Q&A - What rights does the Nearest Relative of a mental health detainee have?

Q: My son has been detained under section 2 of the Mental Health Act. I have been informed that I am his ‘Nearest Relative’. I disagree with his detention but don’t know if I have any rights to do anything about it. What do you advise?

A: ‘Nearest Relative’ is different to ‘next of kin’. Being your son’s ‘Nearest Relative’ means you can ensure his rights are protected whilst he is unwell in hospital.

Under section 2 of the Mental Health Act 1983 persons can be detained for up to 28 days if hospital doctors believe they are suffering from a mental disorder requiring assessment to determine risk to their own health or safety or for the protection of others.

As nearest relative you have the right to be consulted by doctors and health professionals about decisions they wish to make for your son and to receive information from the hospital, unless your son requests otherwise. You have the right to request discharge off section 2. You can write to the hospital managers providing them with 72 hours’ notice that you wish your son to be discharged from hospital.

The doctors can challenge your discharge notice but if they don’t your son can leave the hospital after 72 hours. If the doctors object, a Hospital Managers’ Hearing will be arranged to consider your sons’ detention. If your discharge application is blocked you cannot reapply for six months. If it is considered that you have exercised your right to request your son’s discharge without due regard to his welfare or the interests of the general public, you may be displaced as the nearest relative.

You should seek legal advice in your own right, independent of any legal advice sought by your son. This is a highly complicated area of law so do seek specialist advice from a mental health solicitor.  Means tested public funding may be available.

(Article 20/08/2018)