The nearest relative role under the Mental Health Act

The nearest relative role under the Mental Health Act David Thompson highlights the importance of this statutory safeguard over time and explains how a sound knowledge of these legal rights can help support service users and carers Correspondence davidthompson7@talktalk.net David Thompson is a specialist nurse for adults at risk, Hounslow and Richmond Community Healthcare NHS Trust Date of submission April 4 2014 Date of acceptance July 4 2014 Peer review This article has been subject to double-blind review and has been checked using antiplagiarism software Author guidelines journals.rcni.com/r/mhp-authorguidelines Abstract The nearest relative role is a statutory safeguard for people who may be subject to the formal powers of the Mental Health Act 1983 in England and Wales. It survived the amendment in 2007, despite a wide consensus that the role should be replaced by a nominated person. This article reviews the nearest relative role and argues it is consistent with contemporary policy with regard to carers. It challenges practitioners to dispense with any lingering ambivalence about the role and to facilitate the nearest relatives legal rights to support people with mental health needs and their carers. Keywords Carers legislation, Mental Health Act, nearest relative, safeguarding service users OVER THE past two decades, government policy has increasingly recognised the role of carers, including those who care for people with mental health needs. The nearest relative role, which pre-dates this policy shift, is a safeguard for people who may be subject to the compulsory powers of the Mental Health Act 1983 (MHA) powers preferentially delegated to carers. Despite strong criticism of the role of nearest relative (Department of Health (DH) 1999), it was preserved when the MHA was amended in 2007. The failure to introduce new mental health legislation was a missed opportunity to give people with mental health needs a greater say over who should represent their interests, and to value the contribution of carers. This article charts these developments in England. It argues that, rather than being outdated, the nearest relative role offers a powerful representation for people with mental health needs, which is consistent with current policies on carers. The conclusion is that mental health professionals should review their attitudes towards the nearest relative safeguarding role and bolster support for it. This is to help ensure that people with mental health needs and their carers maximise the potential benefits from this safeguard. The nearest relative was first defined by the MHA 1959. This was a development of legislation dating from the 18th century, giving rights to family members of people who might be compulsorily detained (Hewitt 2008). The MHA definition sets out a hierarchical list of people who can be the nearest relative (Box 1, page 24). Primacy is given to anyone who lives with or cares for the service user, including before any admission to hospital. When the MHA was amended, the only changes to selection were to give equality to same-sex relationships and to recognise some fathers of illegitimate children. The MHA does not define cares for. The Court of Appeal examined its meaning when the selection of a nearest relative was contested (Re D (Mental Patient: Habeas Corpus) [2000]). It held that a common and everyday meaning applied and also that the care did not have to extend over a long period, but had to be more than minimal. In this case the daughter s weekly visits, which involved doing the laundry and assistance with finances, were judged adequate. Many nearest relatives will be carers. Some nearest relatives will not be carers, for example, estranged family members. Conversely, not all carers will be nearest relatives, for example, friends who do not live with the service user, or have lived with them for less than five years. MENTAL HEALTH PRACTICE May 2015 Volume 18 Number 8 23

Box 1 Who can be selected as the nearest relative? The nearest relative is the highest person on this list: 1. Anyone below who ordinarily lives with, or cares for the service user. 2. Husband, wife or civil partner. 3. A current partner with whom the service user has lived as such for at least six months. 4. Son or daughter. 5. Father or mother. 6. Brother or sister. 7. Grandparent. 8. Grandchild. 9. Uncle or aunt. 10. Nephew or niece. 11. Anyone who has lived with the service user for at least five years prior to possible detention. This is subject to the following: a) Where there is more than one person at the highest level, the older person will be the nearest relative. b) Husbands, wives and civil partners are disregarded if they are permanently separated. c) Nearest relatives need to be 18 or over unless they are the service user s husband, wife or civil partner. d) Preference is given to full blood over half-blood relationships when there is more than one person at the same level. e) Nearest relatives need to be ordinarily resident in the UK, Channel Islands or Isle of Man if the service user is ordinarily resident in any of these. Carers needs Carers of people with mental health needs have concerns similar to those of other carers (Rethink 2003, Lindon 2007, Carers UK 2013). These include: Getting appropriate support for the service user. Having good information. Their role not being valued by professionals. Confidentiality being unfairly used to exclude them. Finding it difficult to get or retain paid work. Financial and social disadvantages. Difficulties getting a break from caring. Caring negatively affecting their physical and mental health. Carers and their needs were first officially addressed in the Carers (Recognition and Services) Act 1995. Subsequently carers involvement in the services provided to the person they care for, together with attention to their own needs, has increasingly been represented in legislation and policy. Table 1 identifies current government initiatives that are particularly relevant to carers of people with mental health needs. There is evidence of carers benefiting from this policy direction (Rethink 2003, Carers UK 2013). This progress has been widely welcomed, but some commentators have suggested that the government s agenda of supporting carers may partly be to mitigate the immense potential burden on the public purse in an ageing society (Crinson 2007). Nearest relative s rights The rights of the nearest relative are summarised in Table 2 (page 26) (see Appendix for full details, pages 29-30). The table shows that many of the nearest relative s rights reflect recent policy developments regarding carers, for example, their rights to request that the service user be assessed, to information and to be consulted. The main changes when the MHA was amended in 2007 were additional rights in relation to the newly introduced community treatment orders (CTOs) and independent mental health advocacy. Many of the nearest relatives rights are qualified. For example, they may not hear about any application for detention if it is not practicable for an approved mental health professional (AMHP) to contact them. Similarly, information about detention and discharge may be kept from nearest relatives if the service user requests this. When nearest relatives seek to exercise these rights, they may be advocating for the interests of the service user but they may also be concerned with their own interests. For example, as a carer they might seek detention partly because they are struggling to cope, or they may require seven days notice of discharge so that they can prepare for the person coming home. Criticism of the law The limited changes to the identification and rights of the nearest relative, made when the MHA was amended in 2007, mask strong lobbying for fundamental reform of the role. There had been strong criticism because of the restrictions on removing a nearest relative, and because service users had no control over who was selected (DH 1999). In the original 1959 MHA, nearest relatives could only be displaced by making an application to court if they were: Incapable of acting as such because of mental disorder or other illness. Unreasonably objecting to an admission for treatment. Ordering, or were likely to order, discharge without due regard to the interests of the service user or the public (paragraph 2.3). Physical, emotional or sexual abuse by the nearest relative were not grounds for displacement (Mental Health Act Commission 1999). Service users were 24 May 2015 Volume 18 Number 8 MENTAL HEALTH PRACTICE

Table 1 Government carers initiatives Policy Mental Health Act 1983; Code of Practice (DH 2015) Discharge From Hospital: Pathway, Process and Practice (Department of Health (DH) 2003) Mental Capacity Act 2005 The Equality Act 2010 No Health Without Mental Health: A Cross-Government Mental Health Outcomes Strategy For People Of All Ages (DH 2011) Patient Experience in Adult NHS Services: Improving the Experience of Care for People Using Adult NHS Services (National Institute of Health and Care Excellence 2012) The Care Act 2014 NHS Outcomes Framework 2014/15 (DH 2013) Requirements/aims Encourages the involvement of carers and their views to be taken seriously Carers to be involved in discharge planning Carers must be consulted when best interests decisions are made Carers cannot be discriminated against. This includes in employment and when accessing goods and services Requires, wherever possible, services to involve carers and provide them with information about the service user s care and treatment Ask service users how they would like their carer to be involved. Even if they cannot indicate their agreement to share information, carers should still be involved and appropriately informed Local authorities must assess and meet the needs of carers if they meet a minimum eligibility threshold Includes a specific indicator on the health-related quality of life for carers also unable to make any applications to court about who acted as their nearest relative. These restrictions were held to be incompatible with article 8 (respect for private and family life) of the European Convention on Human Rights (FC v United Kingdom [1999], and JT v United Kingdom [2000]). In response, the UK Government promised to change the law. This was not achieved until the act was amended in 2007. Service users now have the right to apply for the displacement and the appointment of someone of their choice. Added to the grounds for displacement was the nearest relative being not suitable to act as such (MHA paragraph 29.3.e). Proposal to end the nearest relative role In 1998 the Richardson Committee was set up by the Labour government to advise on the degree to which the MHA needed updating. They reported the following year with recommendations for a new act that would bring radical changes (DH 1999). These included restricting the use of compulsory powers over individuals who lacked capacity to make decisions about their treatment, unless there were public safety concerns, and setting out entitlements for service users. Mindful of the criticisms identified above, the committee also recommended the end of the nearest relative role. They proposed maintaining the advocacy and carer functions linked with the nearest relative role by: Introducing a nominated person chosen by the service user, with some of the nearest relative s rights. Introducing a statutory right to independent advocacy. Giving carers the right to request an assessment of the service user s mental health needs. Requiring consultation with carers if a service user may be detained in or discharged from hospital, subject to protocols on sharing information. Among these proposals can be discerned a commitment to carers, in keeping with the Carers (Recognition and Services) Act 1995 of that time. The committee s report was broadly welcomed (Grounds 2001). Subsequently the government published a green paper (1999), a white paper (2000) and draft Mental Health Bills (2002 and 2004). These reflected the recommendations on nominated persons, advocacy and carers. However, the government was increasingly criticised for moving away from some of the fundamental principles set out by the committee (Grounds 2001, Moncrieff MENTAL HEALTH PRACTICE May 2015 Volume 18 Number 8 25

2003, White 2006). Writing in the British Journal of Psychiatry, Moncrieff accused the government of being motivated to increase social control through the agency of psychiatry (Moncrieff 2003). Almost every interest group, including service users and professionals, united in rejecting the proposed legislation (Mental Health Alliance 2006, Smith 2006). Parliament was also concerned about the cost of some of the measures (Joint Committee on the Draft Mental Health Bill 2005). In response, the government abandoned its plans for a new act and instead amended the MHA via the Mental Health Bill 2006. This was still unwelcome to many, with particular concerns about the introduction of CTOs (Mental Health Alliance 2007). Of the committee s above proposals, only a right to independent advocacy found its way into the legislation. A failure to reflect the importance of carers is evident in the repeal of the only requirement to specifically consult carers in the MHA. This was in relation to aftercare under supervision (section 25B) introduced in 1996. Rapaport and Manthorpe s (2008) optimism about the MHA increasingly recognising carers was premature. Was the loss of a nominated person and specific rights for carers bad for service users and their carers? The strongest argument that this is so is where a carer is not the nearest relative, as they then have no rights in the MHA. To acquire any, they would need the consent of the court or of any nearest relative to transfer the rights. However, the combined proposed powers of carers and independent advocates would still have been less than those held by nearest relatives (Rapaport and Manthorpe 2008). There are also lessons from the experience in Scotland, where in 2003 a named person replaced the nearest relative (Berzins and Atkinson 2009). Among 20 service users who had been previously given information about the named person, only one had completed the required identification process. This backs concerns about the availability of a nominated person, particularly when a service user is being assessed for detention for the first time (Rapaport and Manthorpe 2008). Table 2 Nearest relative rights Nearest relative rights Does not apply if: Applications To apply for the service user to be detained in hospital Information Discharge To be informed about an application under section 2 To be consulted about any application under section 3 or 7 (guardianship) and the right to object to these To get a copy of any written information given to the service about the effect of the compulsory powers and their rights To have a doctor of their choice examine the service user To be told about any tribunals and to attend or make a written submission To be advised with at least seven days notice of the discharge of the service user To order the service user to be discharged by giving 72 hours written notice to the hospital managers To apply to the mental health tribunal for discharge It is not practicable to do so It is not practicable to contact them The service user objects The service user is detained under the criminal sections (part 3) of the MHA The service user has capacity to make an informed objection It is not practicable or the service user objects The responsible clinician blocks the order To end Section 7 guardianship The guardianship order was made under section 37 26 May 2015 Volume 18 Number 8 MENTAL HEALTH PRACTICE

Box 2 The Triangle of Care: key standards for mental health services 1. Carers and the essential role they play are identified at first contact or as soon as possible thereafter. 2. Staff are carer aware and trained in carer-engagement strategies. 3. Policy and practice protocols about confidentiality and sharing information are in place. 4. Defined post(s) responsible for carers are in place. 5. A carer introduction to the service and staff is available, with a relevant range of information across the care pathway. 6. A range of carer-support services is available. (Carers Trust 2013) Attitudes to the role With no plans for new mental health legislation, the nearest relative role will continue to offer representation for services users and rights for carers. It is therefore appropriate to consider the challenges to its effectiveness. A starting point is to recognise that many mental health professionals will not be convinced about the value of the role due to negative assumptions about family involvement in the lives of service users (Riebschleger et al 2008). This may reflect beliefs about mental illness being a product of dysfunctional relationships (Rethink 2003). The attention given to the cases where, before the MHA s amendment, abusive nearest relatives could not be displaced, will not have helped; nor will viewing the nearest relative s survival as a casualty of the government s failure to bring in new legislation. In the introduction to Hewitt s handbook (2008) on the nearest relative, he writes: We, in truth don t know what the role is for. A contemporary perspective on carers would challenge such negative thinking. Instead, the nearest relative role should be reframed as being consistent with carers policy, as it gives carers who are nearest relatives powerful rights to meet their own needs and those of the service user. Hewitt, in his confusion, fails to appreciate that policy should not set these two aspects up as competing needs (Carers Trust 2013). Studies to demonstrate the value of the nearest relative role would help, but, despite its long history, there has been little research in this area (Rapaport 2002). Ambivalence about the role, and expecting reform to get rid of it, may explain why researchers have avoided it. Small studies have shown that nearest relatives often do not know their rights and rarely exercise them (Marriott et al 2001, Rapaport 2002). Berzins and Atkinson (2009) found that service users were more interested in replacing their nearest relative with a named person, to reduce the burden of care on their relative, rather than to prevent unwanted involvement. The most validating research into the role was a retrospective analysis of 84 cases where the nearest relative had ordered discharge (Shaw et al 2003). This did not lead to negative outcomes for the service users. Pessimistic attitudes about the role may influence professional decisions not to consult with, or provide information to nearest relatives. It may be considered impractical if it is difficult to contact the relative, but also because of a services user s objection, potential reaction or concern regarding confidentiality (R (E) v Bristol City Council [2005]). Practitioners need to tread carefully here: last year a judgement identified a service user having been unlawfully detained because an AMHP had not consulted with their nearest relative and so denied them one of their rights under the MHA (TW v Enfield Borough Council [2014]). Here the service user had made it clear they did not want their nearest relative to be involved. The new MHA Code of Practice helpfully advises that service users should be encouraged to agree to the involvement of their carers many of whom will be nearest relatives (DH 2015). The Tribunal Rules 2008 similarly say that only if a service user has capacity to object can their nearest relative be excluded from tribunals (Ministry of Justice 2008). The government and carers organisations can also be accused of overlooking the nearest relative role. For example, the role is not mentioned in recent carers and mental health policy (DH 2011, 2014a, 2014b). Similarly the Triangle of Care, which is a government-supported guide for involving carers in acute mental health services, fails to mention the role (Carers Trust 2013). Box 2 shows the six main elements of good practice in the Triangle of Care. Possibly the greatest weakness of the nearest relative safeguard is that many service users do not have the opportunity to benefit from it. Research in New Zealand, which has similar expectations about the involvement of family members in compulsory detention, found there was no consultation in one third of 283 assessments (Spencer and Skipworth 2007). The reasons were that contact was impractical (42.1%), contrary to the legislation (18.2%), against the service users best interests (6.5%) or that there was no family (33.2%). There are many service users in England without a nearest relative (Rapaport MENTAL HEALTH PRACTICE May 2015 Volume 18 Number 8 27

2005) and, although the Code of Practice expects AMHPs to consider in such situations applying to the courts for a nearest relative to be appointed, as well as possible philosophical reluctance, there are also financial obstacles to doing this. Conclusion The author has argued for the nearest relative s role to be welcomed by mental health professionals in the interests of service users and their carers. The nearest relative also needs to be recognised in carers initiatives as a carer. However, service users and nearest relatives are at a disadvantage due to their limited knowledge about the role despite the requirements in the MHA to provide information. A simple measure could be to substitute carer with carer and nearest relative in mental health and carers practice documents. For example, doing so in the Triangle of Care (Box 2) would provide an excellent set of recommendations for the future of the nearest relative role. Implications for practice The nearest relative role is a safeguard for people who may be subject to the compulsory powers of the Mental Health Act (MHA) and their carers. The nearest relative may or may not be a carer and vice versa. Mental health professionals should review their attitudes to the role and provide information to nearest relatives about their rights. A service user s rights under the MHA may be denied if their nearest relative is not involved, including when a service user objects to this. Service users should be given information about how to change their nearest relative Mental health professionals should consider applying for a nearest relative to be appointed if there are concerns about a person who has this role, or where there is no-one to take this role. Online archive For related information, visit our online archive and search using the keywords Conflict of interest None declared References Berzins K, Atkinson J (2009) Service users and carers views of the named person provisions under the Mental Health (Care and Treatment) (Scotland) Act 2003. Journal of Mental Health. 18, 3, 207-215. Carers Trust (2013) The Triangle of Care Carers Included. A Guide to Best Practice in Mental Health Care in England. Second edition. Carers Trust, London. Carers UK (2013) The State of Caring. www.carersuk.org/professionals/resources/ research-library/item/3090-the-state-ofcaring-2013. Crinson I (2007) The Role of Informal Carers in Community Care. www.healthknowledge.org. uk/public-health-textbook/medical-sociologypolicy-economics/4b-health-care/section9 Department of Health (1999) The Expert Committee Report: Review of the Mental Health Act 1983. DH, London. Department of Health (2003) Discharge From Hospital: Pathway, Process and Practice. DH, London. Department of Health (2011) No Health Without Mental Health: A Cross-Government Mental Health Outcomes Strategy for People of All Ages. DH, London. Department of Health (2013) NHS Outcomes Framework 2014 to 2015. DH, London. Department of Health (2014a) Closing the Gap, Priorities for Essential Change in Mental Health. DH, London. Department of Health (2014b) Carers Strategy: Second National Action Plan 2014-2016. DH, London. Department of Health (2015) Code of Practice: Mental Health Act 1983. DH, London. FC v United Kingdom [1999] MHLR 174 Grounds A (2001) Reforming the Mental Health Act. British Journal of Psychiatry. 179, 387-389. Hewitt D (2008) The Nearest Relative Handbook. Second edition. Jessica Kingsley, London. JT v United Kingdom [2000] 1 FLR 909 Joint Committee on the Draft Mental Health Bill (2005) First Report. www.publications. parliament.uk/pa/jt/jtment.htm (Last accessed: March 17 2015.) Lindon D (2007) Five Key Facts About Mental Health Carers. tinyurl.com/l35pbwl Marriott S, Audini B, Lelliott P et al (2001) Research into the Mental Health Act: A qualitative study of the views of those using or affected by it. Journal of Mental Health. 10, 1, 33-39. Mental Health Act Commission (1999) Eighth Biennial Report. Stationery Office, London. Mental Health Alliance (2006) Mental Health Bill Still Not Fit for the Twenty-first Century. tinyurl.com/lhu7rc4 (Last accessed: March 17 2015.) Mental Health Alliance (2007) Mental Health Alliance Gives Final Verdict on 2007 Mental Health Act. tinyurl.com/m6cmro5 Ministry of Justice (2008) The Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 S.I. 2008 No. 2699 (L.16). MoJ, London. Moncrieff J (2003) The politics of a new Mental Health Act. British Journal of Psychiatry. 183, 8-9. National Institute of Health and Care Excellence (2012) Patient Experience in Adult NHS Services: Improving the Experience of Care for People Using Adult NHS Services. Clinical Guideline 138. NICE, London. R (E) v Bristol City Council [2005] EWHC 74 (Admin) Rapaport J (2002) A Relative Affair: The Nearest Relative Under the Mental Health Act 1983. PhD Thesis. Anglia Polytechnic University, Cambridge UK. Rapaport J (2005) The informal caring experience: Issues and dilemmas. In Ramon S, Williams J (Eds). Mental Health at the Crossroads: The Promise of the Psychosocial Approach. Ashgate, Aldershot UK. Rapaport J, Manthorpe J (2008) Family matters: developments concerning the role of the nearest relative and social worker under mental health law in England and Wales. British Journal of Social Work. 38, 6, 1115-1131. Re D (Mental Patient: Habeas Corpus) [2000] 2 FLR 848. Rethink (2003) Under Pressure, the Impact of Caring on People Supporting Family Members or Friends With Mental Health Problems. Rethink, London. Riebschleger J, Scheid J, Luz C et al (2008) How are the experiences and needs of families of individuals with mental illness reflected in medical education guidelines? Academic Psychiatry. 32, 2, 119-126. Shaw P, Hotopf M, Davies A (2003) In relative danger? The outcome of patients discharged by their nearest relative from Sections 2 and 3 of the Mental Health Act. Psychiatric Bulletin. 27, 2, 50-54. Smith L (2006) Government scraps mental health bill. Guardian. tinyurl.com/k57qmrb Spencer G, Skipworth J (2007) Forcing family involvement in patient care: legislative and clinical issues. Australasian Psychiatry. 15, 5, 396-401. TW v Enfield Borough Council [2014] EWCA Civ 362. White C (2006) Changes within the latest draft of the Mental Health Bill. Nursing Times. 103, 1, 23. 28 May 2015 Volume 18 Number 8 MENTAL HEALTH PRACTICE

Appendix Nearest relative rights and responsibilities in law Mental Health Act 1983 (as amended by the Mental Health Act 2007) Subsection 11(1) Subsection 11(1) Subsection 11(3) To make an application for detention in hospital for assessment or treatment. To make an application for guardianship. The approved mental health professional must take such steps as are practicable to inform the nearest relative about an application for the person to be detained for assessment (section 2) and about their right to a make an order for discharge to the hospital manager (section 23(2)(a)). Paragraph 11(3)(a) To prevent an approved mental health professional making an application for treatment (section 3). If the approved mental health professional thinks the nearest relative is being unreasonable they can apply to the county court to have the nearest relative changed. Paragraph 11(3)(b) Subsection 13(4) Paragraph 23(2)(a) Paragraph 23(2)(b) Subsection 24(1) Section 30 Paragraph 66(1)(g) Paragraph 66(1)(h) Section 69 Paragraph 130B(5)(a) To be consulted about an application for treatment (section 3) or guardianship unless it appears to the approved mental health professional that in the circumstances such consultation is not reasonably practicable or would involve unreasonable delay. Can require the local authority to arrange for an approved mental health professional to assess for detention in hospital or guardianship. If the approved mental health professional does not think that the person needs to be detained or put under guardianship the nearest relative must be advised of the reasons in writing. To discharge the person from detention in hospital or a community treatment order (CTO) by writing to the hospital managers giving them at least 72 hours notice. The responsible clinician can block this if they believe the person or others would be at risk (section 25(1)). If this happens the nearest relative must be told about this (section 25(2)) and they are unable to make another application for discharge for six months (section 25(1)(b)). To discharge the person from guardianship. To have a medical practitioner of their choice examine the person who is detained, under guardianship or a CTO. The medical practitioner has the right to inspect any records relating to the detention or treatment of the person in any hospital or to any aftercare services provided for the service user under section 117 (section 24(2)). If made the nearest relative by a court order, to apply to the court to end that order (this right also applies to any nearest relative displaced by the order so they can possibly resume the role). To apply to the mental health tribunal (MHT) to discharge the service user from section 3 or a community treatment if their notice of discharge under section 23(2)(a) was blocked by the responsible clinician. The application must be made within 28 days of being notified that the person will not be discharged (section 66(2)(d)). If the nearest relative was displaced by a court order because the court decided they were unreasonably blocking detention under section 3 (paragraph 11(3)(a)), or had or were liable to use their powers of discharge (paragraph 23(2)(a)) without due regard for the welfare of the person or the public, they are still able to apply to the MHT for discharge from detention. They can make an application once in every 12-month period from the date they were displaced (paragraph 66(2)(g)). To apply to the MHT to discharge the person from part 2: section 2 or 3, guardianship or a CTO, and unrestricted part 3 orders. To request an independent mental health advocate to see a qualifying person. This covers all service users who are detained under the Mental Health Act (MHA) with the exception of sections 4, 5(2), 5(4), 135, 136. It also includes service users subject to guardianship or CTOs and informal patients when treatments under section 37 are being considered. Reasonable requests should be met. MENTAL HEALTH PRACTICE May 2015 Volume 18 Number 8 29

Appendix Nearest relative rights and responsibilities in law Subsection 130D(5) Subsection 132(4) To be provided with the written information about the Independent Mental Health Advocacy Service provided to the service user, unless their relative requests otherwise. This has to be provided within a reasonable time after their relative receives this information (130D(6)). Service users detained in hospital have to be told under which provisions of this MHA they are being detained, the effect of these and their related rights and safeguards (subsections 132(1) and (2)). This includes how they can be discharged, the nearest relative role, consent to treatment, the code of practice, the role of Care Quality Commission and the potential for their post to be withheld. This information has to be given orally and in writing. Any written information given to the service user in respect of the above must also be given to their nearest relative within a reasonable time unless the service user requests otherwise. Subsection 132A(3) Section 133 Service users under CTOs have to be told how they are affected by the MHA and their rights to apply to the MHT. This information has to be provided both orally and in writing (subsections 132A(1) and (2)). The information provided in writing must also be given to the nearest relative unless the service user requests otherwise. Where practicable to be told if the person is to be discharged from detention in hospital or a CTO with at least seven days notice. This information does not have to be provided if the person requests that their nearest relative is not advised (section 133(2). The nearest relative can ask not to be advised (section 133(2)). The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 Regulation 24 Paragraph 26(1) To authorise someone else to act as nearest relative. This needs to be done in writing. All responsibilities can be transferred with the exception of applications to the MHT under section 69 or the MHA. The nearest relative must tell the service user if they have assigned their rights to someone else or taken them back. This information must also to be provided to the hospital manager if in hospital or under a CTO. They must similarly advise the local authority or guardian if under guardianship. This paragraph lists information which needs to be given to the nearest relative in writing as soon as practicable unless the service user objects to this: A hospital transfer including transfer or responsibility for a CTO. Transfer from hospital to guardianship. Change of guardian. Renewing a section 3 treatment order. Renewing guardianship. Renewing a CTO. Paragraphs 26(1)&(4) Where a service user is under guardianship, the nearest relative must be given information about their right to order discharge, the service user s right to apply to the tribunal, and their right to apply to the MHT if it is a guardianship order under part 3 of the MHA. The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 Paragraph 33(c) Rule 36 Online archive To be notified of tribunal hearings unless the service user has capacity and requests otherwise. For related information, visit If notified of a tribunal hearing (paragraph 33(c)) the nearest relative can attend the tribunal our online or archive provide and search a written submission. using the keywords Conflict of interest None declared Acknowledgement The author would like to thank xxxxxxxx 30 May 2015 Volume 18 Number 8 MENTAL HEALTH PRACTICE