The Mental Health (Northern Ireland) Order 1986

Functions of nearest relative of patient N.I.

Definition of “nearest relative” N.I.

32.—(1) For the purposes of this Order “relative” means any of the following, that is to say—

(a) spouse [F1 or civil partner] ;

(b) child;

(c) parent;

(d) brother or sister;

(e) grandparent;

(f) grandchild;

(g) uncle or aunt;

(h) nephew or niece.

(2) In deducing relationships for the purposes of this Article, any relationship of the half-blood shall be treated as a relationship of the whole blood and an illegitimate person shall be treated as the legitimate child of

[F2 (a) his mother, and

(b) if his father has parental responsibility for him within the meaning of the Children (Northern Ireland) Order 1995, his father.]

(3) In this Order, subject to the provisions of this Article and to the following provisions of this Part, the “nearest relative” means the person first listed in paragraph (1) who is caring for the patient, or was so caring immediately before the admission of the patient to a hospital or his reception into guardianship, failing whom the person first so listed who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood, and the elder or eldest of two or more relatives listed in any sub-paragraph of that paragraph being preferred to the other or others of those relatives, regardless of sex.

(4) Where the person who, under paragraph (3), would be the nearest relative of a patient—

(a) in the case of a patient ordinarily resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, is not so resident; or

(b) being the spouse [F3 or civil partner] of the patient, is permanently separated from the patient, either by agreement or under an order of a court, or has deserted or has been deserted by the patient for a period which has not come to an end; or

(c) not being the spouse[F4 , civil partner] or parent of the patient, is for the time being under 18 years of age;F2 . . .

Sub‐para. (d) rep. by 1995 NI 2

the nearest relative of the patient shall be ascertained without regard to that person.

(5) In this Article “spouse” includes a person who is living with the patient as if he or she were the spouse of the patient (or, if the patient is for the time being an in-patient in a hospital, was so living until the patient was admitted), and has been or had been so living for a period of not less than 6 months; but a person shall not be treated by virtue of this paragraph as the nearest relative of a married patient [F5 or a patient who has a civil partner] unless the spouse [F6 or civil partner] of the patient is disregarded by virtue of paragraph (4)(b).

(6) A person, other than a relative, with whom the patient ordinarily resides (or, if the patient is for the time being an in-patient in a hospital, last ordinarily resided before he was admitted), and with whom he has or had been ordinarily residing for a period of not less than 5 years, shall be treated for the purposes of this Order as if he were a relative but—

(a) shall be treated for the purposes of paragraph (3) as if mentioned last in paragraph (1); and

(b) shall not be treated by virtue of this paragraph as the nearest relative of a married patient [F7 or a patient who has a civil partner] unless the spouse [F8 or civil partner] of the patient is disregarded by virtue of paragraph (4)(b).

(7) References to the nearest relative of a patient in any provision of this Order requiring the responsible[F9 authority] to inform the nearest relative of a patient of any matter or furnish the nearest relative of a patient with any document shall be construed as references to the person (if any) appearing to the responsible[F9 authority] to be the nearest relative of the patient.

F1 Words in art. 32(1)(a) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 140(2)(a) (with regs. 6-9)

F2 1995 NI 2

F3 Words in art. 32(4)(b) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 140(2)(b)(i) (with regs. 6-9)

F4 Words in art. 32(4)(c) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 140(2)(b)(ii) (with regs. 6-9)

F5 Words in art. 32(5) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 140(2)(c)(i) (with regs. 6-9)

F6 Words in art. 32(5) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 140(2)(c)(ii) (with regs. 6-9)

F7 Words in art. 32(6)(b) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 140(2)(c)(i) (with regs. 6-9)

F8 Words in art. 32(6)(b) inserted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 140(2)(c)(ii) (with regs. 6-9)

F9 1994 NI 2

Modifications etc. (not altering text)

C1 Art. 32 applied (with modifications) (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2012 (S.R. 2012/403), regs. 1, 3(3)(bb), 4

C2 Art. 32 applied (with modifications.) (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2013 (S.R. 2013/22), regs. 1, 3(3)(s), 4

[F10 Children and young persons in care N.I.

33.   Where a patient who is a child or young person is in the care of [F11 an] [F12 HSC trust] by virtue of a care order within the meaning of the Children (Northern Ireland) Order 1995, the F13 ... trust shall be deemed to be the nearest relative of the patient in preference to any person except the patient's [F14 spouse or civil partner] (if any).]

F10 1995 NI 2

F11 Word in art. 33 substituted (1.4.2022) by Health and Social Care Act (Northern Ireland) 2022 (c. 3), s. 8(1)(b), Sch. 1 para. 75(a); S.R. 2022/102, art. 2(b)

F12 Words in Order substituted (1.4.2009) by Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1), ss. 32, 34(3), Sch. 6 para. 1(1)(d) (with Sch. 6 para. 1(3)); S.R. 2009/114, art. 2

F13 Words in art. 33 omitted (1.4.2022) by virtue of Health and Social Care Act (Northern Ireland) 2022 (c. 3), s. 8(1)(b), Sch. 1 para. 75(b); S.R. 2022/102, art. 2(b)

F14 Words in art. 33 substituted (13.1.2020) by The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019 (S.I. 2019/1514), regs. 1(2), 140(3) (with regs. 6-9)

Modifications etc. (not altering text)

C3 Art. 33 applied (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2012 (S.R. 2012/403), regs. 1, 3(3)(cc), 4

C4 Art. 33 applied (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2013 (S.R. 2013/22), regs. 1, 3(3)(t), 4

Minors under guardianship, etc. N.I.

34.— [F15 (1) Where—

(a) a guardian has been appointed for a person who has not attained the age of 18 years; or

(b) a residence order (as defined by Article 8 of the Children (Northern Ireland) Order 1995) is in force with respect to such a person,

the guardian (or guardians, where there is more than one) or the person named in the residence order shall, to the exclusion of any other person, be deemed to be his nearest relative.]

(2) Article 32(4) shall apply in relation to a person who is, or who is one of the persons, deemed to be the nearest relative of a patient by virtue of this Article, as it applies in relation to a person who would be the nearest relative under paragraph (3) of that Article.

[F15 (3) In this Article "guardian" does not include a guardian under this Part.]

Para. (4) rep. by 1995 NI 2

F15 1995 NI 2

Modifications etc. (not altering text)

C5 Art. 34 applied (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2012 (S.R. 2012/403), regs. 1, 3(3)(dd), 4

C6 Art. 34 applied (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2013 (S.R. 2013/22), regs. 1, 3(3)(u), 4

Assignment of functions by nearest relative N.I.

35.—(1) The nearest relative of any patient who is liable to be detained or subject to guardianship under this Part may assign his functions as such under this Order to any person (other than the patient) who indicates in writing his willingness to exercise those functions.

(2) Any person who wishes to assign, under this Article, his functions as nearest relative under this Order shall give notice of the assignment in the prescribed form to the responsible[F16 authority].

(3) On the receipt by the responsible[F16 authority] of the notice referred to in paragraph (2), the provisions of this Order shall, subject to Article 36(5), apply in relation to the patient as if for any reference to the nearest relative of the patient there were substituted a reference to the person to whom the nearest relative has assigned his functions under this Order and (without prejudice to Articles 36 and 37) shall so apply notwithstanding that the person who was the patient's nearest relative at the time of the assignment is no longer his nearest relative.

F16 1994 NI 2

Modifications etc. (not altering text)

C7 Art. 35 applied (with modifications.) (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2013 (S.R. 2013/22), regs. 1, 3(3)(v), 4

C8 Art. 35 applied (with modifications) (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2012 (S.R. 2012/403), regs. 1, 3(3)(ee)(i), 4

Appointment by county court of acting nearest relative N.I.

36.—(1) The county court may, upon application made in accordance with this Article in respect of a patient, by order direct that the functions under this Order of the nearest relative of the patient shall, during the continuance in force of the order, be exercisable by the applicant, or by any other person specified in the application, being a person who, in the opinion of the court, is a proper person to act as the patient's nearest relative and is willing to do so.

(2) An order under this Article may be made on the application of—

(a) any relative of the patient;

(b) any other person with whom the patient is residing (or, if the patient is then an in-patient in a hospital, was last residing before he was admitted); or

(c) an approved social worker,

but in relation to an application made by an approved social worker paragraph (1) shall have effect as if for the words “the applicant” there were substituted the words “ the responsible [F17 authority] ”.

(3) An application for an order under this Article may be made upon any of the following grounds—

(a) that the patient has no nearest relative within the meaning of this Order, or that it is not reasonably practicable to ascertain whether he has such a relative, or who that relative is;

(b) that the nearest relative of the patient is incapable of acting as such by reason of mental disorder or other illness;

(c) that the nearest relative of the patient unreasonably objects to the making of an application for assessment or a guardianship application in respect of the patient; or

(d) that the nearest relative of the patient has exercised without due regard to the welfare of the patient or the interests of the public his power to discharge the patient from hospital or guardianship under this Part, or is likely to do so.

(4) An order made on the ground specified in paragraph (3)(a) or (b) may specify a period for which it is to continue in force unless previously discharged under Article 37.

(5) While an order made under this Article is in force, the provisions of this Order (other than this Article, Article 37 and Article 71(5)) shall apply in relation to the patient as if for any reference to the nearest relative of the patient there were substituted a reference to the person having the functions of that relative and (without prejudice to Article 37) shall so apply notwithstanding that the person who was the patient's nearest relative when the order was made is no longer his nearest relative.

F17 1994 NI 2

Modifications etc. (not altering text)

C9 Art. 36 applied (with modifications) (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2012 (S.R. 2012/403), regs. 1, 3(3)(ff)(i)(ii), 4

C10 Art. 36 applied (with modifications.) (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2013 (S.R. 2013/22), regs. 1, 3(3)(w), 4

Discharge and variation of orders under Article 36 N.I.

37.—(1) An order made under Article 36 in respect of a patient may be discharged by the county court upon application made—

(a) by the person having the functions of the nearest relative of the patient by virtue of the order;

(b) where the order was made on the ground specified in paragraph (3)(a) or (b) of that Article, or where the person who was the nearest relative of the patient when the order was made has ceased to be his nearest relative, by the nearest relative of the patient.

(2) An order made under Article 36 in respect of a patient may be varied by the county court, on the application of the person having the functions of the nearest relative by virtue of the order or on the application of an approved social worker, by substituting for the first-mentioned person any person who, in the opinion of the court, is a proper person to exercise those functions, being a person who is willing to do so.

(3) If the person having the functions of the nearest relative of a patient by virtue of an order under Article 36 dies, paragraphs (1) and (2) shall apply as if for any reference to that person there were substituted a reference to any relative of the patient, and until the order is discharged or varied under those paragraphs the functions of the nearest relative under this Order shall not be exercisable by any person.

(4) An order under Article 36 shall, unless previously discharged, cease to have effect at the expiration of the period, if any, specified under paragraph (4) of that Article or where no such period is specified—

(a) if the patient was on the date of the order liable to be detained for treatment or subject to guardianship under this Part, or becomes so liable or subject within the period of 3 months beginning with that date, when he ceases to be so liable or subject (otherwise than on being transferred by virtue of Article 28);

(b) if the patient was not on the date of the order, and has not within the said period of 3 months become, so liable or subject, at the expiration of that period.

(5) The discharge or variation under this Article of an order under Article 36 shall not affect the validity of anything previously done in pursuance of the order.

Modifications etc. (not altering text)

C11 Art. 37 applied (with modifications) (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2012 (S.R. 2012/403), regs., 1 3(3)(gg) 4

C12 Art. 37 applied (with modifications.) (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2013 (S.R. 2013/22), regs. 1, 3(3)(x), 4

Procedure on application to county court N.I.

38.  County court rules which relate to applications authorised by this Part to be made to a county court may make provision—

(a) for the hearing and determination of such applications otherwise than in open court;

(b) for the admission on the hearing of such applications of evidence of such descriptions as may be specified in the rules notwithstanding anything to the contrary in any statutory provision or rule of law relating to the admissibility of evidence;

(c) for the visiting and interviewing of patients in private by or under the directions of the court.

Modifications etc. (not altering text)

C13 Art. 38 applied (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2013 (S.R. 2013/22), regs. 1, 3(3)(y), 4

C14 Art. 38 applied (31.3.2013) by Mental Health (Private Hospitals) Regulations (Northern Ireland) 2012 (S.R. 2012/403), regs. 1, 3(3)(hh), 4