Abstract

The Autonomy of Choice and the Role of the Nearest Relative under the Mental Health Act 1983

Author(s): Emmanuel Ihuoma Nwatu*

The role of the ‘nearest relative’ as defined in section 26 of the Mental Health Act 1983 (MHA1983) has unrestricted implications in influencing the chances of a mentally challenged family member to receive treatment. The role was introduced by the 1959 Act but was devoid of governing principles or clearly defined purpose. However, it has become formally recognised as a patient safeguard to limit the extremes of professional discretion and protect patients from unjustified compulsory admission in the 1983 Act which has further been amended by the MHA 2007. The role of ‘nearest relative’ survived two earlier attempts to eradicate it in the draft Mental Health Bills of 2002 and 2004. However, since its introduction, the role has generated debates because of grave concerns about the relative’s powers to manipulate admissions and the vagaries of family relationships.

Studies have shown that relatives have always had a role to play, one way or another, in the hospitalisation of mental patients. The only exemption is where the patient has no relative(s), in such circumstance, the role may be played by a friend or carer. The view has been expressed that the idea of the ‘nearest relative’ in the Mental Health Act 1983 was intended as another safeguard to protect the rights of a service user who is being involuntarily detained and treated against their will. This means that the relative or carer will receive necessary information and be involved in decisions regarding the patient. The Nearest Relative is an essential but controversial role, with some supposed flaws in the way they are selected.

The principal focus on this study is to determine the degree to which patients can choose or an Approved Mental Health Professional (AMHP) will be able to identify persons who can take up the role to act as the ‘Nearest Relative’ (NR). This will be achieved by looking at the outmoded hierarchical list of relatives suitable to act as such under the MHA 1983 and the knotty issues surrounding wrong persons taking up on the role of a NR.

Furthermore, this work will provide a background insight into the role of the ‘nearest relative’ under the Mental Health Act and identify the issues/problems surrounding it. Attempt will be made to proffer recommendations for reform as well as the justifications for the recommendations