The Nearest Relative and Nominated Person: A Tale of Parliamentary Shenanigans

Abstract

The nearest relative (NR) has proved to be a resilient feature of mental health legislation. The powers and the rules for the identification of the NR remain largely unchanged since the role was introduced in the Mental Health Act 1959, with the Mental Health Acts 1983 and 2007 only having made relatively minor modifications. The NR has even survived two attempts to abolish it, in the draft Mental Health Bills of 2002 and 2004.

Few would doubt that the NR provides an important legal safeguard for the rights of mental health patients. However, the rules for establishing the identity of the NR relative are, by common consent, deeply flawed. The identification rules are rooted in the 1950s and reflect many of the assumptions about the structure and role of the family that were prevalent in the immediate post-war period. As such, they fail to reflect the lives and circumstances of mental health patients in the twenty-first century.

This paper outlines, briefly, the role of the NR and the changes introduced by the Mental Health Act 2007, and the main criticisms of the rules for identifying the NR. Its main purpose, however, is to set out the reforms to those rules that were nearly achieved by the Mental Health Alliance during the passage of the Mental Health Bill 2006 and to document the ensuing Parliamentary debates. The paper concludes by considering the future of the NR.