Summary: Miss X complained the Council delayed taking action between August 2023 and November 2024 to displace her as the nearest relative under the Mental Health Act for her mother, Mrs Z after she told the Council she was incapable of acting. There are no records showing Miss X asked the Council to displace her prior to November 2024. The Council acted without fault once it was alerted to Miss X’s request and the Court displaced Miss X in February 2025

The complaint

1. Miss X complained the Council delayed taking action to displace her as nearest relative under the Mental Health Act for her mother, Mrs Z after she told it she was incapable of continuing to act.
2. Miss X said the delays to assist and remove her as nearest relative caused her distress and affected her mental and physical health.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Mental Health Act

7. The Mental Health Act is a law that tells people with a mental health disorder what their rights are and how they can be treated.

Nearest Relative

8. Nearest relative (NR) is a special term used in the Mental Health Act 1983. It gives a member of someone’s family rights and responsibilities if that person is detained in hospital under the Act or under a Community Treatment Order (CTO). A CTO is a legal order allowing a person previously detained under the Mental Health Act to live in the community under certain conditions while they continue to receive treatment.
9. Section 26 of the Mental Health Act 1983 sets out who the nearest relative will be. The list is in strict order and the person who is highest on the list is your nearest relative. Someone’s son or daughter is second on the list after the persons husband/wife/civil partner.
10. If the NR is not a suitable person an application can be made to the County Court to remove them. This is known as displacement. The Court will then decide who to appoint as the most suitable person as the NR.
11. An approved mental health professional (AMHP) can apply to the County Court to displace or remove the NR. An AMHP will only make the application if they believe that:
• It is not reasonable for the detained person or anyone else to apply to court
• The person should be detained in hospital but the NR disagrees without good reason
• The NR is likely to discharge the person from detention without thought for the person’s or other people’s welfare.
• The NR is not able to act because of themselves having a mental disorder or illness.
• The NR is not a suitable person.

What happened

12. Miss X is the nearest relative (NR) to her mother, Mrs Z according to the list under the Mental Health Act (MHA).
13. Records show that in July 2023, following concerns from neighbours a MHA assessment took place with Mrs Z, coordinated by the AMHP Hub. The AMHP Hub is responsible for undertaking assessments under the MHA in the Council’s area. Following the assessment a doctor recommended that Mrs Z be detained in hospital under the MHA for further assessment.
14. Records of the assessment visit show the AMHP called Miss X as the NR to inform her of Mrs Z’s detention. They show Miss X agreed she was the NR and welcomed the intervention stating Mrs Z had been unwell for many years. Miss X said she reluctantly agreed to act as NR while Mrs Z was in hospital.
15. Miss X said she spoke with a different AMHP while Mrs Z was in hospital, shortly before she was due to be released under a Community Treatment Order. Miss X said she told the AMHP that she no longer wished to act as the NR and does not have contact with Mrs Z. Miss X outlined various childhood trauma events and her own mental health issues as the reason. Miss X said the AMHP agreed to arrange the removal of her as NR. Miss X said she reiterated her request in a professionals meeting with the NHS team. There are however no actual records of Miss X’s requests for removal at this time.
16. Records show Mrs Z was released from hospital under a CTO in September 2023.
17. Miss X said she continued to receive calls and text messages from social workers at the Council around Mrs Z’s care. Miss X said this left her anxious and distressed and she kept reiterating that she wanted no further contact about Mrs Z’s care.
18. The AMHP carried out visits with Mrs Z as part of the CTO in March and September 2024. Records of these visits refer to Miss X as the NR but much of the detail appears to be from past assessments and Miss X does not appear to have been spoken to. There is no reference to Miss X wanting to be displaced as NR.
19. Miss X contacted the Council in early November 2024 asking it to displace her as NR. The Council says this is the first time it was alerted to Miss X’s wish not to act as NR. A few days later an AMHP called Miss X. Miss X sent text messages back stating there is nobody else to delegate the role of NR to and that it would now need a professional to act instead. The Council said it would put a marker on file not to contact Miss X and would write to her outlining this.
20. Miss X formally complained to the Council in November 2024. She said despite repeated requests the Council had failed to remove her as NR. Miss X said she continued to be harassed about Mrs Z by the NHS and the AMHP team. Miss X said she was mentally incapable of acting as NR. Miss X said she did not want to remain ‘on file’ as NR and said the MHA allows for displacement by virtue that she was incapable because of her own mental health issues. Miss X pointed out the Council can apply to the Court to have Miss X displaced.
21. The Council responded to Miss X’s complaint in early December 2024. It said it was only alerted to Miss X’s request in November. The Council’s view at this time was that none of the specific circumstances (outlined in paragraph 13) applied to Miss X. It said it does not routinely approach the Court to displace an NR. It said it would refer Mrs Z to an Independent Mental Health Act Advocate. It said the AMHP team would not contact Miss X again about the matter.
22. Miss X was unhappy with the response and contact the Council again a week later. She stated two of the circumstances (outlined in paragraph 13) applied in that:
• She was incapable of acting as NR due to her own mental and physical health problems, and
• She was not suitable because she wished Mrs Z to be dead due to past childhood traumas.
23. Following this further information from Miss X the Council decided to proceed with displacing Miss X as the NR. Records show the Council applied to the Court in January 2025 and in February 2025 the Court displaced Miss X as NR due to her not being suitable. A friend of Mrs Z’s agreed to act as NR going forward.
24. Miss X remained unhappy and complained to us.

My findings

25. Miss X’s main complaint is that the Council failed to act on her requests to be displaced as Mrs Z’s NR between 2023 and 2024. There is no documented evidence or records from either Miss X or the Council showing Miss X asked the Council to displace her as NR prior to November 2024. While it is possible she could have raised this to professionals over the phone or in conversation the lack of records make it difficult to take a view on whether the Council should or could have acted earlier. It is also likely that some of the professionals Miss X spoke to were part of the NHS or other agencies which is why the Council does not hold any records. The lack of records mean there is not enough evidence to make a finding of fault between 2023 and 2024.
26. The first documented record of Miss X asking to be displaced was in November 2024. Initially the Council did not believe any of the specific circumstances outlined in the MHA for displacement applied to Miss X but then reconsidered this once she provided further evidence. There was no fault in that decision. The Council applied to the Court for displacement in January and the Court process concluded in February. There was no delay during this period and therefore no evidence of fault.

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Decision

27. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman