Contents
1 Introduction
Under the Mental Health Act (MHA) 1983, the nearest relative of a patient (as defined in section 26 MHA 1983) or an acting nearest relative appointed by a county court (under section 29 MHA 1983) has the right to request the patient’s discharge if they are detained for assessment or treatment under part 2 of the MHA 1983 (for example, section 2, 3, guardianship or a community treatment order).
2 Purpose
The purpose of this procedure is to provide:
- clinical employees with a clear framework to ascertain that the person making the request is in fact the patient’s nearest relative within the meaning of the MHA 1983
- detail the responsibilities and duties of employees involved
- give clear guidance to clinical employees on the action they need to take in the event of such a request being made
3 Scope
The contents of this procedure apply to all clinical employees that work within the trust across the 5 care groups for those working with people subject to detention under the MHA.
4 Responsibilities, accountabilities and duties
4.1 Mental health legislation committee
The trust’s mental health legislation committee is responsible for:
- overseeing the implementation of the MHA 1983 within the organisation
- receiving assurance that all policies and procedures which relate to the MHA 1983 are in date and meet the legislative and code of practice requirements
- receiving assurance that the trust’s compliance with the legal requirements of the MHA 1983 are met
- receiving assurance that any audits undertaken and associated action plans, in relation to the MHA 1983, are addressed
4.2 Hospital managers
When the Act uses the term “hospital managers”, its meaning, in the case of a foundation trust is the trust itself. In practice, most of the decisions of the hospital managers are actually taken by individuals (or groups of individuals) on their behalf including, for example the provision of information pertaining to the nearest relative’s power of discharge, in delegating this responsibility, the trust must be satisfied that:
- the correct information is given to the nearest relative
- the information is given in a suitable manner and at a suitable time, and, in accordance with the law
- the employee who is to give the information has received sufficient guidance and is aware of the legal requirements and adheres to this procedure
- the request has been discussed with the patient and the reasons for it
- a record is kept of the information given, including how, when and by whom it was given
Hospital managers should consider holding a review when the responsible clinician makes a report to them under section 25 barring an order by the nearest relative to discharge a patient.
The power to discharge under section 23 MHA 1983 (for example, to override the responsible clinician’s barring order) may not be exercised by anyone employed by the trust. Therefore, the trust appoints panels of people known within the trust as trust associate hospital managers (TAMs) three of whom, form manager’s panels and exercise this function.
4.3 Responsible clinician
The responsible clinician in charge of the patient’s care is responsible for their over all care and treatment whilst they are receiving care. Wherever possible the responsible clinician should be involved in decision making and have a responsibility to provide the required care in the least restrictive way.
4.4 Independent mental health advocate
The role of the independent mental health advocate is to help qualifying patients (those detained under the MHA 1983, conditionally discharged, subject to guardianship or supervised community treatment but not those detained under section 4, section 5, section 135 or 136) understand the legal provision to which they are subject under the MHA 1983 and the rights and safeguards to which they are entitled. This could include assistance in obtaining information about any of the following:
- the provisions of the legislation under which they qualify for an IMHA
- any conditions or restrictions they are subject to, for example; any arrangements made for section 17 leave
- the medical treatment being given, proposed or being discussed and the legal authority under which this would be given
- the requirements that would apply in connection with the giving of the treatment
- their rights under the MHA 1983 and how those rights can be exercised (Mental Health Act 130B (1))
4.5 Registered clinical employees
In relation to this procedure all registered clinical employees must be aware of and comply with the contents of this procedure by ensuring:
- if it is realised that the nearest relative named is not in fact the nearest relative, it is explained to them that they do not have the right to make a request to discharge and explain the reasons why
- when it is established that they are the nearest relative of the patient, discuss with them the reason why they have made such a request. If a problem is identified ascertain whether action can be taken to immediately rectify it
- discuss the request with the patient to ascertain their feelings about their nearest relatives request to discharge them
- notify the patient’s responsible clinician
- notify the Mental Health Act office
4.6 Non-registered clinical employees
Any non-registered employees working within clinical services must:
- be aware of this policy and its contents
- direct any patient who has a query about their nearest relative requesting discharge to a member of the team who is a registered employee
- report any breaches they become aware of in relation to this policy
4.7 Mental Health Act office employees
Within each of the trust localities where there are inpatient services there is a Mental Health Act office and in relation to this policy the employees working in these offices are responsible for:
- recording and the on-going monitoring of the 72 hour period which the responsible clinician has in order to submit a form M2
- notifying the nearest relative and patient, in writing, following the end of the 72-hour period of the outcome and reasons why
- convening a managers hearing, when appropriate, within the timescales laid down by the trust
- notifying the nearest relative and patient, in writing, of the outcome of the Managers Hearing and reasons why
5 Procedure and implementation
5.1 Ensuring the nearest relative is the patient’s nearest relative within the meaning of the MHA 1983
Identification of the nearest relative is complex and should be undertaken by the AMHP who has experience of section 26 of the MHA 1983. Therefore, to ascertain that the person making the request is in fact the patient’s nearest relative within the meaning of the MHA 1983; staff should refer to the approved mental health professionals (AMHP) report. A copy of which will have been provided at the time of the patient’s admission to the ward.
In the event that employees are made aware of information which is in conflict with the nearest relative as identified in the AMHP report they should immediately contact the AMHP team to discuss the situation prior to taking any action in respect of the request for the
discharge of the patient.
If it is realised that the nearest relative named is not in fact the nearest relative within the meaning of the MHA 1983, it should be explained to them that they do not have the legal right to make a request to discharge their relative and explain the reasons why.
5.2 When the nearest relative has been established, what action needs to be taken
When it is established that they are the patient’s nearest relative, discuss with them the reason why they have made such a request and ascertain if there is a problem and whether any action can be immediately taken to rectify it.
Discuss the situation with the patient to ascertain their feelings about their nearest relatives’ request to discharge them.
If action can be taken to rectify the situation, then take the appropriate action.
Liaise with the patient’s responsible clinician as appropriate and document the action taken in the patient’s electronic record.
Ensure that the MHA office are notified at the earliest opportunity of any request for discharge by the nearest relative.
5.3 Where the patient lacks capacity, what action needs to be taken
Where the patient lacks capacity, steps should be taken to engage an independent mental health advocate (IMHA) to act on the patient’s behalf and ensure that due process is followed.
If it is felt by the clinical team that the nearest relative is not acting in, an incapacitated patient’s, best interests then a discussion should be held with the AMHP to consider whether the criteria for displacement of the nearest relative applies.
If there is a safeguarding adult protection concern, consideration should be given to referring to the Safeguarding team.
5.4 When the nearest relative wishes to pursue their right to request discharge
If the patients nearest relative wishes to pursue their right to request discharge, and it is possible to do so, arrangements must be made for them to discuss their request with the patient’s responsible clinician as it may be possible to arrange a period of leave for the patient and then assess for discharge if this goes well.
However, should the nearest relative continue to wish to pursue their right to request discharge, or if a period of leave is not felt appropriate by their responsible clinician, then the registered clinical employee should advise them of the following:
- that they must give 72 hours notice of such a request, in writing, to the managers of the hospital (see appendix A).
Note, this 72 hour period includes weekend and bank holidays and starts from the time the letter is received by the employee.
- During normal working hours the service manager is to be notified that the request has been made. Outside normal working hours employees should inform the bronze on call senior manager.
- The Mental Health Act office is to be notified of the request at the earliest possible opportunity.
- If the request for discharge is agreed, the employee must ensure that the discharge is safe and in line with the discharge procedures.
5.5 Action to be taken by the responsible clinician
If the responsible clinician does not wish the patient to be discharged due to concerns that they may act in a manner dangerous to themselves or others, the responsible clinician must furnish a report to the hospital managers via the Mental Health Act office using a form M2. This report must be made within the 72 hour period.
5.6 Action to be taken by the Mental Health Act office
If the patient’s responsible clinician submits a form M2 barring discharge of the patient by the nearest relative, the Mental Health Act Office, on behalf of the hospital managers, must let the nearest relative know, both verbally and in writing.
This report will prevent the discharge of the patient, unless the hospital managers disagree that the patient would pose a danger to themselves or others.
The patient should be notified, in writing, of the fact that the request for discharge has not been agreed and the reasons why, and an RDaSH Leaflet 4 explaining the process for barring orders be included with the letter.
The Mental Health Act Office must then convene a managers hearing, within 7 days to review the patient’s detention.
Note, if the patient’s responsible clinician completes a report preventing discharge (form M2), it will have the effect of preventing the nearest relative from exercising their power of discharge for the next six months.
However, if the patient is detained on a treatment order the nearest relative can apply to the mental health tribunal and must be notified of this in writing by the hospital managers.
6 Training implications
6.1 Consultant psychiatrists
- How often should this be undertaken: Once when revised policy is launched and whenever case law dictates.
- Length of training: Not applicable.
- Delivery method: New policy to be presented at consultants meeting.
- Training delivered by whom: Executive medical director.
- Were are the records of attendance held: Consultant PDR, appraisal, training records.
6.2 Registered clinical employees (across mental health inpatient and community services)
- How often should this be undertaken: Once when revised policy is launched and whenever case law dictates.
- Length of training: Half day.
- Delivery method: Short presentation on the key changes to the policy and implications for practice.
- Training delivered by whom: Modern matron or service managers and learning and development facilitator.
- Were are the records of attendance held: Staff training attendance records held at ward level and electronic staff record system (ESR).
6.3 Trust associate hospital managers
- How often should this be undertaken: Once when revised policy is launched and whenever case law dictates.
- Length of training: Not applicable.
- Delivery method: Nearest relative rights is included in the induction programme for TAMs.
- Training delivered by whom: MHA manager and learning and development facilitator.
- Were are the records of attendance held: Trust associate hospital manager training records and PDR review.
7 Monitoring arrangements
7.1 Compliance with the 72 hour deadline
- How: Monthly data.
- Who by: MHA office.
- Reported to: Local mental health legislation monitoring groups.
- Frequency: Monthly.
7.2 Compliance with the 7 day deadline for the managers hearing
- How: Monthly data.
- Who by: MHA office.
- Reported to: Local mental health legislation monitoring groups.
- Frequency: Monthly.
8 Equality impact assessment screening
To access the equality impact assessment for this policy, please email rdash.equalityanddiversity@nhs.net to request the document.
8.1 Privacy, dignity and respect
The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi’s review of the NHS, identifies the need to organise care around the individual, ‘not just clinically but in terms of dignity and respect’.
Consequently, the trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity, and respect, (when appropriate this should also include how same sex accommodation is provided).
8.1.1 Indicate how this will be met
No specific needs with regards to the privacy, dignity, and respect of patients have been identified through the development of this procedure
8.2 Mental capacity act
Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individual’s capacity to participate in the decision-making process. Consequently, no intervention should be carried out without either the individual’s informed consent, or the powers included in a legal framework, or by order of the court.
Therefore, the trust is required to make sure that all colleagues working with individuals who use our service are familiar with the provisions within the Mental Capacity Act (2005). For this reason, all procedural documents will be considered, if relevant to reflect the provisions of the Mental Capacity Act (2005)to ensure that the rights of individual are protected, and they are supported to make their own decisions where possible and that any decisions made on their behalf when they lack capacity are made in their best interests and least restrictive of their rights and freedoms.
8.2.1 Indicate how this will be achieved
All individuals involved in the implementation of this policy should do so in accordance with the guiding principles of the Mental Capacity Act 2005 (section 1).
9 Associated documents
- Procedure for informing detained patients of their legal rights under section 132 of the mental health Act 1983, clinical policies, mental health act section.
10 References
- Mental Health Act Manual, Richard Jones 24th edition.
- Code of Practice 2015, Mental Health Act 1983.
- Mental Capacity Act Manual, Richard Jones 6th edition.
- Code of Practice, Mental Capacity Act 2005.
11 Appendices
Appendix A Standard letter for nearest relatives to use to request discharge of patients
Document control
- Version: 10.
- Unique reference number: 81.
- Ratified by: Mental health legislation operational group.
- Date ratified: 16 June 2022.
- Name of originator or author: Mental health act manager.
- Name of responsible individual: Mental health legislation operational group.
- Date issued: 15 June 2023.
- Review date: 30 June 2025.
- Target audience: Qualified nursing employees in the care.
Page last reviewed: April 30, 2024
Next review due: April 30, 2025