Overriding next of kin rule

[AnotherAdventurePassed]

Hi, I'm not sure if this is in the right place but any advice is welcome.

Context: My DB is 24, an addict and is in and out of prison. We are both very LC with our mother, however his unfortunately isn't by choice and still IMO craves a relationship with her regardless of how that affects him. Mother is in the process of obtaining a restraining order against DB.
DB is currently in what I believe to be a hostel/supported living accommodation though I have not had the specifics confirmed. This was arranged upon release from his last prison stint. The worker for this place has been trying to contact my mother for the past couple of days, so they can arrange a meeting to discuss his needs and to put a care plan in place i assume.

Mother has basically avoided the calls until today when she begrudgingly returned the call and was quite rude to the worker saying she didn't want to play any part in this meeting and won't risk her position in life or chance of getting this RO by entertaining anything to do with him. As far as she is concerned she will pass her details on but she wants nothing to do with him.

I, personally, think this is disgusting and yet another show of how self absorbed she is. To be frank, she is the reason he has ultimately ended up down this path in the first place. As she is next of kin the accommodation won't entertain discussing DB with any other family member therefore I'm really worried he won't be able to have someone to advocate in getting him the support he needs (in reality he's needed something like this since he was a child).

My question is, is there a way to override this NOK requirement at all? If so how? Im worried that if it isn't possible for another family member to step in to help with this, our mother is basically going to screw him out of this support that may or may not be his only chance to get on the path to finally having an opportunity at a "normal" life.

He can only provide my DGP's details as a form of family contact as its the only information he knows. I know details through them and also because I have been present or answered the phone when the worker have phoned looking for my mother. I also sometimes open his mail, with his permission, if any arrive because he can not read or understand basic instructions in text so would miss appointments/importsnt information if I or someone else didn't do this.

Next of kin really isn't a legal concept. It can be whoever the person concerned wants it to be. If they were so insistent only to speak to her then that will have come from him and who he has consented to share info with I'm afraid

Nearest relative under the Mental Health Act is a legal concept but unless this is a community treatment order or guardianship following on from a Mental Health Act detention it's hard to see how that applies in the situation you have described

(If it is an MHA nearest relative situation then that cannot be changed on request. The person who is NR ie your mum needs to delegate it)

This is not true - a patient with capacity can chose anyone they like to be NOK. HTH.

Op, I think your mum needs to tell them she doesn't want to be his next if kin, and for them not to contact her. The problem at the moment is that she's allowing them to have her details and to pass them on for him, but refusing to engage. It's a really unfair thing to do. If you can I'd talk to her and ask her to request being removed as NOK unless she's happy to actually help, if not she needs to let him choose someone else do it.

Next of kin really isn't a legal concept. It can be whoever the person concerned wants it to be. If they were so insistent only to speak to her then that will have come from him and who he has consented to share info with I'm afraid

Thank you for this information but hypothetically... if she was to get this restraining order banning any contact, unless he changes that consent to others, would they just not liase/share with any one of us for him at all? Or would they have to then ask him to provide another family member?

Overall I'm understanding the consensus is this request has to come from him and can't be something I can just call up and ask to be involved in. Which unfortunately just renders things pretty useless for him.

If brother lacks capacity, then (1) decisions wouldnt be made by his mother on his behalf, unless she is his attorney or guardian (2) mother might be "nearest relative" as defined in legislation, which would give her the right to be consulted

They would probably ask him does he want to provide someone else to be his NOK/ family contact and he can then nominate someone. If he doesn't nominate anyone then no-one will be contacted.

The reason that we ask for one main person to deal with is that otherwise in some families Uncle Tom Cobley and all start ringing with their two pennyworth often conflicting with one another and all wanting to be separately informed. It is often unclear who actually has the persons best interests at heart.

We don't know your family and we would be guided by what the person concerned (your brother) has said.

Why not just call him if you are on good terms and say 'I'm sorry mum didn't want to be involved but I am here for you. Would you like me to be the point of contact?'

Just to be clear, as stated in the OP. My mother has today informed his worker that she cant and doesn't want to attend meetings, have any involvement in the process and with him directly. She told them about the application for a restraining order, which for some reason they have asked for evidence of, and that she would give them her email address for emergencies only on the condition that brother did not get access to this information or for it to be used for any other reason than an emergency.

I know this information because I was at my DGP's when she had this conversation word for word with my GM. Both my DGM & DGF commented that her priorities are clear and wrongly only revolve around her.

Yes she's made it clear she doesn't want involvement but it doesn't then somehow go down a list to the next family member. Many people are estranged from family and just don't have a NOK or anyone involved and make their own decisions with what ever support they can from the social worker or an independent advocate can sometimes be involved for unbefriended people who might lack capacity.

It comes down to if he wants family involved he needs to say who he would like it he may choose not to have anyone involved.

Unfortunately this wasn't our experience. Two different hospitals, one an emergency admission via a&e, the other straight onto the ward. We both definitely had capacity! We weren't married. We both - on separate occasions - tried to put our partner as next of kin/decision maker. Both hospitals refused and said only our parents could be named as nok if they were still living (which they were). A long-standing live-together partner simply didn't count.
I appreciate you weren't aware that I was going off my own experience, but please don't insinuate I'm lying by writing 'This is not true.' No, your two pennorth didn't help.

I suppose what is legal and what is a hospital policy can differ

It is certainly true that next of kin has no legal
status and confers no legal rights outside the specific instance of the nearest relative under the Mental Health Act

I am surprised that some hospitals have a stupid policy that is backwards enough to think that an adult needs to name their parent over their partner but I can believe that it is true.

Im suspecting wanting to have evidence of the restraining order is to evidence why his wish to have his mother involved was not possible to respect.

The restraining order isn't actually active yet, as he is/was homeless up until his most recent prison release so he was unable to be served notice of the order. Therefore it is still in the application process and hasn't actually been to court yet. So he legally could not be made aware of the court date or the order for it to be heard. To date, as far as im aware this still remains the case.

@AnotherAdventurePassed You sound like an incredible human being. I can't offer any practical advice but I hope you are able to get your brother the support he needs. It sounds like you've had a hard time of it too - please don't neglect yourself and your needs. Best wishes.

As others have said, talk to your brother about making lasting powers of attorney, for both health and welfare, and finance. They take a while to get in place, but means you can better support your brother in the future.

Regardless of what they consider your status to be there is absolutely nothing to prevent you from contacting them and explaining all that you have shared here and anything else that you think is relevant. They should then take that into consideration when making any future plans.
It will be down to them and their policies and your brother giving permission whether or not you are involved in any meetings.
Your brother is an adult so they can not expect you to take on responsibility for him. Good practice would be to involve you if that os your brothers wish.
Another alternative if your mother isn't engaging is to explore independent advocacy.

Sorry but it's really not the case that the nhs would legally regard his mother as NOK. NOK has no offical legal status.

This person is correct.

Is the social worker trying to contact your mum identifying themselves as an AMHP? (Approved Mental Health Practitioner)

If he is subject to a Community Treatment Order, or they are trying to detain him under the MHA they must speak with Nearest Relative which is strictly defined under the MHA.

The AMHP can apply to Court to have your mother removed as NR but it goes to the next person on the "list", not who he nominates. The MHA NR is very different to the NOK concept. Or who is an "appropriate befriender" under the Mental Capacity Act.

If there is a solicitor dealing with your mum's RO maybe they could contact the social worker and establish if it is a NR/MHA situation. I am sure the RO application would be helpful to the AMHP making any application to displace a NR.

Obviously this was your experience, but it definitely isn't the case everywhere, so it can't be impossible to do. As I said in the same situation my partner was able to nominate me as nok despite having parents and a brother alive and involved.

The staff who refused to put your partner as nok are completely in the wrong and, if you can remember their names, complain. NOK in the NHS has no legal standing, it can be a relative, a partner, a friend, neighbour - essentially anyone you choose. I say this as someone who has spoken to hundreds if not thousands of people named as NOK in the NHS!

OP - as others have said, those needs to come from him. Why can’t you speak to him about this and ask him to talk to the SW if he wants your involvement? Capacity is very difficult and sometimes if people are making poor choices we feel like they might not have capacity but, in reality, they are just making poor choices.

@EatSleepDreamRepeat Thank you for that information. The person contacting us to speak to my mother stated she was a worker at the accommodation he has been placed at, so I don't think she's a social worker or MH worker, I believe more so a carer or admin type to the supported loving arrangement. The information I or my GM were able to get out of the lady to pass on to my mother was extremely minimal as she was very cautious that we were not the people she was calling to talk to.

It isn't clear to me what specifically the accommodation is but it sounds like a rehabilitation for either addiction or offenders type place rather than a MH hospital or somewhere he's needed to be detained by someone that passes on his rights to a degree. If that makes sense.

The information I have specifically been able to get so far is... He was released from prison 2 to 3 weeks ago, the police contacted my mother so she was aware (due to the RO application) and also informed her there was accommodation waiting for him upon release so he wouldn't return to our area. A lady called my grans on Thursday, friday and twice today (I answered 2 calls and my GM answered 2) asked to speak to my mother by name and had to verify both of us in detail before she would even tell us who she was. She said she was a worker where DB was and needed to speak to M about attending a care planning meeting on Monday. M had to attend but could do this virtually. The lady provided the time/date of meeting and her contact information requesting an urgent call back from M to provide her details to attend. She stated she couldn't discuss anything further with anyone other than M.

Is he possibly in an Approved Premises? This is somewhere that sometimes people are released to for 12 weeks after prison.

Do you know anything about his offending history? Is your mum a victim and they are consulting her about his next address?

There is such a thing as a "locked rehab". It is a MH hospital where people, often with enduring MH needs, go for longer term treatment and rehab. The MHA applies there with NR in the same way as an NHS type hospital.

It is also entirely possible the staff member does not have a good grasp of the legal frameworks and how NOK actually works. In which case if you know the organisation that runs it, see if you can get hold of some kind of registered manager or clinical lead for a chat.

An Approved Premises will have Probation Officers attached. You could contact the local Probation Office in the town where he is living. Declare yourself as a good influence and wanting to help and your mum not wanting to and pursuing a RO. They won't disclose information to you but you could try an "if he is on your books please tell his PO to pass on my details, get his consent to contact me cos I want to help" kind of chat.

Contact his case worker by email or letter and say exactly this.

I know his offending history over the last couple of years yes due to reading his letters for him. They consisted of mainly of multiple shoplifting and possession of drugs (heroine & cocaine) incidents most of which he was jailed or recieved a suspended sentence due to already being on licence, then 1 offence at the beginning of this year for criminal damage which was the incident where he smashed my mother's kitchen window when she refused to give him his bank card so he could attend court for a shoplifting offence, he was jailed for 8 weeks for this as he was also in breech of his licence conditions for not attending court that day. As stated earlier he has had multiple prison stints but none have lasted longer than 4 month at a time. This last release was for shoplifting on licence and was a 8 week sentence.

He hasn't had an address for over 3 years. He has primarily lived on the streets or at some dealers/druggys house in this whole time, which they know so its unlikely they will be looking for a residency address because there is and never was one.

He has no friends, no possessions and no where to go at all, as far as im aware he literally has nothing but the clothes on his back. I do know that during his recent prison time they were calling with concern because he had consistently started hallucinating, so a MH facility may be plausible come to think of it.