A person detained under section 3 of the Mental Health Act can appeal in their own right to the Mental Health Tribunal or the Hospital Managers (two independent bodies) to ask for their section to be removed, but often as a relative you may want them to leave hospital too. So what can you do?

Unfortunately, only one relative really wields much power when people are detained under section 3. This is dictated by the Mental Health Act and is not the same as Next of Kin. The Nearest Relative is usually whoever appears first in the list below (or the oldest if two relatives appear at the same level):

  1. Husband, wife or civil partner
  2. Son or daughter
  3. Father or mother
  4. Brother or sister
  5. Grandparent
  6. Grandchild
  7. Uncle or aunt
  8. Niece or nephew

There are other criteria which apply but you are most likely to already have been told by the professionals caring for your relative if you are their Nearest Relative. If in doubt contact us and we can help you establish who is the Nearest Relative.

So, if you are the Nearest Relative what can you do to try and discharge your loved one? You must give 72 hours written notice to the managers of the hospital of your intention to discharge your relative. This does not need to be anything fancy. It can simply be a letter stating your name and address and that to the best of your knowledge you are the Nearest Relative. You should confirm that you intend to discharge your relative and state when (not before the expiry of 72 hours) before signing and dating it.

Within the 72 hour period the clinician responsible for your relative’s care can let you discharge them.

The same clinician can prevent you from discharging you relative if they have concerns that your relative would act in a manner dangerous to themselves or others by issuing a Barring certificate. This prevents you from requesting your relatives discharge again for the next 6 months however it also results in:

  1. A Hospital Managers Hearing which will take place within 7 days. The Hospital Managers are an independent body who have the power to remove the section.
  2. You can also appeal to the Mental Health Tribunal within 28 days of the Barring certificate to ask them to discharge your relative. They are also an independent panel made up of a Judge, a psychiatrist and a lay person.

Both you and your relative can be legally represented at both of these hearings. Legal Aid is available for you to be represented and, in the case of a tribunal, is not means tested. Contact David Gray Solicitors LLP’s dedicated Mental Health Team who will be able to advise you further, or visit http://www.davidgray.co.uk.