Mental Health Tribunals

This article provides a detailed explanation of Mental Health Tribunals (MHTs) within the context of the Mental Health Act (MHA) 1983 in England and Wales. The MHA 1983 (Amended 2007) provides the legal framework for the compulsory admission to hospital for treatment or assessment of individuals experiencing mental disorders that may pose a risk to their own health or safety, or the safety of others. The Mental Health Act Manual by Richard Jones is the best resource for information on this topic. I use it all the time. This article is not a ‘one-stop shop’ for all information on MHTS. New information will be added at intervals

The MHA is a powerful piece of legislation as it limits or restricts several Human Rights afforded by the Human Rights Act 1998. The restrictions may apply when detained and even to some extent when some people are living in the community and subject to Community Treatment Orders (CTOs) or conditionally discharged from a Restriction Order (usually S41). Whilst there are some checks and balances within the Act, there is a need for further review and safeguards over Statutory power.

Role and Purpose of Mental Health Tribunals

Mental Health Tribunals are independent judicial bodies from His Majesty’s Courts & Tribunals – that review the detention of individuals under the MHA 1983. They have the power to discharge patients from detention or to uphold the detention if it is deemed necessary. Not widely appreciated is that MHTs are considered as courts and can, subject to certain procedures, overrule the power of the State in individual cases.

MHTs ensure that the criteria for detention are met, that less restrictive options are considered, and that patients’ rights are protected throughout the detention process.

The MHA 1983 establishes the legal basis for MHTs and sets out the criteria for detention and the rights of patients to appeal their detention. Part V of the MHA 1983 specifically addresses MHTs, outlining their constitution and powers. Section 26 of the MHA 1983 applies when an individual is detained under Sections 2, 3, or 37, or when they are under a Community Treatment Order (Section 17A) or have a Guardian (Section 7).

Mental Health Review Tribunal for Wales

In Wales, a separate Mental Health Review Tribunal for Wales exists to deal with applications and references by and in respect of patients under the MHA 1983. This ensures that Welsh patients have access to a dedicated tribunal that understands the specific context and needs of the Welsh population.

Tribunal Procedure Rules and Guidance

Several legal documents provide guidance on MHT procedures and ensure consistency and fairness in the process:

Frequency of Tribunal Applications and Exclusions

The frequency with which a detained patient can apply for an MHT hearing depends on the section of the MHA 1983 under which they are detained 9. The following table summarizes the application frequencies for different types of detention:

Section of the MHAFrequency of Application or Hearing.
Section 2Once within 14 days of detention
Section 3Once in the first 6 months, once in the second 6 months, then annually. [If no application then reference Tribunal automatically in second 6 months, then if no application automatically again in 3 years or after 12 months if a child or adolescent.]
Section 4Only if converted to Section 2
Section 37 (except following revocation of a CTO)Once within the second six months from the date of order made by the court, and annually thereafter
Section 37 and Section 41Can apply between 6 and 12 months from the date of the hospital order made by the court. After that once in every 12 month period.
Restricted patients who are conditionally dischargedCan apply 12 months after you were conditionally discharged. After that, once in every 2-year period.

Sections with No Right to Appeal

It is important to note that certain detention orders or processes under the MHA 1983 exclude the right to appeal to a Mental Health Tribunal. These include:

  • Section 5: Holding powers for inpatients who need to be assessed or treated for a mental disorder.
  • Section 135: A warrant to allow police to enter private premises to remove someone to a place of safety.
  • Section 136: Allows police to remove someone from a public place to a place of safety.
  • Court Orders: When an individual is on remand in prison and a court has ordered their detention in hospital.

Tribunal Powers and Recommendations

The MHT has the power to discharge patients from detention or to uphold the detention if it is deemed necessary. In cases where the patient is not discharged, the tribunal can make recommendations about their future care, such as whether they should continue to be detained under the same section or whether they should be considered for informal patient status.

Restricted Patients

For restricted patients, those who pose a significant risk to the public, the tribunal can discharge them, but this may be with certain conditions attached to ensure public safety. If a restricted patient was transferred from prison to hospital, the tribunal can recommend to the Secretary of State for Justice that they should be discharged from their section and where they should receive care and treatment after that.

Factors Influencing Tribunal Decisions

MHTs consider various factors when making decisions about a patient’s detention, including the patient’s mental state, the risk they pose to themselves or others, their treatment needs, and the availability of appropriate care and support in the community.

Tribunal Statistics

Data suggests that the majority of detentions under the MHA 1983 are deemed justifiable. In 2016/17, 30,079 applications were made to MHTs, with 17,744 hearings taking place. Of these hearings, 13,033 detentions were upheld, and 8,751 patients were discharged before their hearing. This indicates that MHTs play a vital role in scrutinising detentions and ensuring they are lawful and appropriate.

Increasing Trend in Detention Rates

Detention rates under the MHA 1983 have been rising exponentially, leading to an increase in MHT application numbers 2. This trend presents significant challenges for the tribunal system, including increased workloads and potential delays in hearing cases.

Relevant Case Law

Several legal cases have shaped the interpretation of the MHA 1983 in relation to MHT hearings. These cases provide important precedents and guidance for MHTs and legal professionals involved in mental health law.

  • R (on the application of B) v Ashworth Hospital Authority [2005] UKHL 20: This case addressed the issue of compulsory treatment for detained patients and emphasised the need to balance treatment needs with individual rights.

These and other cases demonstrate the complexity of mental health law and the crucial role of MHTs in ensuring that the law is applied fairly and that the rights of detained patients are protected.

Appeals Process

If a patient disagrees with the decision of an MHT, they have the right to appeal. The appeals process allows for a higher court to review the tribunal’s decision and determine whether any errors were made in law or procedure. This provides an additional layer of safeguard for patients’ rights.

Complaints Process

Patients also have the right to complain about any aspect of their MHT hearing, including the conduct of the hearing or the behaviour of any individuals involved. Complaints are typically handled by the tribunal administration and can lead to improvements in the tribunal process.

Conclusion

This article has provided an overview of Mental Health Tribunals under the MHA 1983. MHTs are a vital safeguard for individuals detained under the Act, ensuring their rights are protected and that detentions are lawful and appropriate. The frequency of applications varies depending on the section of the Act under which the patient is detained, with specific timeframes and procedures in place. However, certain detention orders exclude the right to appeal to an MHT.

The increasing trend in detention rates poses challenges for the tribunal system, highlighting the need for ongoing review and improvement to ensure timely and effective access to justice for all individuals detained under the MHA 1983.

Reading List

1. Summary of the detaining sections – Mental Health Law Online https://www.mentalhealthlaw.co.uk/Summary_of_the_detaining_sections

2. Decision-Making Behaviour under the Mental Health Act 1983 and Its Impact on Mental Health Tribunals: An English Perspective – MDPI https://www.mdpi.com/2075-471X/7/2/12

3. Mental health review tribunals. A follow-up of reviewed patients – PubMed https://pubmed.ncbi.nlm.nih.gov/9229032/

4. Mental Health Act 1983 – Legislation.gov.uk https://www.legislation.gov.uk/ukpga/1983/20/contents

5. Understanding the Mental Health Act 1983 – Procedures Online, accessed on January 10, 2025, https://www.proceduresonline.com/lbbd/adults/chapters/default_chapters/p_under_ment_health_act.html

6. Part V – Mental Health Act 1983, accessed on January 10, 2025, https://www.legislation.gov.uk/ukpga/1983/20/part/V

7. Regulations | Mental Health Review Tribunal for Wales, accessed on January 10, 2025, https://mentalhealthreviewtribunal.gov.wales/regulations

8. MINISTRY OF JUSTICE – Tribunal Service, Mental Health GUIDANCE – GOV.UK, accessed on January 10, 2025, https://assets.publishing.service.gov.uk/media/633ac2cae90e071e464d2322/Mental_health_casework_section_guidance_-_first_tier_tribunal_addendum.docx

9. Mental Health Review Tribunal Policy, accessed on January 10, 2025, https://www.dpt.nhs.uk/download/LWsretndgE

10. What is the mental health tribunal? – Mind, accessed on January 10, 2025, https://www.mind.org.uk/information-support/legal-rights/leaving-hospital/mental-health-tribunal/

12. P-889 – A study of 300 mental health tribunals in the United Kingdom – ResearchGate, accessed on January 10, 2025, https://www.researchgate.net/publication/272003657_P-889_-_A_study_of_300_mental_health_tribunals_in_the_United_Kingdom

13. MHA 1983 s2 – Mental Health Law Online, accessed on January 10, 2025, https://www.mentalhealthlaw.co.uk/MHA_1983_s2

14. Medical treatment under Part IV of the Mental Health Act 1983 and the Human Rights Act 1998: review of Article 3 and 8 case law | Psychiatric Bulletin | Cambridge Core, accessed on January 10, 2025, https://www.cambridge.org/core/journals/psychiatric-bulletin/article/medical-treatment-under-part-iv-of-the-mental-health-act-1983-and-the-human-rights-act-1998-review-of-article-3-and-8-case-law/49CBDC9C71E4216C44277B24C9A9A6B7

15. Mental Health Review Tribunal for Wales Guidance, accessed on January 10, 2025, https://cavuhb.nhs.wales/files/policies-procedures-and-guidelines/patient-safety-and-quality/mental-health-review-tribunal-for-wales-procedure-amp-guidance-final-pdf/

16. www.mind.org.uk, accessed on January 10, 2025, https://www.mind.org.uk/information-support/legal-rights/leaving-hospital/mental-health-tribunal/#:~:text=The%20Mental%20Health%20Tribunal%20is,totally%20independent%20of%20the%20hospital.