The Nearest Relative Handbook
| Pages | 55-56 |
| Date | 01 September 2008 |
| Published date | 01 September 2008 |
| DOI | https://doi.org/10.1108/17556228200800022 |
| Author | David Hewitt |
| Subject Matter | Health & social care |
55
The Journal of Mental Health Training, Education and Practice Volume 3 Issue 3 September 2008 © Pavilion Journals (Brighton) Ltd
Nearest relatives have several crucial roles under the
Mental Health Act (1983). They can insist on an
assessment for a possible compulsory admission, they
have powers of discharge from detention or guardianship,
they have a right to information and, though it is rarely
used, they also have the power to apply for detention or
guardianship. David Hewitt has produced a book that
explores these functions in some depth.
The book starts with a brief history of the nearest
relative and mental health law. One minor criticism of
this part of the book is that there is probably too much
material on the proposals that were discussed during the
recent draft stages of mental health law reform. Virtually
none of these proposals reached the statute book and they
will be of only limited interest to most readers. On the
other hand, the material on R (E) v Bristol City Council
and other recent caselaw is well written and helpful.
The second chapter deals with the intricacies of
identifying the nearest relative of a patient. This is a
surprisingly difficult task as it is governed by some complex
rules. The process is described clearly but unfortunately
there is no discussion or view expressed on what should
happen if a hospital considers that the approved social
worker (ASW) has identified the wrong person as a nearest
relative. This can cause serious problems in practice and
some guidance would have been very welcome.
The third chapter explains how to identify the nearest
relative of a child (in this context any one under the age of
18). Chapter 4 then defines the circumstances when a person
will stop being the nearest relative. This chapter covers the
use of Regulation 14 to transfer authority as well as the
county court’s role in displacement and/or appointment of
nearest relatives. The section on court procedure will be of
particular use to practitioners such as ASWs.
Chapter 5 gives details of the nearest relative’s powers
when a patient is admitted to hospital. It also covers the
assessment process itself. The chapter also includes a
discussion of the Code of Practice recommendation that
the applicant should usually be the ASW rather than the
nearest relative. Despite the small number of applications
made by nearest relatives each year (there are so few that
the Department of Health has stopped publishing the
details in England) it is noteworthy that the Mental Health
Act (2007) keeps the nearest relative as potential applicant.
This is probably to cover the possibility that there might be
insufficient approved mental health practitioners (AMHPs)
to cope with the number of assessments. There is some
helpful material on section 13(4), which currently provides
the nearest relative with a right to an ASW assessment.
This will extend to AMHPs from October 2008.
The nearest relative’s powers to discharge a patient is
outlined. There is also a discussion of their rights to
information but this passage is not as detailed as other
parts of the book, which is unfortunate as this is an
important area and would have been of particular interest
to any nearest relatives reading the book.
There is a chapter devoted to supervised aftercare and
it is unfortunate that this will become redundant when
supervised aftercare is replaced by the Community
Treatment Order (CTO) in October 2008. There are
significant differences in the role of the nearest relative in
relation to the CTO, so this chapter will need to be read in
the context of the legislative change.
There is also a chapter on the Mental Capacity Act
(2005) and, while there are clearly overlaps between the
two statutes, the focus of this chapter seems a little strange.
It compares the role of the independent mental capacity
advocate (IMCA) with that of the nearest relative. These
are very different functions and there might have been
more mileage in focusing on situations such as where
someone has made a lasting power of attorney, or where a
deputy is appointed, and where someone else is nearest
relative. Potential clashes where the attorney objects to
admission to psychiatric hospital but the nearest relative is
in favour, this will need some resolution.
Finally there is an appendix of statutory extracts, which is
very helpful despite there being some significant omissions.
In conclusion, this is a well written and helpful book,
which will hopefully be revised in the light of the
legislative changes and become an important resource for
those working to the reformed Mental Health Act.
Reviewed by Robert Brown
Head of the Approved Social Work Training Programme
in South West England, and a Mental Health Act
Commissioner.
Book review
The Nearest Relative Handbook
David Hewitt
Jessica Kingsley Publishers (2007)
Paperback
Price: £17.99
ISBN: 978 184310 522 0
To continue reading
Request your trial