- Except if there is a husband, wife or civil partner (in which case the husband etc. would be the nearest relative).
- This is subject to the disqualifications below.
- This is subject to the disqualifications below
Does the patient have a ‘relative’ (as defined)?
MHA 1983 s26 sets out a of people who are considered to be ‘relatives’ for the purposes of identifying a nearest relative:
(a) husband or wife or civil partner; (b) son or daughter; (c) father or mother; (d) brother or sister; (e) grandparent; (f) grandchild; (g) uncle or aunt; (h) nephew or niece.
The following points relate to determining whether someone is a ‘relative’:
- Any relationship of the half-blood is treated as a relationship of the whole blood (s26(2) – e.g. half-siblings are treated as if they were full siblings.
- One person is said to be of the whole blood to another when they are both descended from the same pair of ancestors, e.g. two brothers who have the same parents. Persons are said to be of the half blood to one another when they are descended from one common ancestor only e.g. two brothers who have the same father but different mothers. (Osborn’s Concise Law Dictionary 8ed)
- his mother (s26(2)(a)).
- his father only if he has parental responsibility within the meaning of s3 Children Act 1989 (s26(2)(b)).
- This person could only be NR if there is no marriage/civil partnership, or the husband etc is disqualified (see below).
- This person is added to the bottom of the hierarchy (below ‘nephew or niece’).
- But note the ‘ordinary residence’ priority rule below.
Which of these relatives is nearest relative?
- In general, for an adult patient, the nearest relative can be found in the category of relative appearing first in the list above (s26(1), s26(3)), for instance ‘husband or wife or civil partner’.
- Where more than one relative survives within a category above then (by s26(3):
- relatives of the whole blood are preferred to those of the same description of the half-blood;
- the elder/eldest is preferred; and
- the sex of the relative is irrelevant.
- This priority rule applies even to ‘five-year rule’ relatives.
- If more than one such caring/resident relative exists, the nearest relative is chosen according to the whole-blood/eldest priority rule above.
Who is disqualified from being a ‘relative’?
- A dead person (s26(3)).
- Where the patient is ordinarily resident in the UK, Channel Islands or Isle of Man, and the would-be nearest relative is not so resident, then that person is treated as if he were dead (s26(5)(a)).
- Where a would-be NR is the husband or wife or civil partner, but there has been a permanent separation (either by agreement or court order) or on-going desertion, that person is treated as if he were dead (s26(5)(b)).
- Any person under 18 years of age is treated as if he were dead (s26(5)(c)).
- Except for a husband, wife or civil partner, or father or mother of the patient.
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