Mental health – nearest relative – human rights – discrimination
In a case settled by consent and approved by the High Court on 22 October 2002, the government has accepted that the interpretation of the provisions for naming the ‘nearest relative’ under MHA 1983, discriminated against homosexual couples, contrary to art 14 of the European Convention. Under the then current interpretation of those provisions, the gay partner of a mentally ill person could not qualify as a ‘nearest relative’ (ie as a spouse), unless he or she had been living with the patient for a minimum of five years. By contrast, heterosexual couples need only have lived together for six months, in order for the patient’s partner to qualify.
Following the settlement of this case, the partners of mental health patients in same sex relationships will have the same rights as heterosexual unmarried couples. The case concerned SSG, a 30 year old woman from Liverpool who was being treated for schizophrenia in the community. She had been living in a stable relationship with her partner since August 1999 and therefore fell short of the five year rule. Her ‘nearest relative’ was thought to be her mother with whom SSG did not enjoy a good relationship and had not been in contact with for a significant period. SSG trusted her partner to make decisions about her mental health and treatment and wanted her to become her ‘nearest relative’ instead. Liverpool City Council had some sympathy her request but felt it could not amend its records to reflect her wishes as it was constrained by the interpretation of the Mental Health Act at the time. SSG therefore brought proceedings against both the City Council and the Secretary of State for Health. The Secretary of State accepted the arguments of SSG and her solicitors that the provisions relating to the identification of a ‘nearest relative’ in the 1983 Act were discriminatory and resulted in same sex couples who had been living together for six months being treated differently to unmarried heterosexual couples living together for the same period, contrary to the European Convention on Human Rights. As that difference in treatment could not be justified, the discrimination could no longer be allowed to continue.