Nearest Relatives and Next of Kin

Originally published in December 2003

One of the greatest misconceptions in the health sector is to ascribe to the next of kin a legal status. They have no such legal status: The phrase "next of kin" is not one recognised by the law. Next of kin can certainly not either purport to consent on an individual's behalf or manage their affairs (unless they also have an appropriate Power of Attorney or are a duly appointed receiver).

However, there is a different, but similar term, which does carry legal status, namely that of the "nearest relative" under the Mental Health Act 1983.

The nearest relative of a patient detained under the Mental Health Act is determined by Section 26 of the Act. This provides a strict order of precedence to decide which relative is to exercise the role of nearest relative. Although the fact that the patient cannot chose his nearest relative has been confirmed by the Courts to breach the Human Rights Act, nevertheless the provisions of the Act are still in force.

The nearest relative, contrary to the position of the next of kin, does have significant powers and rights in connection with the admission and detention of a patient detained under the Act. These include the following:

There is a statutory requirement on an Approved Social Worker (ASW) to inform the nearest relative of a patient who it is proposed will be made or has been made the subject of an application for admission under Section 2 that that application is to be or has been made (Section 11(3)) and the nearest relative must also be informed of his power to apply for discharge of a patient from the Section. If the ASW has been unable to inform the nearest relative before the patient's admission to hospital, the ASW should then notify the hospital as soon as this has been done.

The ASW must consult the nearest relative before making an application under Section 3 for admission for treatment, unless such consultation is not reasonably practicable or would involve unreasonable delay. If the nearest relative objects to the application being made, it cannot proceed unless the County Court displaces the nearest relative.

The nearest relative should be given a copy of any written information given to the patient detained under the Act, as required by Section 132(1) and (2), unless the patient otherwise requests.

The nearest relative can make an "order for discharge" under Section 23 of the Act in respect of a patient detained under Section 2 or 3 of the Act...