Mental Health Act 1983

Functions of relatives of patientsE+W

26 Definition of “relative” and “nearest relative”.E+W

(1)In this Part of this Act “relative” means any of the following persons:—

(a)husband or wife [F1or civil partner] ;

(b)son or daughter;

(c)father or mother;

(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 section, 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 section 3 of the Children Act 1989, his father.]

(3)In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means the person first described in subsection (1) above 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 described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.

(4)Subject to the provisions of this section and to the following provisions of this Part of this Act, where the patient ordinarily resides with or is cared for by one or more of his relatives (or, if he is for the time being an in-patient in a hospital, he last ordinarily resided with or was cared for by one or more of his relatives) his nearest relative shall be determined—

(a)by giving preference to that relative or those relatives over the other or others; and

(b)as between two or more such relatives, in accordance with subsection (3) above.

(5)Where the person who, under subsection (3) or (4) above, would be the nearest relative of a patient—

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

(b)is the husband or wife [F3or civil partner] of the patient, but 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)is a person other than the husband, wife [F4civil partner,] , father or mother of the patient, and is for the time being under 18 years of age; F5 . . .

F5(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the nearest relative of the patient shall be ascertained as if that person were dead.

(6)In this section “husband”[F6, “wife”and “civil partner” include a person who is living with the patient as the patient's husband or wife or as if they were civil partners”] , as the case may be (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 six months; but a person shall not be treated by virtue of this subsection as the nearest relative of a married patient [F7or a patient in a civil partnership unless the husband, wife or civil partner] of the patient is disregarded by virtue of paragraph (b) of subsection (5) above.

(7)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 five years, shall be treated for the purposes of this Part of this Act as if he were a relative but—

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

(b)shall not be treated by virtue of this subsection as the nearest relative of a married patient [F8or a patient in a civil partnership unless the husband, wife or civil partner] of the patient is disregarded by virtue of paragraph (b) of subsection (5) above.

Textual Amendments

F2S. 26(2)(a)(b) substituted (14.10.1991) by S.I. 1991/1881 art.3

F5In s. 26(5) the word “or” and paragraph (d) repealed (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108(7), Sch. 15 (with Sch. 14 paras. 1(1), 27(4)); S.I. 1991/828, art. 3(2)

F6Words in s. 26(6) substituted (1.12.2007) by Mental Health Act 2007 (c. 12), ss. 26(4)(a), 56, (with Sch. 10); S.I. 2007/2798, art. 3

F7Words in s. 26(6) substituted (1.12.2007) by Mental Health Act 2007 (c. 12), {ss. 26(4(b))}, 56, (with Sch. 10); S.I. 2007/2798, art. 3

F8Words in s. 26(7)(b) substituted (1.12.2007) by Mental Health Act 2007 (c. 12), ss. 26(5), 56, (with Sch. 10); S.I. 2007/2798, art. 3

[F927 Children and young persons in care.E+W

Where—

(a)a patient who is a child or young person is in the care of a local authority by virtue of a care order within the meaning of the Children Act 1989; or

(b)the rights and powers of a parent of a patient who is a child or young person are vested in a local authority by virtue of section 16 of the Social Work (Scotland) Act 1968,

the authority shall be deemed to be the nearest relative of the patient in preference to any person except the patient’s husband or wife [F10or civil partner] (if any).]

Textual Amendments

28 Nearest relative of minor under guardianship, etc.E+W

[F11(1)Where—

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

(b)a [F12person is named in a child arrangements] order (as defined by section 8 of the Children Act 1989) [F13as a person with whom a person who has not attained the age of eighteen years is to live],

the guardian (or guardians, where there is more than one) or the person [F14so named (or the persons so named, where there is more than one)] shall, to the exclusion of any other person, be deemed to be his nearest relative.]

(2)Subsection (5) of section 26 above 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 section as it applies in relation to a person who would be the nearest relative under subsection (3) of that section.

[F15(3) In this section “ guardian ” [F16 includes a special guardian (within the meaning of the Children Act 1989), but ] does not include a guardian under this Part of this Act. ]

(4)In this section “court” includes a court in Scotland or Northern Ireland, and “enactment” includes an enactment of the Parliament of Northern Ireland, a Measure of the Northern Ireland Assembly and an Order in Council under Schedule 1 of the M1Northern Ireland Act 1974.

Textual Amendments

F12Words in s. 28(1)(b) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 46(a)(i); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F13Words in s. 28(1)(b) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 46(a)(ii); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F14Words in s. 28(1) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 46(b); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F16Words in s. 28(3) inserted (30.12.2005) by 2002 c. 38, ss. 139, 148, Sch. 3 para. 41 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o)

Marginal Citations

29 Appointment by court of acting nearest relative.E+W

(1)The county court may, upon application made in accordance with the provisions of this section in respect of a patient, by order direct that the functions of the nearest relative of the patient under this Part of this Act and sections 66 and 69 below shall, during the continuance in force of the order, be exercisable by [F17the person specified in the order] .

[F18(1A)If the court decides to make an order on an application under subsection (1) above, the following rules have effect for the purposes of specifying a person in the order—

(a)if a person is nominated in the application to act as the patient's nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);

(b)otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient's nearest relative and is willing to do so.]

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

[F19(za)the patient;]

(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 [F20approved mental health professional] ;

F21. . .

(3)An application for an order under this section may be made upon any of the following grounds, that is to say—

(a)that the patient has no nearest relative within the meaning of this Act, 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 admission for treatment or a guardianship application in respect of the patient; F22. . .

(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 F23. . . under this Part of this Act, or is likely to do so.[F24; or

(e)that the nearest relative of the patient is otherwise not a suitable person to act as such.]

(4)If, immediately before the expiration of the period for which a patient is liable to be detained by virtue of an application for admission for assessment, an application under this section, which is an application made on the ground specified in subsection (3)(c) or (d) above, is pending in respect of the patient, that period shall be extended—

(a)in any case, until the application under this section has been finally disposed of; and

(b)if an order is made in pursuance of the application under this section, for a further period of seven days;

and for the purposes of this subsection an application under this section shall be deemed to have been finally disposed of at the expiration of the time allowed for appealing from the decision of the court or, if notice of appeal has been given within that time, when the appeal has been heard or withdrawn, and “pending” shall be construed accordingly.

(5)An order made on the ground specified in subsection [F25(3)(a), (b) or (e)] above may specify a period for which it is to continue in force unless previously discharged under section 30 below.

(6)While an order made under this section is in force, the provisions of this Part of this Act (other than this section and section 30 below) and sections 66, 69, 132(4) and 133 below 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 section 30 below) 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; but this subsection shall not apply to section 66 below in the case mentioned in paragraph (h) of subsection (1) of that section.

Textual Amendments

F17Words in s. 29(1) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(2), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F24S. 29(3)(e) and preceding words inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(5)(b), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

F25Words in s. 29(5) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 23(6), 56, (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)

30 Discharge and variation of orders under s. 29.E+W

(1)An order made under section 29 above in respect of a patient may be discharged by the county court upon application made—

(a)in any case, by [F26the patient or] 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 (a) [F27, (b) or (e)] of section 29(3) above, or where the person who was the nearest relative of the patient when the order was made has ceased to be his nearest relative, on the application of the nearest relative of the patient.

[F28(1A)But, in the case of an order made on the ground specified in paragraph (e) of section 29(3) above, an application may not be made under subsection (1)(b) above by the person who was the nearest relative of the patient when the order was made except with leave of the county court.]

(2)An order made under section 29 above 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 [F29the patient or of] an [F30approved mental health professional] , by substituting [F31another person for the person having those functions].

[F32(2A)If the court decides to vary an order on an application under subsection (2) above, the following rules have effect for the purposes of substituting another person—

(a)if a person is nominated in the application to act as the patient's nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);

(b)otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient's nearest relative and 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 section 29 above dies—

(a)subsections (1) and (2) above shall apply as if for any reference to that person there were substituted a reference to any relative of the patient, and

(b)until the order is discharged or varied under those provisions the functions of the nearest relative under this Part of this Act and sections 66 and 69 below shall not be exercisable by any person.

(4)[F33An order made on the ground specified in paragraph (c) or (d) of section 29(3) above shall, unless previously discharged under subsection (1) above, cease to have effect as follows]—

[F34(a)if—

(i)on the date of the order the patient was liable to be detained or subject to guardianship by virtue of a relevant application, order or direction; or

(ii)he becomes so liable or subject within the period of three months beginning with that date; or

(iii)he was a community patient on the date of the order,

it shall cease to have effect when he is discharged under section 23 above or 72 below or the relevant application, order or direction otherwise ceases to have effect (except as a result of his being transferred in pursuance of regulations under section 19 above);

(b)otherwise, it shall cease to have effect at the end of the period of three months beginning with the date of the order.]

[F35(4A)In subsection (4) above, reference to a relevant application, order or direction is to any of the following—

(a)an application for admission for treatment;

(b)a guardianship application;

(c)an order or direction under Part 3 of this Act (other than under section 35, 36 or 38).]

[F36(4B)An order made on the ground specified in paragraph (a), (b) or (e) of section 29(3) above shall—

(a)if a period was specified under section 29(5) above, cease to have effect on expiry of that period, unless previously discharged under subsection (1) above;

(b)if no such period was specified, remain in force until it is discharged under subsection (1) above.]

(5)The discharge or variation under this section of an order made under section 29 above shall not affect the validity of anything previously done in pursuance of the order.

Textual Amendments

F30Words in s. 30(2) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 21, 56, Sch. 2 para. 7(d) (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.); S.I. 2008/2561, art. 2(b), (with art. 3, Sch.)

F33Words in s. 30(4) substituted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 24(6), 56 (with Sch. 10); S.I. 2008/1900, art. 2(f) (with art. 3, Sch.)