The Nearest Relative Handbook

Second Edition

David Hewitt

• Publisher: Jessica Kingsley Publishers
• Year: 2009
• ISBN:
  9781846426902
• Edition: 2
• Topic: Psychology
• Subtopic: Mental Health in Psychology
• Index: Psychology

When a person is subject to the Mental Health Act, many of his or her principal rights are taken away. It is the function of the nearest relative to compensate for that loss.

This fully updated second edition explains how the nearest relative is identified, and how in some cases he or she might be displaced. It also contains a wealth of new case examples and illustrative scenarios, providing a succinct discussion of each significant case and incorporating all the very latest changes to the Mental Health Act.

The Nearest Relative Handbook will be an invaluable aid to those who find themselves in a professional relationship with a nearest relative, to those who are or wish to be a nearest relative and to anyone needing to make sense of the relevant statutory provisions.

CHAPTER 1

The Recent History of the Nearest Relative

Although most of them now seem well established, the provisions in the Mental Health Act 1983 concerning the nearest relative – and particularly those dealing with his or her selection – have become very controversial. This chapter asks why that is so. First, however, a brief historical diversion might be in order.

Early history

1.1 In seventeenth- and eighteenth-century England, it was to families that the role of caring for the insane was primarily entrusted. But that caring role became harder in the nineteenth century, with the onward march of industrialisation and the attendant increase in urban living. Soon, the most significant role played by many families was to admit their relatives to the large new asylums. Significantly, even early admission documents tended to give equal space for the comments of doctors and relatives.¹

1.2 The origins of the nearest relative (NR) might, perhaps, be found in the Act for Regulating Private Madhouses, which was introduced in 1774.² It required that private madhouses be licensed, and introduced a process of certification for all but pauper lunatics.³ Crucially, the Act also said that, alongside the name of the advising physician or apothecary, the admission certificate should bear the name of the person committing the patient to confinement. That person was often a relative.

1.3 The Madhouses Act of 1828 went further, in requiring, not only the provision of two medical certificates, but also that a relative of the patient positively authorise his or her confinement. That relative, or a proxy, would have to visit the patient at least once every six months.⁴

1.4 In 1845, the role of relatives was developed further, when the Lunacy Act of that year gave them the power to apply to an external regulator, the Lunacy Commission.⁵

1.5 The next significant step was the Lunacy Act 1890, which gave powers to the husband or wife of a confined patient, or to his or her ‘relative’. For the first time, the term ‘relative’ was defined. It would mean ‘a lineal ancestor, or a lineal descendant not more remote than great-grandfather or great-grandmother’.⁶ There was no hierarchy of such relatives, however, and no statutory way of distinguishing between them. Once recognised, a relative would have the power to petition the justices, either for a patient’s admission or for his or her discharge. For the first time, it would also be possible for a substitute to be appointed, who could petition on behalf of a spouse or relative who was incapable of doing so.

1.6 As far as discharge was concerned, the 1890 Act distinguished between a private patient and one maintained by organs of the state. The former could be discharged by the person who had petitioned for his or her detention, or, if that person was dead or otherwise incapable, by any spouse, or by any father or any mother, or, finally, by ‘any one of the nearest kin of the patient’.⁷ Discharge could, however, be barred by the relevant medical officer, who would have to certify that the patient was dangerous and unfit to be at large. In such circumstances, discharge would only be effective if it was ratified by two visitors of the institution in which the patient was confined or by members of the Board of Control when it visited the institution.⁸

1.7 The Lunacy Act gave no such powers to the relative of a pauper patient, who could only be discharged by the authority that was liable to maintain him or her or by any two members of the visiting committee of the relevant institution.⁹ It would, however, be open to a relative of the patient (amongst others) to make application to the committee in that regard, but he or she would have to give an undertaking that, if released, the patient would no longer be maintained at the public expense, and would be properly taken care of and prevented from doing injury to himself or herself or to others.¹⁰

1.8 These powers were supplemented by the Mental Treatment Act 1930, which gave a relative the power to object to a patient’s confinement (unless he or she did so unreasonably or was unavailable).¹¹

1.9 In the post-war period, the Percy Commission marked a watershed in the regulation of mental health care.¹² It accepted that relatives had a vital role to play, both in monitoring the need for a patient’s continued detention and in securing and providing aftercare. As a result, though the Commission recognised the possibility that relatives might abuse patients, it suggested such events would be rare.

1.10 The Percy Commission did not distinguish between different degrees of relationship. It did, however, recommend that where there was disagreement about care, it was the views of the relative nearest to the patient that should prevail. This was the first sign of a distinction that would eventually resolve itself into section 26 of the Mental Health Act 1983 (MHA 1983). Where, however, the disagreement was between relatives of equal proximity to the patient, the Percy Commission said only that hospitals would have to use their own discretion in deciding which of them to prefer.

1.11 When Parliament decided to give effect to the recommendations of the Percy Commission, it showed itself to be rather more concerned about the possibility of abuse.¹³ Indeed, Dr Edith Summerskill, who was at that time the shadow spokesman for health, voiced a concern that now seems prescient. Speaking in a debate on the Bill that would become the Mental Health Act 1959, she said:

There is another point I want to make about the nearest relative. It is easy to dismiss this, but it is quite conceivable that the nearest relative is not necessarily the person most concerned to promote the welfare of the patient. […] At the moment we are discussing imponderables, but I confess that I find it difficult to suggest an alternative. No doubt we are thinking of our relatives and that ‘but by the grace of God there goes…’ some of us. We should be quite content that our relatives should be there to look after our welfare, but can that be said about all people?¹⁴

1.12 When it finally emerged, the MHA 1959:

•introduced a hierarchical list of relatives (which is said to ow...

Table of contents

• Cover Page
• Title Page
• Copyright
• Dedication
• Acknowledgements
• Contents
• List of abbreviations used in this book
• Introduction
• 1. The Recent History of the Nearest Relative
• 2. The Nearest Relative of an Adult
• 3. The Nearest Relative of Some Minors
• 4. Ceasing to be the Nearest Relative
• 5. Admission and the Nearest Relative
• 6. Discharge and the Nearest Relative
• Appendix 1: Statutory extracts
• Appendix 2: Regulations
• Appendix 3: Specimen document
• Appendix 4: List of legal cases cited
• References
• Subject Index
• Author Index
• Back Cover