Case preparation

First meeting

At the first meeting do the following:

  • Take clear instructions, ideally using a questionnaire based on the transaction criteria so that you do not forget anything important.
  • Get the correct legal aid form(s) signed, usually a CW1&2.
  • Sign a form of authority, ideally a general one which can be used to obtain benefits information (for financial eligibility), access to medical records, files from previous solicitors, etc.
  • Explain the law to the client, advise him on his legal options and what he should do (legally and practically) eventually to obtain discharge, and make clear what steps you will take on his behalf.
  • If permitted by the MHA Administrator, check the detention papers after seeing the client (see below).

Subsequent steps

The following steps will then usually need to be taken in Tribunal matters:

  • Write to the MHA Administrator/relevant department to obtain permission to access medical records; let him know the client has made a Tribunal application.
  • If relevant, write to the nearest relative or other important people in the client’s case.
  • Write to the RC or others in the treating team with any relevant queries; ask to be invited to any CPA meetings held before the MHRT hearing.
  • Obtain the reports (medical, social circumstances, and nursing), which should arrive within three weeks of the Tribunal office notifying the hospital of the application
  • Obtain directions when the reports are late.
  • Send reports to the client.
  • Consider the instruction of independent experts (medical, social work, or other); serve any favourable independent reports on the Tribunal, hospital and (in restricted cases) Ministry of Justice; consider the need for the expert to attend the hearing.
  • In restricted cases, make sure you have Ministry of Justice comments on all reports if you want to avoid an adjournment.
  • Obtain the Tribunal date and enter it in the diary.
  • View medical records once permission has been granted or copies have been received.
  • Visit client to take instructions on reports and records, preferably as they arrive.
  • Prepare for the hearing itself.
  • Advise the client in person directly after the hearing of the effects of the decision.
  • Obtain the written decision and, if necessary, visit the client to discuss it.

A similar procedure operates for HMH cases, except:

  • The MHRT office is not involved, and you cannot obtain directions for reports.
  • Remember to obtain confirmation of the benefits position if appropriate

Scrutiny of section papers

The following are examples of what you should be looking for:

  • Correct forms used
  • All forms signed
  • Check hospital name on all forms
  • If neither doctor has previous acquaintance, check AMHP explanation
  • At least one doctor must be s12 approved (s2/3)
  • No more than 5 clear days between medical examinations
  • AMHP application within 14 days of second medical recommendation
  • Admission within 14 days of AMHP application
  • Check NR identity

Some errors can be rectified (s15) but others indicate unlawful detention.

Preparation for hearing

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