Next of kin and nearest relative: what is the difference?

The Mental Health Act confers various rights on a patient's “nearest relative” in connection with the patient’s detention, supervised community treatment (SCT) and guardianship. The terms “relative” and “nearest relative” are defined for the purposes of the Act in section 26.

Conversely, despite the widespread use of the phrase, “next of kin” is not defined in law. As a phrase, it is subject to widespread misconception about the legal standing that it creates or the powers that arise. However, the Mental Health Act confers no specific powers on a patient’s next of kin.

It is therefore important to identify a patient’s nearest relative and recognise the rights conferred on that person, and to remember that the nearest relative for the purposes of the Act may not be the same person as the patient’s next of kin.

Who is a patient's nearest relative?

Under section 26 of the Act, a patient’s “relative” is defined as any of the following persons:

• husband, wife or civil partner
• son or daughter
• father or mother
• brother or sister
• grandparent
• grandchild
• uncle or aunt
• nephew or niece

This includes relationships both of the “whole blood” and the “half-blood” (i.e. with, or through, half-siblings) and also includes relationships established through adoption, but not step-relationships. It does not include the relationship of a father and illegitimate child, unless the father has parental responsibility for the child within the meaning of section 3 of the Children Act 1989.

Under s.26(3), a patient’s “nearest relative” is defined as the person who comes first in the list of relatives described above. Men and women take equal priority, but where two or more people come in the same place in the list, the elder or eldest takes precedence.

There are several exceptions to this general rule, which are described in detail in paragraphs 33.16 – 33.17 of the Reference Guide to the Mental Health Act. In particular, no one under the age of 18 can be a patient’s nearest relative, unless they are the patient’s mother, father, husband, wife or civil partner (or treated as such).

The identity of the nearest relative may change over time, e.g. if the current nearest relative dies or if the patient enters into a marriage/civil partnership.

Restricted patients (including conditionally discharged patients) do not have a nearest relative for the purposes of the Act. Nor do patients remanded to hospital under section 35 or 36, nor patients subject to interim hospital orders under section 38.

As explained above, a patient’s next of kin is not defined in law. In practice, hospitals have generally recognised spouses and close blood relatives as next of kin, or alternatively, a patient may nominate a person to be his next of kin. However, there are no specific rules about who can and cannot be next of kin, and a patient may nominate whomever he chooses, e.g. his partner, a member of his family or a good friend. Therefore, a person’s next of kin may well differ from their nearest relative. In some circumstances (e.g. in the case of a restricted patient), a patient may have a next of kin but not a nearest relative.

What is the role of a nearest relative?

The role of the nearest relative in respect of detained patients was identified by Maurice Kay J in R (on the application of M) v Secretary of State for Health as follows:

“The nearest relative plays an important part in the scheme of the Act. He may make an application for admission for assessment (section 2), an emergency application for admission for assessment (section 4) and an application for admission for treatment (section 3). No application for admission or treatment under section 3 may be made by an AMHP without first consulting with the nearest relative unless the AMHP considers that such consultation is not reasonably practicable or would involve unreasonable delay (section 11(4)). The manager of a psychiatric institution in which a patient is detained has to inform the nearest relative in writing about, amongst other things, the right to apply to a [tribunal], the right to be discharged, the right to receive and send correspondence and the right to consent to or refuse treatment (section 132(4)).

A nearest relative may order the discharge of a patient who is detained under section 2 and section 3 (section 23)…although the right to order discharge under section 23 is limited…

Where a patient is to be discharged other than by the order of the nearest relative, the detaining authority is required to notify the nearest relative of the forthcoming discharge unless the patient requests that no such information is supplied (section 133(2)).

In addition…the nearest relative may apply to a tribunal for the discharge of the patient pursuant to section 66…”

A patient’s nearest relative, therefore, has various rights conferred on him by the Act and is entitled to be given information in respect of the patient in a variety of circumstances.

In contrast, there are no such powers conferred upon a patient’s next of kin by the Act, and neither does the Act entitle a patient’s next of kin to information about the patient. That is not to say that a patient cannot ask for information to be given to his next of kin (if the next of kin differs from the nearest relative), but the next of kin will not be entitled to it.

In conclusion, a patient’s nearest relative is specifically defined in the Mental Health Act and has important rights and powers conferred upon him. In contrast, a person who has been identified or nominated as the patient’s next of kin has no powers under the Act, unless he or she is also the patient’s nearest relative.

What Changes are Proposed by the Mental Health Bill 2024?

The Bill proposes to amend the role of the nearest relative and replace this with a new statutory role of “nominated person”. As set out above, previously the nearest relative had been a person from a hierarchical list of relatives but it was plain that in some circumstances, service users were unhappy with this, particularly where the relationship with the statutory nearest relative was difficult, or even the source of abuse. The proposed amendments in the Bill will allow a patient to select the nominated person to exercise all the statutory functions previously held by the nearest relative. It is part of a wider policy initiative to empower patients and reflect their view in support of the principle of choice and economy. 

The Bill anticipates that a nominated person will be selected by the patient: -

    In advance of the detention; or
    At the time of a Mental Health Act assessment; or
    Following detention.

The Bill sets out detailed provisions requiring an assessment of the patient’s capacity to appoint a nominated person and dealing with how the nominated person role will be decided for children.