The Mental Health Act 1983
A brief guide to the provisions of the Mental Health Act 1983 (“the Act”)
as it is amended by the Mental Health Act 2007.
Section 1 states that the Act concerns “the reception, care and treatment of
mentally disordered patients … and other related matters”.
Meaning of Part 2 and Part 3 patients
People sometimes refer to “Part 2” and “Part 3” patients – Broadly speaking, Part 2 patients are people who have been made subject to some form of compulsory measure under the Act in their own interests or to protect other people, without the involvement of the criminal courts. They are also sometimes termed “civil patients”.
Part 3 patients are those who have been made subject to a compulsory
measure under the Act by the criminal courts, or who have been transferred
to hospital from prison or another type of custody. They are also sometimes
termed “forensic patients”.
Definition of mental disorder
Mental disorder is defined for the purposes of the Act as “any disorder or
disability of the mind”.
Dependence on alcohol or drugs is not considered to be a mental disorder
for the purposes of the Act. This means that it is never possible, for example,
to detain a person in hospital simply because they are dependent on alcohol
or drugs.
Learning disability qualification
The Act defines a learning disability as a “state of arrested or incomplete
development of mind which includes significant impairment of intelligence and
social functioning”. Under the Act, a learning disability is, in general, regarded as a mental disorder because it is a disability of the mind. But, a learning
disability can only be considered a mental disorder if it is associated with
“abnormally aggressive or seriously irresponsible conduct” on the part of the
person concerned. One effect of this learning disability qualification is that people cannot be detained for treatment (rather than assessment) solely on the basis of a
learning disability if they do not show abnormally aggressive or seriously
irresponsible behaviour. Nor can they become SCT patients or be made subject
to guardianship in the absence of such behaviour.
Definition of medical treatment and medical treatment for mental
disorder
Throughout the Act, “medical treatment” includes nursing, psychological
intervention and specialist mental health habilitation, rehabilitation and care
(as well as medication and other forms of treatment which might more
normally be regarded as being “medical”).
Criteria for compulsory admission to hospital for assessment [section 2]
Patients may be detained in hospital for assessment on the grounds that they:
• are suffering from mental disorder of a nature or degree which warrants
their detention in hospital for assessment (or for assessment followed by
medical treatment) for at least a limited period; and
• ought to be so detained in the interests of their health or safety, or with
a view to the protection of others.
Criteria for compulsory admission to hospital for treatment
[section 3]
Patients may be detained in hospital for medical treatment on the grounds that:
• they are suffering from mental disorder of a nature or degree which makes
it appropriate for them to receive medical treatment in hospital;
• it is necessary for their health or safety, or for the protection of others, that
they should receive that treatment;
• that treatment cannot be provided unless they are detained under section 3;
and
• appropriate medical treatment is available for the patient.
Applications for admission to hospital
In order for a patient to be detained in hospital for assessment or treatment
under Part 2 of the Act, an application for admission to hospital must be made
to the managers of the hospital in question.
An application may be made by the patient’s nearest relative, or by an
approved mental health professional acting on behalf of a local social
services authority.
Duty on AMHPs to inform nearest relatives of applications for admission for assessment
Where the application is one for admission for assessment, AMHPs must take
whatever steps are practicable to inform the person (if any) they think is the
patient’s nearest relative:
• that the application is about to be, or has been, made; and
• of the nearest relative’s power to discharge the patient under section 23
Nearest relative’s power to object to an application for admission for treatment and AMHP’s duty to consult
An AMHP may make an application for admission for assessment even though
the nearest relative objects.
Unless the patient is a ward of court, an AMHP may not make an application
for admission for treatment under section 3 if the patient’s nearest relative
objects to it. Nearest relatives may lodge their objection either with the AMHP
directly or with the LSSA on whose behalf the AMHP is acting. The objection
does not have to be made in any particular form, provided it is clearly an
objection to the proposed application being made.
AMHPs must therefore consult the person (if any) they think is the nearest
relative before making the application.
However, AMHPs do not have to consult the nearest relative if, in the
circumstances, they think it is not reasonably practicable or that it would
involve unreasonable delay.
Duty of the AMHP to be satisfied that detention in hospital is the most appropriate course of action
Before making an application (whether for admission for assessment or
treatment), AMHPs must interview the patient “in a suitable manner” – eg
taking account of the patient’s age and understanding and any hearing or
linguistic difficulties the patient may have.
AMHPs must also be satisfied that detention in a hospital is the most
appropriate way of providing the care and medical treatment the patient
needs. In making that decision, AMHPs are required to consider “all the
circumstances of the case”. In practice, that might include the past history
of the patient’s mental disorder, the patient’s present condition and the
social, familial and personal factors bearing on it, as well as the other options
available for supporting the patient, the wishes of the patient and the patient’s
relatives and carers, and the opinion of other professionals involved in caring
for the patient.
In principle, an application can be made even if the patient has only recently
been discharged from detention under the Act.
However, in general, an AMHP cannot lawfully apply for the admission of
a patient who has recently been discharged by the Tribunal if the AMHP is
aware of that fact.
In such cases, AMHPs can only properly make applications if they have formed
a reasonable and bona fide opinion that there was information not known
to the Tribunal which puts a significantly different complexion on the case
compared with that which was before the Tribunal (R. v East London and City
Mental Health NHS Trust, ex p. Brandenburg [2003] UKHL 58). See chapter
20 for more about the Tribunal.
Medical recommendations
An application must be supported by written recommendations from two
doctors who have personally examined the patient. The two doctors may examine the patient jointly or separately. But no more than five clear days must elapse between the days of the two examinations.
Emergency applications for admission for assessment [section 4]
In exceptional cases, it may be necessary to admit patients for assessment
as an emergency before obtaining a second medical recommendation.
An emergency application (“section 4 application”) must state that it is
of urgent necessity that the patient should be admitted and detained for
assessment, and that compliance with the normal procedures would involve
undesirable delay. This must be confirmed by the doctor making the medical
recommendation.
Transport (“conveyance”) of patients to hospital [section 6]
A duly completed application for admission provides the authority for the
applicant, or anyone authorised by the applicant, to take and convey the
patient to the hospital named in the application, in order for the patient to be
admitted and detained there.
Holding power of doctor or approved clinician in charge of patient’s
treatment [section 5(2)]
In-patients (whether or not they are already being treated for mental disorder)
may be detained in a hospital for up to 72 hours if the doctor or approved
clinician in charge of their treatment reports that an application for admission
for assessment or treatment ought to be made.
Nurses’ six hour holding power [section 5(4)Nurses Order]
Nurses “of the prescribed class” may authorise the detention for up to six
hours of a patient who is already being treated for mental disorder in the
hospital as an in-patient if they think that:
• the patient is suffering from mental disorder to such a degree that it is
necessary for the patient’s health or safety, or for the protection of others,
for the patient to be immediately restrained from leaving the hospital; and
• it is not practicable to secure the immediate attendance of a doctor or an
approved clinician for the purpose of furnishing a report under section 5(2)
Remand to hospital for report [section 35]
The courts may remand defendants to hospital for the preparation of a report
on their mental condition.
Remand for treatment [section 36]
The Crown Court may also order the remand to hospital of a defendant for
treatment.
Hospital orders [section 37]
Courts may order the detention in hospital of mentally disordered offenders by
making a hospital order.
Restriction orders [section 41]
A restriction order may be imposed alongside a hospital order by the Crown
Court. A restriction order may be imposed by the Crown Court: If having regard to the nature of the offence, the antecedents of the offender and the risk of the offender committing further offences if set at large, the court thinks it necessary for the protection of the public from serious harm for the person to be subject to the special restrictions which flow from a restriction order.
Interim hospital order [section 38]
Before deciding whether to make a hospital order, courts may, subject to
certain conditions, make an interim hospital order instead for a period (in total)
of no more than 12 months.
Patients who abscond before being admitted under a hospital order
If patients abscond between being given the hospital order and being admitted
to the relevant hospital, they may be taken into custody and returned under
section 138 of the Act.
Patients without a restriction order (“unrestricted patients”) may only be taken
into custody during the six months starting with the date they went missing.
There is no time limit where patients have been given a restriction order as well
– restricted patients can be retaken at any time while their restrictions remain
in force.
Hospital and limitation directions [section 45A]
A hospital direction is a direction for a person’s detention in hospital. A
limitation direction is a direction that they be subject to the special restrictions
in section 41 of the Act which also apply to people given restriction orders.
Committal to the Crown Court [section 43(1)]
A magistrates’ court has no power itself to make a restriction order, but it
may commit an offender to the Crown Court for sentencing with a view to a
restriction order being made.
Interim hospital orders [section 38]
Before deciding whether to give an offender a hospital order, hospital and
limitation directions, a prison sentence, or some other criminal justice disposal,
a court may make an interim hospital order, detaining the patient in hospital
for a maximum (in total) of 12 months.
Restricted Patients
Patients who are, or have been, detained under Part 3 of the Act (of restriction orders, limitation directions and restriction directions). These patients are collectively known as “restricted patients”.
Effect of restrictions
Restricted patients are subject to various special restrictions compared with
other patients (“unrestricted patients”) detained in hospital by the courts or
transferred by the Secretary of State from prison (or other places of detention)
to hospital.
In summary, the main differences are:
Leave of absence Responsible clinicians may only grant restricted patients leave
(section 17) of absence from hospital with the consent of the Secretary of
State for Justice.
Recall from leave of The Secretary of State for Justice may recall patients from
absence (section 17) leave of absence at any time. This is in addition to the power
of responsible clinicians to recall patients from leave.
Restricted patients may not be discharged into the community onto SCT, but may be conditionally discharged instead
Absence without There is no time limit after which the patient may no longer
leave (section 18) be taken into custody and returned to hospital or any other
place they ought to be.
Transfer from one Hospital managers may only transfer patients from one
hospital to another hospital to another with the consent of the Secretary of
(section 19) State for Justice (even if both hospitals are under the same
management).
Absolute discharge – ending of restrictions and the associated authority for detention
The Secretary of State may discharge restricted patients absolutely at any
time if satisfied that restrictions are no longer necessary for the protection of
the public.
The Secretary of State may also consent to the discharge of restricted patients
by the responsible clinician, or the hospital managers.
Restricted patients may also be discharged absolutely by the Tribunal in certain
circumstances.
Conditional discharge
In certain circumstances, restricted patients must be conditionally, rather than
absolutely, discharged by the Tribunal.
In addition, the Secretary of State for Justice may conditionally discharge
restricted patients at any time, by issuing a warrant to that effect.
Conditionally discharged patients may be recalled to hospital by the Secretary
of State for Justice at any time, if it is necessary for the protection of the
public in the light of the patient’s mental disorder. Patients recalled to hospital
become detained patients again.
Defendants who are not fit to stand trial or who have been found not guilty by reason of insanity
Under section 5 of the Criminal Procedure (Insanity) Act 1964 (as amended
by the Domestic Violence Crime and Victims Act 2004), where a person is
found unfit to plead, but to have done the act or made the omission of
which they were accused, the court may make a hospital order under section
37 of the Act. It may also do so if the defendant is found not guilty by reason
of insanity.
Information about independent mental health advocacy for detained patients [section 130D]
Hospital managers must also take steps to provide information about
independent mental health advocacy, where relevant (see chapter 34).
Note: This duty is expected to be in force from April 2009.
Children and young people [section 131A]
Hospital managers are required to ensure that where a child or young person
aged under 18 is admitted to (or remains in) hospital for mental health
treatment, that child or young person’s environment in the hospital is suitable,
having regard to their age (subject to their needs).
Leave of absence from hospital [section 17]
Responsible clinicians may give Part 2 and unrestricted Part 3 patients leave
to be absent from the hospital in which they are detained, subject to any
conditions they think are necessary in the interests of the patient or for the
protection of other people. Responsible clinicians may not delegate this power
to anyone else.
Discharge by the responsible clinician [section 23]
Responsible clinicians may discharge Part 2 or unrestricted Part 3 patients
at any time, by making a written order. They may only discharge restricted
patients in this way with the consent of the Secretary of State for Justice.
Discharge by the hospital managers [section 23]
The hospital managers may also discharge Part 2 and unrestricted Part 3
patients at any time by making a written order. They must always consider
doing so when a responsible clinician makes a report renewing the authority
for a patient’s detention. The managers may only discharge restricted patients with the consent of the Secretary of State for Justice.
Discharge of patients detained in independent hospitals – powers of the Secretary of State [section 23(3)]
In addition to the other people who may do so, the Secretary of State may
at any time discharge a Part 2 or Part 3 patient liable to be detained in an
independent hospital.
Discharge by the Tribunal [Part 5]
Part 2 and Part 3 patients may also be discharged by the First-tier Tribunal
(or the Upper Tribunal on appeal).
Duty of managers to inform nearest relative of discharge [section 133]
Where a patient is to be discharged from detention under the Act, the hospital
managers must take whatever steps are practicable to inform the person they
think is the patient’s nearest relative, unless the patient or the nearest relative
has asked that such information should not be given (or the patient does not
have a nearest relative).
Provision of pocket money for hospital in-patients [section 122]
The Secretary of State has the power under section 122 to make payments to
hospital in-patients (whether or not they are detained under the Act) to cover
their occasional personal expenses where the Secretary of State thinks they
would otherwise not have the resources to meet those expenses themselves.
This only applies to hospitals which are used mainly or wholly for the
treatment of people suffering from mental disorder. This power has been delegated to primary care trusts.
Detention of members of the House of Commons and devolved
legislatures [section 141]
If a member of the House of Commons (an MP) is detained under the Act, the
Speaker must be informed.
Patients’ correspondence [section 134]
Detained patients’ post may be withheld from them, or from the postal
operator (as the case may be), only in the circumstances described in the Act.
Including: the addressee has requested that post from the patient should be
withheld.
Correspondence not to be withheld [section 134(3)]
Under no circumstances may the managers withhold post to or from:
• a Member of either House of Parliament or a member of the National
Assembly for Wales, the Scottish Parliament or the Northern Ireland
Assembly;
• the First-tier Tribunal, the Upper Tribunal, or the Mental Health Review
Tribunal for Wales;
• the patient’s legal adviser (if legally qualified and instructed by the patient
to act on their behalf); or
• the European Commission of Human Rights or the European Court of
Human Rights.
Supervised Community Treatment
The provisions in the Act (principally sections 17A to
17G) which deal with supervised community treatment (SCT). SCT allows
certain patients to be discharged from detention by means of a community
treatment order (CTO), while remaining liable to recall to hospital for further
medical treatment if necessary.
Eligible patients [section 17A and Schedule 1]
CTOs may be made only in respect of patients who are liable to be detained in
hospital on the basis of one of the orders and directions set out in the Act.
CTOs may not be made in respect of patients detained in hospital on the basis
of an application for admission for assessment under section 2 or 4, nor in
respect of restricted patients.
Criteria for making a CTO [section 17A]
The criteria for making a CTO are that:
• the patient is suffering from mental disorder of a nature or degree which
makes it appropriate for the patient to receive medical treatment;
• it is necessary for the patient’s health or safety or for the protection of other
persons that the patient should receive such treatment;
• subject to the patient being liable to be recalled as mentioned below, such
treatment can be provided without the patient continuing to be detained in
a hospital;
• it is necessary that the responsible clinician should be able to exercise the
power under section 17E(1) to recall the patient to hospital (see paragraphs
15.30 onwards); and
• appropriate medical treatment is available for the patient.
Effect of a CTO [section 17D]
A CTO is an order for the patient’s discharge from detention in hospital,
subject to the possibility of the patient being recalled to hospital for further
medical treatment, if necessary. As with any other discharge from detention,
the patient does not necessarily have to leave hospital immediately, or may
already have done so on leave of absence.
Recall of patients to hospital [section 17E]
SCT patients may be recalled to hospital if their responsible clinician decides
that they need to receive medical treatment for their mental disorder in a
hospital and that, if they were not recalled to hospital to receive treatment,
there would be a risk of harm to their health or safety, or to other people.
Discharge of Part 2 SCT patients by their nearest relatives
Nearest relatives may discharge Part 2 SCT patients from a CTO – and
therefore from the underlying application for admission for treatment as well
– in the same way as they can discharge patients detained in hospital on the
basis of an application for admission for treatment under section 3.
A nearest relative who wishes to do this must give a written discharge order.
But before doing so, they must give the managers of the responsible hospital
not less than 72 hours notice in writing of their intention to discharge the
patient. The notice does not have to be given in any particular form.
If a responsible clinician considers that, if discharged from SCT, a patient is
likely to act in a manner dangerous to other persons or themselves, they may
make a report to that effect using Form M2 and send it to the managers of the
responsible hospital before the end of the 72 hour notice period.
The effect of such a report is to veto the nearest relative’s decision to discharge
the patient. The nearest relative may then apply to the Tribunal for the patient’s discharge.
Discharge of SCT patients by the Tribunal [Part 5]
An SCT patient may also be discharged from SCT by the First-tier Tribunal (or
Upper Tribunal on appeal).
Medical Treatment for Patients in Hospital
The meaning of “medical treatment” is not limited to what might ordinarily be considered “medical” – it also includes nursing, psychological intervention, and specialist mental health habilitation, rehabilitation and care.
Medical treatment for mental disorder means treatment for the purpose of
alleviating, or preventing a worsening of, a patient’s mental disorder, or one or
more of its symptoms or manifestations.
Treatment of detained patients without consent [section 63]
Detained patients may be given medical treatment for the mental disorder from which they are suffering without their consent, provided the treatment is given by or under the direction of the approved clinician in charge of the treatment in question
(who need not be the patient’s responsible clinician).
Treatment requiring consent and second opinion [section 57]
Any surgical operation for destroying brain tissue or the functioning of brain tissue. In other words, neurosurgery for mental disorder (sometimes called “psychosurgery”).
No-one (whether or not a detained patient) may be given a section 57
treatment for mental disorder unless all three of the following requirements
are met:
• they consent to it;
• a SOAD and two other people appointed by MHAC have certified in writing
that the patient is capable of understanding the nature, purpose and likely
effects of the treatment in question and has consented to it; and
• the SOAD also certifies in writing that it is appropriate for the treatment to
be given to the patient.
Treatment requiring consent or second opinion [sections 58]
The treatments to which section 58 applies (“section 58 treatments”) are:
medication for mental disorder if three months or more have elapsed since
medication for mental disorder was first given to the patient during an
unbroken period of compulsion (“medication after three months”).
Section 58 treatment may be given
if the patient has consented to the treatment; and
either the approved clinician in charge of it, or a SOAD, has
certified that the patient is capable of understanding the nature,
purpose and likely effects of the treatment and has consented to it;
or a SOAD has certified in writing that:
• the patient is capable of understanding the nature, purpose and
likely effects of the treatment, but has not consented to it; and
• it is appropriate for the treatment to be given;
or a SOAD has certified in writing that:
• the patient is not capable of understanding the nature, purpose
and likely effects of the treatment; and
• it is appropriate for the treatment to be given.
Treatment requiring consent and/or a second opinion [section 58A]
Section 58A applies to detained patients and to all other patients aged under 18 (whether or not they are detained) except SCT patients.
The treatments to which section 58A applies (“section 58A treatments”) are:
• electro-convulsive therapy (ECT).
Cases of urgency where sections 57, 58 and 58A do not apply –
immediately necessary treatment [section 62]
Sections 57 and 58 do not apply if the treatment in question is:
• immediately necessary to save the patient’s life;
• a treatment which is not irreversible, but which is immediately necessary to
prevent a serious deterioration of the patient’s condition;
• a treatment which is not irreversible or hazardous, but which is immediately
necessary to alleviate serious suffering by the patient; or
• a treatment which is not irreversible or hazardous, but which is immediately
necessary to prevent the patient from behaving violently or being a danger
to himself or to others, and represents the minimum interference necessary
to do so.
Medical Treatment of Supervised Community Treatment Patients
The provisions of Part 4A of the Act which apply to supervised community treatment (SCT) patients, except when they have been recalled to hospital.
Medical treatment for mental disorder may not be given (by anyone, in
any circumstances) to SCT patients who have not been recalled to hospital,
unless the requirements of Part 4A of the Act are met. (The only exception is
treatment given in accordance with section 57)
The requirements of Part 4A are of two types – authority and certification:
• In all cases, the person giving the treatment must have the authority to do so.
• In most cases, if the treatment is a section 58 or 58A type treatment
(at present, medication and electro-convulsive therapy (ECT)), the certificate
requirement must also be met.
Authority to treat – patients aged 16 or over
Whether or not the certificate requirement also applies, there must always be
authority to give the treatment.
If the patient has the capacity to consent to the treatment in question, the
patient’s own consent provides the authority for giving it.
Patients aged 16 or over have the capacity to consent unless they lack
the capacity to make the decision, as defined in the Mental Capacity
Act 2005.
Certificate requirement – SCT patients
If the treatment in question is a section 58 or 58A type treatment, then
as well as there being authority to give the treatment, it is normally necessary
for the treatment in question to have been approved by a Part 4A certificate.
A Part 4A certificate is a certificate given by a SOAD saying that it is
appropriate for one or more section 58 or section 58A type treatments to be
given to an SCT patient.
The SOAD must specify on the certificate the treatments to which it applies
and any time limits and conditions to which the approval of any or all of
those treatments is subject. The SOAD may also specify which (if any) of the
treatments approved on the certificate may be given to the patient on recall to
hospital without the need for a separate certificate under Part 4 of the Act.
Conditional Discharge
The provisions of the Act relating to the conditional discharge of restricted patients. Only restricted patients may be conditionally discharged.
The Secretary of State for Justice may conditionally discharge restricted
patients at any time, by issuing a warrant to that effect.
In certain circumstances, restricted patients must be conditionally discharged
by the Tribunal.
When conditionally discharging a patient, the Secretary of State will specify
conditions to which the patient is to be subject. The Tribunal will typically do
the same when conditionally discharging a patient (but does not have to do so).
The Secretary of State may also impose conditions on patients conditionally
discharged by the Tribunal.
In practice, these conditions will generally include a requirement for patients to
maintain contact with their mental health care team and to accept supervision
from a social worker, approved mental health professional or probation officer
(a “social supervisor”) and a psychiatrist (a “psychiatric supervisor”). They
may also, for example, include conditions requiring patients to live at a certain
place (eg accommodation that can provide a particular level of supervision or
support) or to stay away from a certain place, eg the place where the crime
which led to their detention in hospital (their “index offence”) was committed.
Recall to hospital
The Secretary of State for Justice may at any time recall a restricted patient
to hospital, if it is necessary for the protection of the public in the light of the
patient’s mental disorder.
Applications and references to the Tribunal by and in respect of recalled patients
The Secretary of State must refer the case of all recalled patients to the
Tribunal immediately, and in any case within one month of their return.
Ending of conditional discharge
Conditionally discharged patients (unless they have been recalled to hospital,
and are therefore detained again) cease to be subject to conditional discharge
– and therefore to recall to hospital – if:
• they are absolutely discharged by the Tribunal;
• the Secretary of State for Justice lifts their restrictions; or
• their restrictions expire.
The Tribunal may absolutely discharge a conditionally discharged patient at
any time.
Guardianship – general
The Act allows applications to be made for people (“patients”) to be placed
under the guardianship of a guardian. The guardian may be a local social
services authority (LSSA), or an individual (“a private guardian”), such as a
relative of the patient, who is (in effect) approved by an LSSA.
In most cases it should be possible for patients who need care, but do not
need to be in hospital, to receive that care without being subject to the control
of guardianship. However, in a minority of cases, the powers which may be
exercised by the guardian, and the structure imposed by guardianship, may
assist relatives, friends and professionals to help a mentally disordered person
manage in the community.
Powers of guardians [section 8]
Guardians have three specific powers: residence, attendance and access.
The residence power allows a guardian to require a patient to live at a
specified place. This may be used, for example, to discourage a patient from
sleeping rough or living with people who may exploit or mistreat them, or to
ensure that they reside in a particular hostel or other facility.
The attendance power lets a guardian require a patient to attend specified places
at specified times for medical treatment, occupation, education or training. Such
places might include a day centre, or a hospital, surgery or clinic, for example.
The access power entitles a guardian to require that access to the patient be
given at the place where the patient is living, to any doctor, approved mental
health professional (AMHP), or other specified person. This power could be
used, for example, to ensure that patients do not neglect themselves.
Guardianship may be used to restrict patients’ liberty (eg by determining
where they are to live) but it may not be used to deprive them of their liberty
(ie to detain them).
Tribunals
There are two tribunals which exercise functions under the
provisions of the Act in England.
First-tier Tribunal
The First-tier Tribunal is an independent judicial body established under the
Tribunals, Courts and Enforcement Act 2007. Among its many functions,
the Health, Education and Social Care (HESC) Chamber of the First-tier
Tribunal exercises powers under the Mental Health Act 1983 which, prior to
3 November 2008, belonged to the Mental Health Review Tribunal (MHRT).
Specifically, it has the power to decide whether patients should continue to be
detained under the Act, continue to be supervised community treatment (SCT)
patients or remain subject to guardianship or conditional discharge, as applicable.
The First-tier Tribunal’s powers in these cases only apply to England. There is
still an MHRT for Wales, established under section 65 of the Act.
The First-tier Tribunal does not review other people’s decisions to detain
patients or to make them subject to other forms of compulsory measures
under the Act. It decides whether, at the time of the hearing, the patient
concerned should remain subject to the relevant aspect of the Act.
In practice, cases under the Act typically involve making a balanced judgment
on a number of serious issues, such as the freedom of the individual, the
protection of the public and the best interests of the patient. Tribunal hearings
are normally in private and (for detained patients) usually take place in the
hospital where the patient is detained.
In the case of detention and SCT, the burden of proof is on those who are
detaining the patient, or keeping the patient liable to recall to hospital, to
show that such steps are still justified. Patients are not required to prove that
they should be discharged.
Upper Tribunal
The Upper Tribunal is also established under the Tribunals, Courts and
Enforcement Act 2007. Its role in mental health cases is to determine appeals
against decisions of the First-tier Tribunal. It also hears appeals against
decisions of the MHRT for Wales.
Responsible authorities
In most cases, there is a responsible authority which must provide the First-tier
Tribunal with information and reports on the patient, in accordance with the
Rules and Practice Directions.
Reviews and appeals
Appeals to the Upper Tribunal may only be made on a point of law, and only
with the permission of the First-tier Tribunal or the Upper Tribunal itself. Before
deciding whether to grant permission to appeal, the First-tier Tribunal will first
consider whether to review its own decision.
If it upholds an appeal, the Upper Tribunal may make a new decision itself,
or it may remit the case back to the First-tier Tribunal to be heard again.
Witness and information
A tribunal has the power to obtain any information it thinks necessary,
including the power to subpoena witnesses in accordance with the
relevant Rules.
Representation
Patients are entitled to be represented at tribunal hearings. Patients are equally
entitled not to have a legal representative, or to represent themselves. A legal
representative can however be very useful as they will explain the law to the
patient and protect their best interests.
Legal aid
Legal aid is available through the Community Legal Services (CLS) Fund to
fund legal advice and representation for patients before the First-tier Tribunal,
without requiring any assessment of the patients’ means. Legal aid for appeals
to the Upper Tribunal is means-tested and subject to a merits test. The CLS
Fund is the responsibility of the Legal Services Commission.
Powers of Tribunals
The circumstances in which the First-tier Tribunal (and
the Upper Tribunal on appeal) either may or must discharge patients.
Patients who are outside the remit of the Tribunal
The Tribunal does not deal with the discharge of patients who are:
• detained under the “holding powers” in section 5;
• remanded to hospital under sections 35 or 36;
• subject to an interim hospital order under section 38; or
• detained in a place of safety under sections 135 or 136.
Powers in respect of detained patients except restricted patients
The Tribunal may discharge any patient (other than a restricted patient) from
liability to detention at any time as it sees fit.
As well as having this general discretion, the Tribunal must always discharge
detained patients if the criteria in the Act are met.
Circumstances in which the Tribunal must discharge detained patients
The Tribunal must discharge the Patient if
Detained on the basis of an application for admission for assessment (section
2 or 4) the Tribunal is not satisfied that:
• the patient is then suffering from mental disorder of a
nature or degree which warrants detention in hospital for
assessment (or assessment followed by medical treatment)
for at least a limited period; or
• the patient’s detention is justified in the interests of the
patient’s own health or safety or with a view to the
protection of others.
Detained on the basis of an application for admission for treatment (section 3)
Patients subject to a hospital order, hospital direction or transfer direction
the Tribunal is not satisfied that:
• the patient is then suffering from mental disorder of a
nature or degree which makes it appropriate for the patient
to be liable to be detained in hospital for medical treatment;
• it is necessary for the health or safety of the patient or for
the protection of others that the patient should receive such
treatment;
• appropriate medical treatment is available for the patient; or
• (if the nearest relative has applied to the Tribunal because
the responsible clinician has barred discharge under section 25)
the patient, if released, would be likely to act in a manner
dangerous to others or themselves.
When discharging patients from detention (but not supervised community
treatment (SCT) or guardianship), the Tribunal may direct that the discharge will
take effect at a specified future date. This is commonly known as “deferred
discharge”. Otherwise, discharges by the Tribunal take effect immediately.
If the Tribunal decides not to discharge a patient from detention, it may
recommend that the patient be granted leave of absence or be transferred to
another hospital, with a view to facilitating the patient’s discharge on a future
occasion.
The Tribunal cannot discharge patients onto SCT, and is not required to
discharge patients absolutely from detention just because it thinks that SCT
might be appropriate for them. However, the Tribunal may recommend that
the responsible clinician considers whether to discharge a patient onto SCT.
The Tribunal’s recommendations are not binding on hospital managers
or responsible clinicians (although they must be considered). If its
recommendations are not put into practice, the Tribunal may (if it wishes)
further consider a patient’s case, without the patient or anyone else having
to make a new application.
Powers in respect of SCT patients [section 72]
The Tribunal may discharge any patient from SCT at any time as it sees fit,
even if the patient is recalled to hospital at the time.
Circumstances in which the Tribunal must discharge patients from SCT
The Tribunal must discharge SCT patients if
the Tribunal is not satisfied that:
• the patient is then suffering from mental disorder of a nature or degree that makes
it appropriate for the patient to receive medical treatment;
• it is necessary that the patient should receive such treatment for the patient’s health
or safety or for the protection of others;
• it is necessary that the responsible clinician should be able to exercise the power to
recall the patient to hospital;
• appropriate medical treatment is available for the patient; or
• (if the nearest relative has applied to the Tribunal because the responsible clinician
has barred discharge under section 25) the patient, if discharged from SCT, would
be likely to act in a manner dangerous to others or themselves.
In determining whether the responsible clinician needs to have the power of recall,
the factors that the Tribunal must consider include the same factors which the
responsible clinicians must always consider when deciding if a community treatment
order (CTO) should be made in the first place (see paragraph 15.13).
Powers in respect of guardianship patients [section 72]
The Tribunal may discharge patients from guardianship at any time as it sees fit.
The Tribunal must discharge guardianship patients if the criteria in table 21.3
are met.
Circumstances in which the Tribunal must discharge patients from
guardianship
The Tribunal must discharge guardianship patients if
the Tribunal is satisfied that:
• the patient is not then suffering from mental disorder; or
• it is not necessary that the patient should remain subject to guardianship in the
interests of the welfare of the patient or for the protection of others.
Powers in respect of patients subject to restriction orders
[section 73]
The Tribunal has no general discretion to discharge restricted patients. It may
only discharge them where it is required by the Act to do so.
The Tribunal must discharge patients who are subject to a restriction order
(other than patients who have been conditionally discharged and not recalled
to hospital) if it is not satisfied that the criteria for continued detention for
treatment under a hospital order are met.
The discharge must be conditional, unless the Tribunal is satisfied that it is not
appropriate for the patient to remain liable to be recalled to hospital for further
treatment (ie to be made subject to conditional discharge).
If the patient is to be discharged absolutely, the discharge takes effect immediately
and the patient stops being subject to both the restriction order and the
accompanying hospital order. The Tribunal cannot defer an absolute discharge.
Where the Tribunal is required to discharge a restricted patient conditionally,
it may (but does not have to) impose conditions with which the patient is to
comply. (The Secretary of State for Justice may also impose conditions and
vary those imposed by the Tribunal.)
Where the Tribunal makes a preliminary decision to order conditional
discharge, it may defer its final direction until arrangements have been made
to its satisfaction for the discharge to take effect. This is commonly known
as “deferred conditional discharge”. But case-law has established that the
Tribunal may not defer a discharge in this way to enable the patient’s progress
to be tested in the interim.
Where the Tribunal does defer conditional discharge, the primary care trust
(or local health board in Wales) and local social services authority responsible
for providing after-care under section 117 must use their best endeavours to
put in place after-care which will allow the patient to be discharged subject
to the conditions specified by the Tribunal.
If such arrangements cannot be put in place, the Tribunal may reconvene and
reconsider its decision. If it reconvenes, it may decide to vary the conditions
it had in mind to impose, make an absolute discharge if it believes the criteria
for that are now met, or decide that the conditions for neither absolute nor
conditional discharge are met and that the patient should accordingly remain
detained. It is unlawful for the Tribunal to defer conditional discharge if the
purpose of the deferment is to secure the patient’s admission to another
hospital.
Powers in respect of patients subject to limitation directions or
restriction directions [section 74]
As with other restricted patients, the Tribunal has no general discretion to
discharge patients subject to hospital and limitation directions or restricted
transfer directions.
In addition, because these patients are liable to resume serving their sentence
of imprisonment (or its equivalent) if they no longer require treatment in
hospital, special arrangements apply where the Tribunal believes that the
criteria for discharge from detention are met.
The criteria for the discharge of patients subject to these directions are the
same as those for patients subject to restricted hospital orders.
Where the Tribunal decides that such a patient would be entitled to be
discharged absolutely or conditionally if the patient were subject to a
restriction order (as described above), it must inform the Secretary of State
for Justice.
If the patient would be entitled to conditional discharge, the Tribunal may
recommend that the patient continue to be detained in hospital (rather than
going to prison or other custodial institution) if the patient is not, in fact,
discharged.
Powers in respect of conditionally discharged patients [section 75]
When considering applications by conditionally discharged patients (or
references in respect of them from the Secretary of State for Justice), the
Tribunal may discharge the restriction order, limitation direction or restriction
direction to which they are subject. If it does so, patients are automatically
discharged from the underlying hospital order, hospital direction or transfer
direction as well.
If the Tribunal decides not to discharge a conditionally discharged patient,
it may vary the conditions to which the patient is subject, or impose new
conditions.
Patients’ rights to make applications [sections 66, 69 and 70]
Applications for discharge may be made to the Tribunal by patients as set out
in the Act.
Nearest relatives’ rights to make applications [sections 66 and 69]
Applications for discharge may be made to the Tribunal by nearest relatives
of patients. Nearest relatives may not make applications in respect of restricted patients.
Displaced nearest relatives’ rights to make applications
This only applies to former nearest relatives
who are displaced on the grounds that they have unreasonably objected to
an application or have used (or were likely to use) their powers of discharge
without due regard to the welfare of the patient or the interests of the public.
Only one application per period [section 77]
Only one application may be made in any given period – but an application
which is withdrawn in accordance with the Tribunal’s Rules does not count.
The patient may apply once during
the 14 days starting with the day on which the patient is In the case of a patient who is already in hospital, the day the patient
admitted. is admitted means the day on which the application is received by
the hospital managers. For patients transferred from outside England
or Wales, it means the day on which they are treated as having been
admitted to the hospital in England or Wales.
The patient may not apply in the second 14 days of detention for
assessment. So, for example, a patient admitted on 1 January must
apply by the end of 14 January.
If a patient’s detention for assessment is extended under section 29 pending resolution of an application to the county court for the
appointment of an acting nearest relative, the Secretary of State may – and in some circumstances should – be asked to refer the
patient to the Tribunal under section 67.
Applications by patients detained for treatment under section 3 [section 66]
Applies to patients detained on the basis of an application for admission for treatment under section 3;
The right to apply begins when the new detention period begins, not when
the renewal report is made.
References to Tribunal
Hospital managers must refer certain patients to the Tribunal if six months
have passed since they were first detained (or transferred to detention from
outside England and Wales).
Hospital managers’ duty to refer certain patients to the Tribunal after three years (or one year) since their last Tribunal hearing Hospital managers must refer the cases of detained patients (unless they are
restricted patients) and SCT patients in the circumstances set out in table 23.2.
Circumstances in which hospital managers must refer patients to the Tribunal
Patient
Hospital managers must refer patients’
cases to the Tribunal if
Patients aged 18 or over
a period of more than three years has
passed without the patient’s case being
considered by the Tribunal (or the MHRT
for Wales).
Patients under 18
a period of more than one year has
passed without the patient’s case being
considered by the Tribunal (or the MHRT
for Wales).
After Care under section 117
The provisions in the Act requiring the NHS and local
authorities to provide after-care for certain patients who have been detained.
Duty to provide after-care services
Section 117 places a duty on primary care trusts (PCTs) and local social services
authorities (LSSAs) to provide after-care for certain patients who have been
detained under the Act once they leave hospital. These bodies are known
collectively as the “responsible after-care bodies”.
After-care services are not defined, but may include medical treatment,
accommodation, and day and domiciliary services (both healthcare and social
services).
The responsible after-care bodies are required to provide after-care services
“in co-operation with relevant voluntary agencies”. They may commission
services from other people and organisations as well as (or instead of)
providing services themselves.
Eligible patients
Patients eligible for section 117 after-care include all Patients detained on the basis of any Relevant section - this includes all SCT patients and all conditionally discharged patients.
After-care services during leave of absence
The courts have decided that the duty to provide after-care services also
applies to eligible patients when they are on leave of absence from hospital. Whether they actually need any after-care services during such leave will, of course, depend on the specific circumstances of the cases.
Duration of after-care services
After-care services must be provided until the responsible after-care bodies are
satisfied that the patient no longer needs them. They must be provided for as
long as an SCT patient remains an SCT patient (and may still be required even
after a patient is discharged from SCT).
No power to charge for after-care services
Because the Act provides no power to charge anyone for after-care services
provided under section 117, they must be provided free of charge.
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