Nearest Relative vs Nominated Person
The Independent Mental Health Act Review published their final report in December 2018, the contents of which may be of interest to you if you are detained in hospital under the Mental Health Act or if you are a relative of a patient.
Currently, the Nearest Relative yields a great deal of power, such as the right to object to a detention, as well as the power to order discharge of a patient, and so it is important that the right person fulfils this role. Under new proposals the powers of the ‘nominated person ‘will remain largely the same as the powers of a Nearest Relative, it will simply allow a patient more freedom to decide who will act in this capacity.
It can be incredibly distressing for a patient to learn that they cannot simply appoint a person to act in this capacity and to find that, unless they are able to make an application to the County Court for them to appoint a Nearest Relative, then the Nearest Relative is determined for them by following a list set out in s.26 of the Mental Health Act. There has long been widespread support for the proposition that a patient should be able to choose their own ‘nominated person’. It is commonly argued that the s.26 list is an inflexible hierarchical structure, focussing only on ‘conventional’ relatives.
Additionally, the Review identified the need for an Interim Nominated Person, applicable for those who have not appointed anyone but do not currently have capacity to do so. This procedure would allow for the patient to choose their own nominated person once they have regained capacity.
Unfortunately, at the moment these are just recommendations, and it is not yet clear whether the Government will choose to implement them – even if they do, it is likely that implementation will take years.