Nominated Persons

The term "nearest relative" was introduced in the Mental Health Act 1959 and modified in the Mental Health Act 1983. It is defined in Section 26 which provides a list of people considered to be nearest relative, who are ranked in order of priority. This inflexibility has caused problems and been upheld, in different decisions, to be contrary to Article 8 of the Human Rights Act. The nearest relative may not necessarily be the person identified as next of kin. Nor is the nearest relative always the best person to take on these powers, either from a patientís point of view or from their ability to fulfill the role. The patient has no right to seek the displacement of an abusive or unsuitable nearest relative.

The current Act gives the nearest relative the following main rights and powers:

The draft Mental Health Bill 2004 replaces the nearest relative with a nominated person. It states that the patient must be given a reasonable opportunity to select a nominated person, and that if the patient is capable of making a selection and selects a person who is suitable and eligible, then that person should be appointed. The Government expects that in the majority of cases the nominated person will be of the patientís choice. Legally, though, it is the mental health professional and not the patient who will appoint the nominated person.

Persons under 16 cannot choose their own nominated person but must be consulted before any appointment is made and their wishes and feelings must be taken into account.

The nominated person has the right to:

This is a similar but diminished role to the nearest relative under the current Act.