Notes for SWHN seminar: 4th April 08
The Nearest Relative
INTRODUCTION
Introduce self
Power point slide:
Title of talk
Name
SCWRU
What I want to do:

Provide brief background history

Describe it’s shaping up

Explain some recent ‘past history’ and what will happen to the role under
the new MHA
Much of my talk relates to my PhD undertaken p/t 1995 – 2003 – deeply grateful
to Professor Shula Ramon, Anglia Ruskin University and Professor William
Bingley formerly of University of Central Lancashire for their support.
My study contained historical and contemporary elements. The historical – trawl
of official publications and literature – the contemporary – focus group interviews
of service users, carers and ASWs. I’m focusing on the historical elements but
will touch on my research findings later.
WHAT IS THE NR?
Power point slide:
Current NR
Can influence relative’s detention
Legal hierarchy identifies
Early origins: Madhouse Law
Just as a starting point the current NR has serious powers to influence a close
relative’s detention in hospital and is legally identified from a hierarchy of
relatives. The evolution of NR and social work (ASW) roles are deeply
intertwined. However, whilst the early origins of the Approved Social Work can be
traced back to the Poor Laws, those of the nearest relative lie in laws to regulate
private madhouses and inmate admissions.
BRIEF HISTORICAL BACKGROUND
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Power point
Statute de Prerogativa Regis (medieval)
Madhouses Act 1774
Madhouses Act 1828
Lunacy & Lunatics Asylum and Paupers Acts 1845
Lunacy Act 1890
Close relatives are almost inevitably involved if a family member has a mental
health breakdown. Probably the earliest form of relative involvement in English
Law derives from the Statute de Prerogativa Regis - Court of Protection’s origins
and the need to look after a person’s estate - or safeguard one’s inheritance!
This tranche of law entered ‘mainstream’ lunacy law in 1845, which also
governed compulsion, survived until the MHA 1959 – heirs and relatives
petitioned the Lord Chancellor – if satisfied of the case – the sheriff of the county
would be required to try the case by Jury - anyone appointed to look after the
Committee of the Person – often a relative – had huge powers – and could
determine where the individual lived and even order his or her admission to and
detention in hospital without certification or recourse to other admission
procedures. However, the ‘Chancery Lunatics’ were a very small number.
However, the origins of the nearest relative’s powers today are most clearly
visible in the Madhouses Act of 1774 with the rapid growth of madhouses and
concern about relatives being abandoned in establishments run for profit and
condemned as being overcrowded, dirty and inhumane. This Act officially started
the process of certification as a legal requirement for the admission of private
‘lunatics’. The certificate should identify the name of the person sending the
patient – usually a relative – and the advising physician or apothecary.
The Madhouses Act 1828 aimed to strengthen safeguards against illegal
detention and protracted confinement. It required two medical certificates and a
relative’s authorisation to sanction admission. A duty was imposed on an
authorising relative to visit once every six months by proxy or in person.
Under Lunacy laws of 1845 the welfare functions of relatives were extended to
public asylums. Relatives could apply to regulatory bodies to visit the patient and
permit his or her examination by an independent doctor.
Under the Lunacy Act of 1890 a relatives was defined as a lineal ancestor not
more remote than great grandparents (Section 341) – this was mirrored under
Poor Law Regulations. This Act consolidated the Lunacy Acts of 1845 and
subsequent amendments and brought private and state admissions together in
one law.
You can see the origins of the MHA 1959 – the 2 med certs – the non-medical
legal application – safeguard potential of the NR – right to have the patient
examined by an independent doctor – the beginnings of a hierarchy. All the time
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these relatives were very powerful because they were paying for the patient’s
admission.
IT’S OFFICIAL BIRTH & AFTERMATH
Pp
Royal Commission
Relatives different definitions & roles
Tensions – problem relatives
Standing Committee E
Mental Health Act 1959
Admission via NR or MWO – court procedure abolished
Royal Commission set up to review mental deficiency and lunacy laws
Various means of identifying relatives under Lunacy and mental Deficiency and
Criminal Insanity Laws
Tensions re relatives – important safeguard versus troublesome people
RC preferred relatives making application – Parliament the MWO
Pp\Dr Summerskill quote
Pp Hierarchy & groundrules
The nearest relative was officially born under the Mental Health Act 1959.
Percy – referred to a nearest relative – at this point
Worked up by Standing Committee E
Hierarchy and ground rules – hierarchy resembles Inheritance laws and table of
kindred and affinity Common Prayer.
Intentions – closest family tie – affection
Pp
Powers
To make the application
To object to a treatment section (civil cases)
To seek discharge
Powers drawn from previous Acts – NR on par with SW to make the application –
(probably occurred because of parlous state of SW at the time) - power to object
and seek discharge.
1960s
1960s theoretical development – or relevance to NR
Pp
AB
SW influences:
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Laingian
Oppression/self-determination/autonomy
Anti-discrimination
Normalisation and SRV and advocacy
NR mostly became associated with negatives of oppression and discrimination –
will return to theoretical aspects later
I don’t know the proportion of NR:MWO applications but first of 3 govt docs on
MHA reform (DHSS, 1976) stated that by this time most applications were made
by the MWO.
Fast forward to 1983 Act
Concerns – power of relatives combined with family Dr service – emergency Drs
who didn’t know the patient - and emergency admissions – assessment being
medicalised and a fait accompli.
1976 – report notes most applications made by the MWO (increasingly
professionally qualified tho’ not necessarily in MH). I don’t know what the SW:NR
applications ratio immediately following the 1959 Act and certainly no formal
statistics exist for the 1983 Act.
B Faithfull
BASW and MIND lobby for early social assessment to seek viable alternatives to
hospital – emphasis on MWO application – wanted NR removed from this role –
problems of vested interests – SW better alternative as qualified.
ADDS – some relatives would prefer to make application
NSF – anxious not to lose power to apply – concern that SW 24 hour emergency
duty systems not up an running in all areas – in spite of ADSS assurances.
NR survived – but by a narrow margin.
Pp
New power to seek assessment via SSD
ID additions:
Relative who ‘cared for’ the pt prioritised
5-year relationship added to NR list
Clever additions
S13(4) – NR could ask the LA to co-ordinate a MHA assessment – this gave the
message NRs were under no obligation to make the application and should have
enabled ASWs to make an early social assessment of the case to maximise the
potential for hospital alternatives – this failed because the power was never
publicised.
Change to NR ID – relative who ‘cared for’ the patient – added 5 yr relationship –
tho’ homosexual relationships still not recognised on a par with heterosexual.
1990s and run up to MHA reform
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Pp MHAC 1991
Case law hot spots – 1) sexual abuse 2) way of challenging legality of detention
(essentially because of wrongful ID or inattention to procedures)
Problems of sexual abuser relatives – MHAC 1991
ECCHR – NR incompatible with Art 8 – JT and FC
MHAC’s recommendations re procedure to remove bad relatives – ignored!
Courts eventually found a way of overcoming legal technicalities re NR and
detention by finding in favour of the patient and giving the authorities time to
reassess the case. Case law dried up on this score.
Problems of removing relatives deemed to be objecting unreasonably to
detention – case law sanctioned the displacement of such NRs under a county
court procedures – as it stands – an emergency application can be made to the
county court and the relative can be displaced without being present (personally I
think there is much more thinking that needs to go on here – but it shows the
power of professional judgement).
Case law also found against the discrimination in respect of same sex
relationships.
Rise of the carer – hints of NR demise
Pp
Carer movement
Community care – shortage of carers
1995 Carers Act – right to own assessment of need
Psychiatric homicides
1995 MHA amendment – supervised discharge
1995 – after a lobby from a growing carer movement – carer right to assessment
of own needs – followed by additional carer policy and legislation supporting the
carer role.
Spate of highly publicised homicides (tho’ research has shown there has been
NO increase over last 40 years) – led to government’s increasing focus on public
safety which has dogged MHA reform.
Supervised discharge – the NR lost the power of application – and only retained
the right to be consulted when danger to the NR was envisaged (and this placed
the minister on a ‘tightrope’) – the ASW was relegated to making the
recommendation.
MHA reform – late 1990s
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Pp
Proposals to remove NR
Replace with NP and carer
NP appointed by pt – rights to be involved in care plans
Carer – rights to be involved if pt agreed
Carer and NP probably same person
Following the recommendations of the Richardson Committee and Two
draft MH Bills: NR to be replaced by the NP nominated by the pt and the
carer. The hope was that the NP and the carer would have been one and the
same person
In principle right – but in practice highly complex – but it would have caused
professionals to think much more about relationship issues!
Pp – e.g. if conflict quote
But I have very great concern re lack of understanding about family issues and
MH on part of drafters.
Pp
Main findings:
NR little known by S/us and carers
Powers seldom used
Potential for ASW/NR reciprocation
Positive potential overlooked
Major problem with ID
NR – tarnished by political neglect – inappropriate relatives more heard about –
MHAC’s recommendations ignored.
NR associated with negatives – discrimination – oppression.
But my contention – when the role was being fleshed out under the 1983 Act –
giving the potential for ASW and NR to work together – advocacy, normalisation
and social role valorisation theories were in the ether. The NR has vast powers –
the ASW and NR by working reciprocally can be a formidable force to
counterbalance medical hegemony. After analysing my data from focus groups of
carers, service users and ASWs – and using the Grounded Theory method – I
developed the theory of Reciprocal Role Valorisation as the positive
underpinnings of the NR role.
My PhD was used by the MH Alliance – drafting carer paper
Pp
MHA amendment
MHA 2007
NR survival
Inappropriate NR
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Same sex relationships parity
The third draft MH Bill – now law – govt decided against radical reform in favour
of amending MHA 1983 - NR has survived again – intact – save improved on
removing inappropriate NRs – and giving pts the right to choose a replacement –
same sex relationships are now acknowledged.
Practice issues – compare and contrast
Pp
Professional prejudices
Assessment of care and social context
Carer information and risk assessment
Person-centred care
Bristol case
NRs are often being ignored – professional prejudices – lack of insight in need to
assess relationships rather than taking things at face value – poor understanding
of data protection and the care context – or even how carer information can
inform risk assessments (carers being those most at risk) – problem
interpretations of person- centred care which seems to focus entirely on the pt –
simplistic interpretations of case law (the Bristol case) where it’s deemed
impractical to contact the NR if doing so may harm the pt – but it’s often on the
patient’s say so.
So the family basis of MH care is under threat – the bread and butter of good
social work – family dynamics – roles are being split – carer support workers are
often deputed to the family (who are not usually professionally qualified) whilst
the other professionals look after the patient – although carer education and
carer support are at least on the map.
END
So I’ve rushed over the NR’s lengthy evolution, it’s birth and near demise and
resurrection. The role still has potential – but it will take more than august powers
to achieve this.
And just as an end note – if I’d been doing this research now it would never have
got off the ground – there is so much professional prejudice against the NR –
particularly amongst SW managers – I don’t think it would ever have been
passed by the new Ethics’ committees.
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