What rights do the family have when someone is sectioned?
When someone is sectioned under the Mental Health Act “the Act”, it is often a distressing and confusing time for family members. The Act does however give family members certain important rights.
Who is the nearest relative?
The starting point is to decide who is the patient’s “nearest relative”– this is the family member who has rights under the Act. The “nearest relative” is decided by working down a list:
- husband, wife or civil partner
- a partner who has been living with the patient for more than six months
- son or daughter
- mother or father
- brother or sister
- aunt or uncle
- nephew or niece
- anyone else the patient has been living with for at least five years
What rights does the nearest relative have?
- To order the discharge of a patient detained under section 2 or 3.
- To be consulted prior to admission of their relative under section 3.
- To be informed of a relative’s detention and the patient’s rights.
- To make an application to admit their relative under section 2 or 3.
- To be notified of the forthcoming discharge of the relative (unless the relative requests that information is not supplied).
Of these, the first two are the most significant.
To order discharge or not?
The nearest relative can order a patient’s discharge by writing to the Hospital Mangers. If the patient’s doctor does not object within 72 hours, the patient will be discharged. The patient’s doctor can bar the order for discharge if they consider that if discharged, the patient would be likely to act in a manner dangerous to themselves or others. If a barring order is issued by the doctor, the patient will not be discharged and a Hospital Managers Meeting, which has the power to discharge the patient, will hear the case.
If the Hospital Managers do not discharge the patient, the nearest relative can in some cases, apply for a tribunal which will consider the case and can discharge the patient.
The discharge rights are very important but should be used responsibly. If the discharge has been barred, the nearest relative cannot order a discharge again for another 6 months from the barring order. A nearest relative who has ordered discharge without having regard to the welfare of the patient can be ‘displaced’ so that they are no longer the patient’s nearest relative and will not have the associated rights.
The decision about whether to exercise this right is a very difficult one and can cause family conflict. Understandably, some patients want their nearest relative to order discharge, but if the nearest relative does not think that is in the patient’s interests saying no can be very difficult.
Consultation with Nearest Relative
For Section 2: the nearest relative must, either before or within a reasonable time after, be informed that the patient is to be/has been detained.
For Section 3: The nearest relative must be consulted (unless to do so isn’t practicable or would involve unreasonable delay) before the section 3 application is made and if the nearest relative objects the section cannot go ahead. The consultation is considered an important protection and so mere inconvenience isn’t a good reason not to consult the nearest relative.
If either of these consultations do not take place then the detention could be unlawful.
This guide to family law was provided by the family law team at Cartwright King Solicitors.