Unsure of identification of nearest relative (five-year residence, step parent)

Law and practice Mental Health Act
1

Hi all,

Having some issues identifying nearest relative. Reading older posts I believe our initial take is correct, but was hoping to clarify. Pt only has a step mother and a long-term friend/partner who they have been living with for 7+ years.

My understanding is s26(7) of MHA makes this person a relative, but of ‘lowest’ priority. However, s26(4) says any ordinarily resident relative is the ‘nearest relative’. Does this only apply to the s26(1) list, or does it also include the friend by way of (7)? Both happy to be NR in this instance but want to make sure for right procedure and no delay. If any firsthand experience of this situation that would be appreciated. Thanks!

2

The issue doesn’t arise as a step-parent isn’t classed as a relative for the purposes of MHA s26, so unless there is another relative living in the UK, the friend/partner is the only person who can be treated as a relative for this purpose.

3

Thanks for this. And just to clarify, if there was another relative on the list in the UK - does s26(4) still ‘trump’ the others, and the live-in friend is NR?

4

Jones’ take on it is that once the ‘5-year’ person has been added the bottom of the list, then the ‘residing with or caring for’ element (s26(4)) comes into play.
So the ‘5-year’ person will only be superseded if another relative on the s26 list is residing with or caring for the patient, and therefore will have priority.
Not to forget that ‘residing with’ and ‘caring for’ have equal status, and anyone who satisfies either (or both) of those criteria will have equal consideration, and therefore their position on the s26(1) ladder will be determinative.

5

Thanks again Steve really appreciate this. Would you perhaps have a specific quote or source you could direct me to for Jones confirming this? Thanks so much again.

6

It’s all covered in Jones’ commentary on s26. I only have access to the online version of the latest edition of the Mental Health Act manual, so I don’t have page numbers.
The discussion about whether the ‘5-year’ person takes precedence over relatives who do not reside with or care for the patient is covered at 1-445 (including the view of a judge in the county court who took a different view, which Jones considers to be wrong in law)
The point about ‘residing with’ or ‘caring for’ is covered at 1-442

7

Thanks for this Steve - very helpful. My impression from some looking into this further is there is no clear, established rule on this. I found the quote from Jones, where he himself acknowledges the differing views taken by other academics and the courts. I was also advised of the below from an NHS trust. I have included both quotes if this is a help to any other readers who may find themselves in a similar position.

Relevant excerpt from Jones’ Mental Health Act Manual:

" This subsection . . . provides that a person who has been living with the patient for five years or more shall be treated as if he or she were a relative who came last on the hierarchy of relatives set out in subs.(1).

By virtue of subs.(4), with the exception of someone who comes within the scope of para.(b), that person, as a relative who “ordinarily resides” with the patient, becomes the patient’s nearest relative unless a relative who came higher in the hierarchy is either living with or caring for the patient. The author has been informed that this interpretation, which is also adopted by Lady Hale (Brenda Hale, Mental Health Law, 6th edn (2017), p.96v), was not followed by a judge in the course of displacement proceedings under s.29 in the county court.

The judge apparently ruled that where there is a family member who features on the subs.(1) list, that person should always be preferred to a care home resident regardless of the fact that the patient may have lived in that care home with that resident for five years or more. It is submitted that the judge’s interpretation, which would result in the “five year person” hardly ever becoming the patient’s nearest relative, cannot be right as it would make para.(b), which prevents the “five year person” taking precedence over a married patient or a patient in a civil partnership in certain circumstances, redundant. Subsection (7) provides that the “five year person” is to be treated as a relative “for the purposes of this Part of this Act”. Subsection (4) relates to a patient who either lives with or is cared for “by one or more of his relatives” which, by virtue of subs.(7), includes a “five year person”. There is nothing in this Act which suggests that the normal rules of statutory interpretation should be disregarded in the manner adopted by the judge.

There is no requirement for the patient and the person with whom he has resided for five years or more to regard each other as being married or in a civil partnership, or to be in a relationship, or even to be friends. “"

Quote from NHS contact:

“To clarify and, hopefully, put simply - if a patient is just “flat/house sharing” , they are NOT regarded as the Nearest Relative- even if they have lived together for 5 years - if there is a family member within the hierarchial list who will be prioritised for the role providing they are a UK resident. The 5 year rule only applies if there is no one on the hierarchial list and they are not in a relationship with the patient - there is then the possibility that they can be the Nearest Relative”

It seems there are a number of differing views here - don’t think a binding decision has ever been declared on this in a case as far as I know.