The Legal Rights of Carers and the Nearest Relative

Legislation for carers

The current legal rights of carers have been extended through three pieces of legislation, all of which are applicable to Wales. They are:

  • The Carers (Recognition and Services Act) 1995 formally recognised the role and needs of carers and, for the first time, gave them a right to an assessment of their own needs.
  • The Carers and Disabled Children Act 2000 extended this right to assessment and also gave the right to teenagers aged 16 and 17.
  • The Carers (Equal Opportunities) Act 2004 is the most recent piece of legislation for carers and it significantly extended their rights.

Further Information:

Through the 1995 Act, Local Authorities have a duty to:

• Assess the needs of carers themselves when an assessment or re-assessment of the person for whom they care is taking place, provided that the carer provides a substantial amount of care on a regular basis.

• Assess the ability of a carer to continue caring if he/she requests it.

These assessments should:-

• Take into account the support that is available from carers
• Make carers feel that the provision of care is a shared responsibility
between them and the statutory authorities
• Take carers’ preferences into account
• Not assume carers’ willingness to continue caring
• Carry out the assessment in consultation with both service-user and

Further Information:

The 2004 Act was implemented in Wales in April 2005. It amends both the 1995 Act and the 2000 Act, and gives carers greater choice and opportunities to lead more fulfilling lives by requiring Local Authorities to ensure that:

  • carers are informed of their rights, including their entitlement to a carer’s assessment,
  • a carer’s assessment takes into consideration the carer’s need or wish to work, or wish to have a break from caring to undertake, education, training or a leisure activity.
  • other parts of a local authority (for example Housing or Education) work with Social Services, if Social Services asks for their assistance, to help provide support to carers.

The Nearest Relative within the Mental Health Act

The term “Nearest Relative” is used frequently in mental health legislation to refer to the person closest to a patient who is, or is being assessed with a view to being, detained under the Mental Health Act. The “Nearest Relative” may well have a significant role in caring for the patient, but does not have to be. In any event a patient’s Nearest Relative has an important role under the Mental Health Act as being a safeguard for them.

A patient’s Nearest Relative is not necessarily their “net of kin”. Who it is is set out in Section 26 of the Mental Health Act and it is normally the person highest in the following list:

• Husband, wife, or civil partner (whether or not they are legally
married or partners)
• Son or daughter
• Father or mother
• Brother or sister
• Grandfather or grandmother
• Uncle or aunt
• Nephew or niece

Where there are two potential contenders at the same level, it will be the elder of the two (irrespective of gender).

The Nearest Relative has some important roles or rights under the Mental Health Act. In summary Nearest Relatives should be informed about, consulted on, and be able to contribute to a range of key decisions about the patient’s care and treatment. In addition they have a number of very specific legal roles specified in the Act and these include the following (although this is not an exhaustive list):

  • to make an application for the patient’s admission and detention in hospital under Sections 2, 3 and 4, or for reception into Guardianship under Section7 (although it is important to note that the Mental health Act Code of Practice states that this role is normally better left to an AMHP),
  • to be informed if the AMHP is making an application under Section 2, and also to require that an assessment is made if this is not happening,
  • to be consulted if the AMHP is making an application under Sections 3 or 7,
  • to object to an application made by an AMHP under Sections 3 or 7 (in which case the application cannot go ahead unless the Nearest Relative is removed by a county Court)
  • to be informed about the outcome of an assessment (and to make use of their own right to make an application if the AMHP decides not to),
  • to be given a range of information about the patient’s detention, including information about referrals to the MHRT for Wales (unless the patient objects),
  • to be given seven days notice that the patient is to be discharged(unless the patient objects),
  • to discharge the patient from Sections 3 or 7 by giving 72 hours notice to the Hospital Managers (although this can be overruled
  • to be informed about, and involved in, decisions about the patient’s Supervised Community Treatment, and to discharge the patient from SCT.

Carers and the Mental Health Act

Unlike the “Nearest Relative”, carers have no specific rights or roles given to them through the Mental Health Act. However, the importance of carers is recognised for the first time in Mental Health Act Codes of Practice through the Code for Wales which came into force in November 2008. Chapter 24 of the Code is entitled “Involvement of Carers” and it makes it clear that professionals have a clear responsibility to involve carers in decision making around the patient.

Specifically the Code states that carers should be informed about, contribute to and be involved in the patient’s assessment, care planning, treatment, discharge and aftercare. It also states that professionals should have regard to the needs of carers when undertaking their caring role, including their need for information, training or support, and also regard to the risks and pressures they may face.

Further Information for Nearest Relatives and Carers

The Mental Health Act Code of Practice for Wales is a useful source of information for both Nearest Relatives and carers. As well as having specific chapters on both roles (Chapter 23 and Chapter 24) there are frequent additional references throughout the Code and these can be easily accessed via the comprehensive index at the end of the Code. This index sets out the key references for both carers and Nearest Relatives.

All the major documents relating to the Mental Health Act and the Code of Practice, including information leaflets, are available on the Health in Wales website.