE1 8BN

Find out more

If you require more information about how the nearest relative is appointed, your role and rights as the nearest relative:

• you may wish to take independent legal advice from your own solicitor – if you do not have one, the Law Society will be able to help you find specialist mental health lawyers in your geographical area
• there may be carer’s advocacy and support services at the hospital where your relative is detained
• you may wish to seek guidance and advice from specialist mental health charities and organisations such as MIND or Rethink

You can apply to the mental health tribunal, or collect an application form from the customer service team at:

HM Courts and Tribunals Service
First-tier Tribunal (Mental Health)
The Finance Officer
PO Box 8793
5th Floor
Leicester
LE1 8BN

You can also contact the customer service team by email at [email protected], or by telephone on 0300 123 2201.