LEGAL EAGLE: Being made ‘nearest relative’ when a person is sectioned

“My family member has been sectioned under the Mental Health Act and I have been told that I am their nearest relative. What does this mean?”

Tuesday, 23rd February 2021, 12:00 am
If someone is in hospital under a section 2 or 3, the MHA gives certain rights to their nearest relative.

What does being sectioned under the Mental Health Act mean? When someone is “sectioned”, this means that they are detained under the Mental Health Act 1983 (MHA). Being “sectioned” usually refers to the person being required to stay in hospital for a period of either 28 days for assessment (section 2), or minimum periods of 6 months for medical treatment (section 3). People can only be detained under the MHA if two doctors (one of whom is a specialist psychiatrist) and a social worker who is trained to deal with mental health work all agree that they need to be detained in hospital, and there is no reasonable alternative to that.

What does being someone’s nearest relative mean?

If someone is in hospital under a section 2 or 3, the MHA gives certain rights to their nearest relative. As someone’s nearest relative you must be consulted before your relative is detained under a section 3, unless this would not be reasonably practicable, or it would cause unreasonable delay.

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Being a nearest relative gives you certain powers under the MHA in relation to your relatives’

detention in hospital. If your relative is detained under section 2 or section 3 of the MHA, then you can object to this. You can do so by ordering discharge of your relatives’ section by giving the Hospital Managers 72 hours’ notice in writing of your intention to discharge the section.

What would happen if I ordered a discharge of my relative’s section?

You relative’s responsible clinician (RC) will have to decide within the 72-hour notice period whether to allow you to order the discharge or to bar you from doing so. If the RC issues a barring order then the Hospital Managers’ will decide whether you should be allowed to discharge the section, they will usually hold a hearing to consider this.

If your relative is detained under a section 3 and your order of discharged is barred, then you will

have the right to appeal to the Mental Health Tribunal. Legal aid is available for appeals to the Mental Health Tribunal on a non means tested basis.

If it is decided that you have ordered your relatives discharge without due regards to your relative’s welfare or to the interests of the public, then an application could be made to the court. The application could be to have you removed from the Nearest Relative Role and replaced with someone else.

If the RC does not issue a barring order, then your relative’s section will be discharged after the 72-hour notice period comes to an end.

Ben Hoare Bell LLP has specialist Mental Health Solicitors who can help with issues surrounding Mental Health law. To speak to a solicitor please contact us on 0191 565 3112 or email [email protected] Visit www.benhoarebell.co.uk for further information.