The nearest relative and s 3 of the Mental Health Act 1983 again

Abstract

The nearest relatives of mental patients play an important role. They refer them informally or formally (by making an application for their admission) to hospital; they are consulted about applications for admission for treatment under s 3 of the Mental Health Act (made by Approved Mental Health Professionals); they can order, subject to a medical veto, the discharge of some compulsorily detained patients; they make applications to the Mental Health Review Tribunal, etc. However, choosing which is the nearest relative for this purpose is not open to even a competent mental patient but has to be selected from a prescribed list under s 26 of the Mental Health Act 1983 though a patient can initiate proceedings to displace their statutory “nearest relative”. This has resulted in court cases, most recently JT v United Kingdom [2000] 1 FLR 909. Further, when an application for treatment under s 3 of the Mental Health Act 1983 is made by an Approved Mental Health Professional, s 11(4) of the Act requires that applicant, first, to consult with the patient’s nearest relative. This issue arose in TW v Enfield LBC [2014] EWCA Civ. 362. This paper considers and comments on these and other issues and identifies two unsatisfactory features of the law and makes recommendations for reform.