Intro to mental health law

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DRAFT NOTES!

Contents

INTRODUCTION

The role of the mental health lawyer

The main role of the mental health lawyer is to represent patients at Mental Health Tribunals. Other work can include representation at hospital managers' hearings, in the Court of Protection, at Parole Board hearings and in judicial review proceedings.

A typical Mental Health Tribunal case, where the client wishes to appeal against his detention, will involve the following:

  • Being contacted by the client or a third party.
  • First visit to client to take initial instructions.
  • Reading medical records and checking section papers.
  • Viewing medical, social circumstances, and nursing reports.
  • Taking further instructions.
  • Consideration of instruction of independent experts, usually psychiatric.
  • Representation of client at Tribunal.
  • Discussion and consideration of Tribunal reasons.

See also

Ethical and conduct issues for lawyers

Key sources of information

Eventually you will know your way round all these sources of information.

  • The main piece of legislation, and explanatory documents:
  • European Convention:
  • Mental Health Tribunal:
  • Case law:
  • Psychiatric information:
See Category:Resources and Category:Organisations for further sources of information.

Brief glossary

Here are some basic terms which you'll need to know to understand at the outset.

  • RC – Responsible Clinician – the person in charge of the patient’s treatment. This is usually a consultant psychiatrist but the RC need not be a doctor.
  • AMHP - Approved Mental Health Practitioner
  • MHT - Mental Health Tribunal. This is the court, held within the hospital grounds, which considers whether the legal criteria for detention are still met, and which discharge if they are not.
  • HMH – Hospital Managers’ Hearing. This is an internal body with the power (but not so often the inclination) to discharge patients from section.
  • NR – Nearest relative. This person is defined by the MHA, using a list and various rules. This is not the same as a “next of kin”. The patient can now apply to court to have the nearest relative displaced if he is unsuitable.
  • MHA - Mental Health Act 1983
  • MCA - Mental Capacity Act 2005
  • DOLS - Deprivation of Liberty Safeguards
  • PCT - Primary Care Trust
  • LHB - Local Heath Board (Wales)
  • LSSA - Local Social Services Authority
  • Forensic psychiatry/psychiatrist – relates to patients with a criminal (forensic) history
A full Glossary is also available.

THE BEGINNING: GETTING DETAINED

Definition of mental disorder

The relevant definitions and exceptions are to be found in s1:

"mental disorder" means any disorder or disability of the mind

And:

"learning disability" means a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning.

The only full exception is that:

Dependence on alcohol or drugs is not considered to be a disorder or disability of the mind ...

In addition, for specified purposes:

a person with learning disability shall not be considered by reason of that disability to be ... suffering from mental disorder ... requiring treatment in hospital for mental disorder ... unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part.
Before the MHA 2007 amendments, s1 split mental disorder into four classifications (mental illness, psychopathic disorder, mental impairment and severe mental impairment) but this is no longer the case.

Summary of types of detention

The various detaining sections can be classified, for ease of explanation, into various types. The following show some of the more common sections, just to get used to some section numbers. They will be explained later.

(a) Civil, criminal, unrestricted, restricted

Patients can be detained under the civil sections by mental health professionals, each section having its own rules as to which type and number of professional is required.

Criminal sections are either based on a court decision or a transfer from prison to psychiatric hospital.

The Crown Court can impose special restrictions when imposing a criminal section. In practice, the main restrictions are that the Responsible Clinician must obtain the Ministry of Justice's permission for granting leave of absence from hospital, for transfer or for discharge (however, the Mental Health Tribunal can still discharge). Similar restrictions can be imposed on patients who have been transferred from prison.

In the table below, the common sections are in bold text.

Civil Criminal
Unrestricted Restricted
2, 3, 4, 5(2), 5(4), 136 35, 36, 37, 38, 43, 44, 45A, 47, 51 37/41, 45A, 47/49, 48/49

(b) Duration

Some emergency sections last for a maximum of 72 hours, and one for only 6 hours. The medium-term assessment section (s2) lasts for a maximum of 28 days. The long-term sections last indefinitely, although the unrestricted long-term sections do need to be renewed periodically.

Short term/emergency Medium term Long term
4, 5(2), 5(4), 136 2, 35, 36, 38, 43, 44, 48/49 3, 37, 37/41, 45A, 47, 47/49

(c) Informal or formal

Patients who agree, under s131, to remain in hospital are "informal" or "voluntary" patients, as they are not subject to the formal regime of the MHA.

Summary of the detaining sections

The most common sections which you will come across in practice are sections 2, 3, 37, 37/41, and 47/49. These, together with other detaining sections, are summarised briefly below. Information relating to whether or not the "consent to treatment" provisions, and relating to Tribunal eligibility, can be found elsewhere. [DRAFT NOTES]

Section 2: admission for assessment

This is a civil section for assessment (or for assessment followed by treatment). Two doctors must make the recommendation, and the application is then made by an AMHP. It lasts for a maximum of 28 days and cannot be extended. At any time during the s2, the patient can be put on s3; otherwise, detention expires at midnight on the 28th day. [To add: criteria]

Section 3: admission for treatment

This is the long-term civil section. An AMHP makes an application for admission, based on the recommendations of two medical practitioners. The initial period for which detention is authorised is six months, but it can be renewed by the RC for a further six months, then for further periods of 12 months.

The criteria for admission are set out in s3(2):

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(b) [repealed]
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
(d) appropriate medical treatment is available for him.

Section 4: emergency admission for assessment

Section 4 is used when it is of urgent necessity for the patient to be admitted and detained under section 2 (s4(2)). It is similar to s2 except:

  • Only one medical recommendation is required (as opposed to two for s2) (s4(3)).
  • It lasts for a maximum of 72 hours (as opposed to 28 days).
  • The applicant (usually AMHP) must have seen the patient in the previous 24 hours (rather than 14 days) (s4(5)) and certify that getting the second doctor would "involve undesirable delay" (s4(2)).

A second medical opinion should be sought as soon as possible. A second medical recommendation converts s4 to a s2 (s4(4)) which is treated as beginning when the s4 began.

Section 5: holding powers

This includes two separate powers:

  • Doctor: One doctor; when inpatient; 72 hours. Criteria.
  • Nurse: One nurse of specified level; when inpatient; 6 hours. Criteria.

Section 7: guardianship

This is not a detaining section but is included here for ease of reference. A person may be made subject to guardianship if (s7(2)):

(a) he is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this section; and
(b) it is necessary in the interests of the welfare of the patient or for the protection at other persons that the patient should be so received.

The guardian may be either a local social services authority or any other person. His powers are (s8(1)):

(a) the power to require the patient to reside at a place specified by the authority or person named as guardian;
(b) the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training;
(c) the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, approved mental health professional or other person so specified.

A guardianship residence requirement could amount to a deprivation of liberty (as defined in JE v DE and Surrey County Council (2006) EWHC 3459 (Fam): the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses) but government policy is that guardianship cannot be used to authorise a deprivation of liberty.

Section 37: hospital order

Either the Crown Court or magistrates court can impose a hospital order. It is usually given after conviction. The effect is largely the same as an admission under s3.

Section 37/41: hospital order with restrictions

The restrictions under section 41 may be given only by the Crown Court, and if "it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm": s41(1). It is the harm which must be serious rather than just the risk of harm.

The main effects of the restrictions, which are set out in s41(3), are as follows:

  • The section need not be renewed at the usual periods: it continues indefinitely until discharged.
  • Only the patient can apply to the Tribunal (not the nearest relative).
  • The Justice Minister's consent is required for (a) s17 leave of absence, (b) s19 transfer, or (c) s23 discharge.
  • If the patient goes AWOL the ability to return him is indefinite.

Also, the types of discharge available are different: either a conditional (where the patient is liable to be recalled), or an absolute discharge, is possible under s73. Almost invariably a patient's discharge from hospital will be conditional, but he may seek an absolute discharge from the MoJ or MHT at a later date.

Section 38: interim hospital order

An interim hospital order is a temporary hospital order made under s38 in the case of person convicted of an imprisonable offence other than murder, where there is evidence that it may be appropriate for a hospital order under s37 to be made.

It can last for a maximum initial period of 12 weeks, and can be extended 28 days at a time up to a maximum of 12 months. The section cannot be ended except by the court and so there is no right of application to the Tribunal.

Section 47: transfer direction (from prison)

A prisoner can be transferred to hospital under s47. Under s47(3) he will be treated as if subject to a s37 hospital order - so s47 on its own is often informally called a "notional s37". A patient subject only to s47 cannot be transferred back to prison under the MHA.

Section 47/49: transfer with restrictions

A "restriction direction" under s49 made alongside a transfer direction is given in nearly all cases when moving a prisoner to hospital. The restrictions cease on the prisoner's release date, and then the patient is treated as if he had been detained under s47 on that date.

If a prisoner is very near his release date then the s49 restriction direction might not be given, as it would soon cease to have effect anyway.

The restriction direction has the same effect as a restriction order and means the patient becomes a restricted patient.

Section 45A: restriction direction

This is an order which the Crown Court can make at the same time as imposing a prison sentence (except where the sentence is fixed by law, i.e. murder) upon an offender who suffers from mental disorder: s45A(1),(2). A "limitation direction" must also be given: s45A(3).

A hospital direction has the same effect as a transfer direction under s47; a limitation direction has the same effect as a restriction direction under s49.

The sentenced person goes straight to hospital but is treated as if he had been transferred to hospital from prison under s47/49. Before the end of the sentence he can be transferred "back" to prison to serve the remainder of the sentence.

At his release date the restrictions cease; however, for convenience, in these notes s45A patients are always treated as restricted.

Notional s37

The term "notional s37" is not mentioned in the statute, but is a often used informally in the following cases:

  • Where he was transferred under s47/49 but, on the release date, the restriction direction has ceased to have effect, he will be left with the s47 on its own and the notional s37 begins when the restrictions cease.
  • Where he is subject to s45A but the release date has passed, as for s47/49 patients.
  • The admission order under the old CPIA 1964 s5 is sometimes also called a notional 37.

Generally, therefore, the term refers to a s47 patient who is notionally treated as if subject to a hospital order under s37.

A patient subject to a notional s37 (except those under an admission order) can apply to the Tribunal in the first six months. Those subject to a real s37 cannot. The difference is said to be because the latter have had their case considered by a court, whereas the former are under their current status because of an administrative action or the passage of time.

Other sections

Other sections include:

  • Section 35 (remand for report). The Crown Court or a magistrates’ court may remand an accused person to a hospital specified by the court for a report on his mental condition. [Etc.]
  • Section 36 (remand for treatment). The Crown Court may, instead of remanding an accused person in custody, remand him to a hospital if the criteria in this section are met. [Etc.]
  • Section 43 (committal by magistrates for restriction order (to custody rather than to hospital). If the magistrates feel that a restriction order is necessary they may, if the criteria in this section are met, commit him in custody to the Crown Court to be dealt with in respect of the offence. [Etc.]
  • Section 44 (committal by magistrates to hospital under s43). The magistrates may, if the criteria in this section are met, order that the patient be admitted to hospital rather than custody. [Etc.]
  • Section 51(5). Hospital order without conviction====
  • Section 136 (mentally disordered persons found in public places). This section allows a constable to remove an apparently mentally disordered person from a public place ("a place to which the public have access") to a place of safety for up to 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an AMHP and of making any necessary arrangements for his treatment or care. The place of safety could be a police station or hospital (often a special s136 suite).

THE MIDDLE: WHILE DETAINED

Insert: Consent to treatment provisions - Part 4. Put Part 4A with CTO stuff.

Ministry of Justice involvement in restricted cases

The Department of Constitutional Affairs was, in May 2007, renamed the Ministry of Justice and took over, amongst other things, the Home Office's Mental Health Unit. In November 2009 the Mental Health Unit became the Mental Health Casework Section; along with the Public Protection Casework Section and other sections, it is now part of the Public Protection and Mental Health Group.

The London-based Mental Health Casework Section is responsible for carrying out the Justice Secretary's functions under Part 3 of the Mental Health Act 1983 and the Criminal Procedures Legislation. It is only concerned with restricted patients.

Decisions are made by civil servants (caseworkers and their supervisors). An idea of how they operate can be obtained from reading one of their "bulletins" (see Ministry of Justice#External links). In general they make their decisions having considered written reports received from the treating team and/or recommendations from the Mental Health Review Tribunal, and very occasionally a caseworker might attend a hospital meeting.

The following actions require the Secretary of State's consent:

  • Leave of absence under s17. Note that permission is not required for hospital ground leave unless a specific hospital unit/ward has been specified in the hospital order (or equivalent) which led to the admission: see Power to specify hospital units for details.
  • Transfer to another hospital under s19.
  • Discharge from section under s23 (although the MHT are empowered to discharge without his consent).

The following are some of the Secretary of State's powers:

  • To remove the restrictions (s42(1)), leaving the patient as if he had been made an unrestricted patient on the date the restrictions ceased (s41(5)).
  • To grant either a conditional discharge or an absolute discharge (s42(2)).
  • To recall a conditionally discharged patient to hospital so that he becomes a restricted patient once again (s42(3)).
  • To transfer a serving prisoner from prison to a hospital (s47), with or without restrictions (s49), and to transfer him back to prison when appropriate.

External resources

  • MoJ/MHT protocol - marked "April 2009" but last edited in July 2009. This document sets out the responsibilities of the MoJ and MHT in the Tribunal procedure. For instance, the protocol provides that no MoJ comments are required in the following circumstances: (1) for initial reports, the MoJ have had the reports for 21 days; (2) for subsequent reports, including addendum and independent reports, the MoJ have received the reports at all.
  • MHCS Newsletter 29/4/10 - deals with absolute discharge and the transfer to hospital of prisoners who are close to the end of their sentence

Leave of absence

Under s17, the RC can allow a detained patient out of hospital temporarily on leave of absence. He can attach conditions on the leave, e.g. that it must be escorted rather than unescorted, or that it is limited to a certain area. The leave can be short-term (e.g. 1 hour) or longer-term (e.g. 2 weeks). The RC can have the patient recalled to hospital under if necessary (see s17(4), also s18).

The Justice Secretary's consent is required for leave to be granted to restricted patients. He can effectively impose conditions by stating upon what conditions the permission is granted. Either the RC or the Justice Secretary can recall the patient.

If a particular hospital unit was specified when the patient was admitted then MoJ permission is required for s17 leave beyond the confines of that unit. Otherwise, the RC can informally give leave within the hospital grounds without using s17 at all. See Power to specify hospital units.

External links

From Ministry of Justice Mental Health Unit website:

From MoJ website:

Transfer

Patients can be transferred between hospitals under s19.

The Justice Secretary's consent is required before restricted patients can be transferred.

See Power to specify hospital units.

External links

From Ministry of Justice website:

Insert: Levels of security

THE END: DISCHARGE

Summary of routes to discharge

The following five bodies can discharge a patient, depending on which section the patient is detained under. Some of the most common sections are included in the table below. In addition, there are some court-imposed sections from which only the court can discharge.

Unrestricted (s2, s3, s37, s47) Restricted (s37/41, s47/49, s45A)
Tribunal Absolute discharge, or deferred to future date Absolute discharge, conditional discharge, or deferred conditional discharge
HMH Discharge MoJ permission required (unheard of?)
RC Discharge MoJ permission required (does happen)
NR s2 and 3: can discharge patient unless RC certifies patient likely to act dangerously to self or others. s37, s47: can only apply to Tribunal Irrelevant - restricted patients do not have nearest relatives
MoJ Irrelevant Absolute or conditional discharge

Summary of types of discharge

The type of discharge available depends on the section under which the patient is detained. The following table summaries the position in relation to the most common sections.

Section Criteria Types of discharge
s2 s72(1)(a)
  • (Full) discharge
  • Deferred discharge (to future date)
  • Statutory ecommendation re leave or transfer (can reconvene)
s3, s37, s47 s72(1)(b)
  • (Full) discharge
  • Deferred discharge (to future date)
  • Statutory recommendation re leave or transfer or CTO (can reconvene)
s37/41 s73
  • Absolute discharge
  • Conditional discharge
  • Deferred conditional discharge (until conditions can be met)
  • Extra-statutory (informal) recommendation (can't reconvene)
s47/49 s74
  • Notification that would be entitled to absolute or conditional discharge
  • Notification that (if entitled to C/D) should remain in hospital rather than prison
  • Extra-statutory (informal) recommendation (can't reconvene)
Already
conditionally
discharged 		s75
  • Absolute discharge
  • Variation of conditions

Full discharge of unrestricted patient

Under s72, the Tribunal can discharge unrestricted patients completely, with no conditions or liability to be recalled. The discharge can be deferred to a future date.

Deferred discharge of unrestricted patient

A Tribunal may defer the discharge of an unrestricted patient to a future date (s72(3)), for example when time is needed to finalise after-care arrangements. This should not be confused with a deferred conditional discharge in restricted cases (where the deferral is not to a specified date, but is until the conditions can be satisfied).

Absolute discharge

This type of discharge only applies to restricted patients, whose discharge can only be granted by the Tribunal or, less commonly, the Ministry of Justice.

Absolute discharge of detained patient by Tribunal

An absolute discharge must be granted where:

  • The 's3' criteria for detention are no longer met (i.e. nature/degree/health/safety/others). See s72(1)(b).
  • It is not appropriate for the patient to remain liable to be recalled to hospital for further treatment. See s73(1)(b).

As the onus is on the detaining authority to satisfy the Tribunal of the former consideration, the actual wording of the Act is slightly more convoluted. See R (H) v MHRT North & East London Region (2001) EWCA Civ 415 and the subsequent Mental Health Act 1983 (Remedial) Order 2001 for the history of this.

If liability to be recalled is appropriate, a conditional discharge must be granted instead. There is no general discretion in relation to discharge in restricted cases.

It is extremely rare to obtain an absolute discharge straight out of hospital. Following Reid v Secretary of State for Scotland (1998) UKHL 43 it was possible to obtain absolute discharge for untreatable psychopathic disorder on the grounds that if it is untreatable, the patient should not be liable to be recalled for 'treatment'. However, other caselaw suggests that conditional discharge may also be appropriate even if there is no mental disorder at all: for example Johnston v UK and R (SSHD) v MHRT, re BR (2005) EWHC 2468 (Admin). If the logic in these cases is to help settle someone safely into the community, then perhaps there should be some time limit on the conditional discharge, but there is no provision for this.

Absolute discharge of conditionally discharged patient by Tribunal

A conditionally discharged patient can make an application to the Tribunal for an absolute discharge.

s75 applies to the Tribunal's considerations. The section does not contain any criteria for the Tribunal to consider, so they have an unfettered discretion. See R (SC) v MHRT (2005) EWHC 17 (Admin), an unsuccessful challenge to the lack of criteria, and for some useful comments on what a Tribunal might consider. See also RH v South London and Maudsley NHS Foundation Trust (2010) UKUT 32 (AAC).

No application may be made to the Tribunal in the first year after the conditional discharge, but one may be made in the next year, and in each two-year period thereafter.

If the restriction order was time-limited then the restrictions will cease at the specified time. If a patient has been conditionally discharged by the time the restrictions cease, then he is automatically absolutely discharged on that date: s42(5)

Discharge by Ministry of Justice

The Justice Secretary can discharge under s42(2) either absolutely or conditionally. No criteria are set out - the Act says "if he thinks fit" - though obviously similar considerations would apply. A Ministry of Justice discharge would follow a recommendation from the patient's RC, but such discharges are rare. Their policy (found in their 18/3/09 Guidance for Clinical Supervisors, and Guidance for Social Supervisors, documents) states:

MHU’s policy is that we will not grant absolute discharge unless it is clear that the restrictions are no longer required to ensure the patient’s safe management. This means that the Secretary of State will not grant absolute discharge where the patient still has a mental disorder, and has the potential to be a risk to others if not well supervised in the future, and where future supervision is not guaranteed.

Conditional discharge

This type of discharge only applies to restricted patients, whose discharge can only be granted by the Tribunal or, less commonly, the Ministry of Justice.

Discharge by Tribunal

A conditional discharge must be granted where:

  • The 's3' criteria for detention are no longer met (i.e. nature/degree/health/safety/others). See s72(1)(b).
  • It is appropriate for the patient to remain liable to be recalled to hospital for further treatment. See s73(1)(b).

As the onus is on the detaining authority to satisfy the Tribunal of the former consideration, the actual wording of the Act is slighly more convoluted. See R (H) v MHRT North & East London Region (2001) EWCA Civ 415 and the subsequent Mental Health Act 1983 (Remedial) Order 2001.

If liability to be recalled is not appropriate, an absolute discharge must be granted instead. There is no general discretion in relation to discharge in restricted cases.

Discharge by Ministry of Justice

The Justice Secretary can discharge under s42(2) either absolutely or conditionally. No criteria are set out - the Act says "if he thinks fit" - though obiously similar considerations would apply. A Ministry of Justice discharge would follow a recommendation from the patient's RC, but such discharges are relatively rare.

The conditions

Invariably, conditions are imposed on the patient at the time of discharge (Under s73(4)(b) by the MHRT or under s42(2) by the Ministry of Justice).

Usual conditions include the following, depending on the nature of the case:

  • Residence at a particular address, or "as directed by the RMO".
  • Co-operation with supervision by a community RMO and a social supervisor.

Other conditions often imposed include:

  • Abstinence from illegal drugs and excessive consumption of alcohol
  • Urine drug screens
  • Compliance with treatment (albeit on a voluntary basis: see R (SH) v MHRT (2007) EWHC 884 (Admin))
  • Exclusion zones
  • Not to contact victim or victim's family

Deferral

The Tribunal can order that the conditional discharge be deferred until the conditions can be met. See deferred conditional discharge for further details.

Recall

In theory a conditionally discharged patient cannot be recalled simply for breaching a condition (contrast the position of a prisoner out on licence) as, unless in an emergency, there should be up-to-date medical evidence of mental disorder to justify recall. In practice if the RC informed the Ministry of Justice that the patient had breached his conditions and/or that there are concerns about his mental health, the Ministry of Justice would probably recall.

As a statutory safeguard for the patient, within a month of the return to hospital the case must be referred to the MHRT by the Ministry of Justice (s75). This must be done with "reasonable despatch having regard to all the material circumstances" (R (Rayner) v Secretary of State for Justice (2008) EWCA Civ 176). The hearing must be heard between 5 and 8 weeks from the reference (Tribunal rule 37).

See Eligibility periods for entitlement to apply to the Tribunal. See Recall for further details.

Subsequently obtaining an absolute discharge

If the restriction order was time-limited, then the restrictions will cease at the specified time; also, if the patient has determinate sentence, then the restrictions will cease on the release date. If a patient has been conditionally discharged by the time the restrictions cease, then he is automatically absolutely discharged on that date: s42(5)

Any conditionally-discharged patient can apply to the Tribunal for an absolute discharge - not during the first twelve months after conditional discharge; but once in the second 12-month period after conditional discharge; and once in each 2-year period thereafter. The Tribunal could also vary or add to the conditions: s75(2),(3)

External links

From Ministry of Justice website:

Deferred conditional discharge

The Tribunal can order that a conditional discharge be deferred until the conditions can be met. They cannot defer to a specific future date (unlike a deferred discharge in unrestricted cases).

They can reconvene after a period, and reconsider the case afresh if it has been impossible to give effect to the conditional discharge: R (IH) v SSHD (2003) UKHL 59.

See MHA 1983 s73(7) for further details.

Discharge of transferred prisoners

Transferred prisoners not subject to restrictions are discharged into the community, whereas those subject to conditions are generally not discharged from detention until (whichever is appropriate) their case has been considered by the Parole Board, or their sentence expires having been remitted to prison.

Transfer without restrictions

These patients are said to be subject to a "notional s37", which is not a term used in the Act. A patient can be subject to a notional s37 in the following cases:

  • Where he is transferred under s47 but without a restriction direction under s49. See s47(3).
  • Where he was transferred under s47/49 but the restriction direction has ceased to have effect, he will be left with the s47 on its own and the notional s37 begins when the restrictions cease.
  • The same applies where he was given a prison sentence and a hospital direction/limitation direction under s45A and subsequently the limitation direction ceases to have effect.

Essentially, therefore, the term refers to a patient who is notionally treated as if subject to a hospital order under s37.

They can be discharged into the community by:

Although they will be released into the community from hospital, their sentence continues after transfer as if they had been released from prison (as does any licence period, during which they can be recalled), if R (Miah) v SSHD (2004) EWHC 2569 (Admin) was correctly decided.

Transfer with restrictions

These patients are subject to one of the following:

  • s47 with a restriction direction under s49, i.e. a restricted transfer direction under "s47/49"; or
  • s48, which usually must come with a s49 restriction direction - "s48/49";
  • A s45A hospital direction while the limitation direction is in force - "s45A".

The Ministry of Justice can remit the patient to prison or release him (s50(1)), or absolutely/conditionally discharge him (s42(2)), at any time.

The Mental Health Tribunal cannot discharge but can make recommendations under s74. They ask the following questions:

Q1. Would the patient, if subject to a hospital/restriction order, be entitled to be absolutely or conditionally discharged by the Tribunal?
Q2. If the patient would have been conditionally discharged, should he continue to be detained in hospital rather than being remitted to prison?

If the answer to Q1 is No, then the patient remains in hospital under the MHA as before.

If the answer to Q1 is Yes then there are various possibilities:

  • For s47/49 and s45A patients only - the patient could be discharged by the Tribunal if the MoJ consents to this within 90 days (s74(2)). This never happens in practice unless the patient is a technical lifer: the 90-day period is therefore mainly "historic" (MoJ, personal correspondence). This ability to discharge does not apply to s48/49 patients (s74(4)).
  • If the answer to Q2 is No (or if Q2 does not apply), then the patient - unless discharged as above - will be remitted to prison (as he no longer requires detention for unsoundness of mind). A determinate sentence prisoner would then be released at the usual time; prisoners would have access to the Parole Board if relevant. The MHA ceases to have effect on return to prison.
  • If the answer to Q2 is also Yes then the patient - unless discharged as above - remains in hospital but will have access to the Parole Board in the same way as if he had been remitted to prison (s74(5A)) and can be released on licence directly from hospital. In the case of lifers, MoJ policy is, where relevant, automatically to refer the case to the PB. Determinate sentence prisoners will become subject to notional s37 on expiry of the restrictions (earliest day of release) although they really ought then to be released. The MHA ceases to have effect on release.
The Tribunal considers detention under Article 5(1)(e) (unsoundness of mind) whereas the PB considers detention under Article 5(1)(a) (conviction by court). See R (P) v SSHD (2003) EWHC 2953 (Admin) (the ECHR does not require joint MHRT/Parole Board hearings; the need for consecutive hearings does not breach Article 5(4)).

Hospital Managers' Hearing

Hospital managers are very similar to Tribunals, with some differences:

  • There are almost invariably three people on the panel.
  • Decisions must be taken by a majority comprising at least three people. In practice, panels almost invariably consist of three members so they must be unanimous. By contrast, Tribunals can make majority decisions to discharge.
  • There is no legal or medical member on the panel, and they are generally less willing to discharge patients.
  • As there is no medical member, there is no medical examination before the hearing.
  • In practice they have the power to discharge unrestricted patients only (because the MoJ must consent to their discharge of restricted patients).
  • They are organised by the hospital MHA Administrator, whereas Tribunals are organised by the Tribunal secretariat in Leicester.
  • Rather than granting deferred discharged they tend to adjourn for a further hearing.
  • There are no eligibility periods: an application can be made at any time.

According to the Code of Practice 2008:

31.11 Hospital managers:

  • may undertake a review of whether or not a patient should be discharged at any time at their discretion;
  • must undertake a review if the patient’s responsible clinician submits to them a report under section 20 of the Act renewing detention or under section 20A extending SCT;
  • should consider holding a review when they receive a request from (or on behalf of) a patient; and
  • should consider holding a review when the responsible clinician makes a report to them under section 25 barring an order by the nearest relative to discharge a patient.

31.12 In the last two cases, when deciding whether to consider the case, managers’ panels are entitled to take into account whether the Tribunal has recently considered the patient’s case or is due to do so in the near future.

The managers' unfettered power to discharge is contained in s23; guidance on procedure and discharge criteria can be found in Code of Practice chapter 31.

AFTERCARE

After-care

Section 117 places a joint duty on the PCT (or LHB in Wales) and LSSA to provide, in co-operation with relevant voluntary agencies, after-care services for certain classes of detained patient.

It applies to patients who were detained under s3, s37, s37/41, s45A, s47, s47/49, s48/49. It begins when they cease to be detained and (whether or not immediately after so ceasing) leave hospital. The duty continues until the PCT and LSSA are satisfied that such services are no longer required. This decision cannot be made during the continuance of a CTO. The bodies with the duties are those in which the person concerned is resident or (if he was not resident anywhere) to which he is sent on discharge by the hospital in which he was detained.

No charge can be made for after-care provided under s117. If charges have been made then they can be claimed back. This can be a benefit of being in hospital as a detained patient.

OTHER PROVISIONS

Insert: Interface between MHA and MCA. Can restrain under MCA. If amounts to deprivation of liberty then can be lawful under DOLS, which can overlap with MHA. Which to apply. Primacy of MHA etc. Take info from: Mental Capacity Act 2005 and DOLS.

Community Treatment Order

Community Treatment Orders were introduced in November 2008, by new sections 17A-G being inserted into the Mental Health Act 1983 by the Mental Health Act 2007. In the Code of Practice it is called Supervised Community Treatment; in the Act those subject to CTOs are called community patients.

The nearest equivalent in the past was supervised discharge (after-care under supervision) under s25A-J. These provisions were repealed when CTOs were introduced. Transitional provisions provided that, during the subsequent six months, patients subject to after-care under supervision were to be assessed and the patient placed under s2, s3, guardianship, or a CTO, or discharged altogether. The relevant commencement order was Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008.

For further information on CTOs, see Reference Guide chapter 15 (Supervised Community Treatment) and Code of Practice chapters 25 (Supervised community treatment) and 28 (Guardianship, leave of absence or SCT?).

Granting a CTO

A CTO is an option for s3 and unrestricted criminal patients (hospital order, transfer direction, or hospital direction).

Longer-term leave of absence may not be granted to a patient unless the responsible clinician first considers whether the patient should be discharged on a CTO (s17(2A)). Longer-term leave is defined as more than seven consecutive days, or an extension which would make the total period more than seven consecutive days (s17(2B)).

The criteria of which the RC must be satisfied are found in s17A(5):

(a) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment;
(b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;
(c) subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;
(d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital; and
(e) appropriate medical treatment is available for him.

An AMHP must certify in writing that he agrees the criteria are met and that it is appropriate to make the CTO (s17A(4)). The process can be seen in the relevant statutory form: Form CTO1 section 17A - community treatment order.

The time periods for a CTO are the same as for detention under s3. It lasts initially for a maximum of six months, but can be renewed for a further six months and thereafter can be renewed for 12-month periods (s17C, s20A(3)).

There are two mandatory conditions (s17B(3)):

(a) a condition that the patient make himself available for examination under section 20A below; and
(b) a condition that, if it is proposed to give a certificate under Part 4A of this Act in his case, he make himself available for examination so as to enable the certificate to be given.

The first mandatory conditions relates to renewal of the CTO; the second to assessment for a SOAD certificate.

Other discretionary conditions can be specified if the RC and AMHP agree that they are necessary or appropriate for one or more of the following purposes (s17B(2)):

(a) ensuring that the patient receives medical treatment;
(b) preventing risk of harm to the patient's health or safety;
(c) protecting other persons.

The consent to treatment provisions which apply during the CTO are found in Part 4A (s64A-K). For details, see Reference Guide chapter 17 (Medical treatment of Supervised Community Treatment patients (Part 4A)) and Code of Practice chapters 23 (Medical treatment under the Act) and 24 (Treatments subject to special rules and procedures).

Recall and revocation

Once a CTO is in place, the following actions can be taken:

  • The patient can be recalled to hospital temporarily for assessment;
  • Once recalled, the CTO can be revoked, which resurrects the detention;
  • Alternatively, once recalled, the patient can be released back onto the CTO;
  • The patient can be discharged from the CTO at any time.

The RC can recall the patient if he breaches a mandatory condition (s17E(2)) or if in his opinion (s17E(1)):

(a) the patient requires medical treatment in hospital for his mental disorder; and
(b) there would be a risk of harm to the health or safety of the patient or to other persons if the patient were not recalled to hospital for that purpose.

Breach of a discretionary condition is just a factor which will be taken into account when considering the criteria above.

Recall permits detention in hospital for a maximum of 72 hours (s17F(6)) during which it must be decided whether to revoke the CTO or release the patient back onto the CTO.

The CTO can then be revoked if (a) the RC believes the s3 admission criteria are met, and (b) an AMHP agrees with that opinion and thinks revocation is appropriate (s17F(4)).

The underlying authority for detention lies dormant for the duration of the CTO (s17D) and is resurrected by revocation (17G). However, for calculation of renewal dates and eligibility periods, the detention is treated as having begun on the day of revocation (s17G(5)).

Appeals and references

A community patient can apply for a Mental Health Tribunal hearing during the first six months (s66(1)(ca)) and during each period of extension (s66(1)(fza) and (faa)). If the CTO is revoked, the patient can apply to the Tribunal during the first six months of detention (s66(1)(cb)) and during each period for which the detention is renewed (s66(1)(f)).

If an application is made by the patient while detained but he subsequently is placed on a CTO, the application does not lapse but Tribunal proceedings continue, and this does not affect any other entitlement to apply to the Tribunal: AA v Cheshire and Wirral Partnership NHS Foundation Trust (2009) UKUT 195 (AAC). The same logic should apply in reverse, i.e. when the patient applies on the CTO but it is subsequently revoked.

A community patient can also appeal to the hospital managers at any time. The managers of the responsible hospital can discharge the CTO (s23(2)(c)). The "responsible hospital" is the hospital in which he was liable to be detained immediately before the community treatment order was made, subject to section 19A (Regulations as to assignment of responsibility for community patients) (s17A(7)).

Also under s23(2)(c) the RC can discharge at any time, as can the nearest relative, although this latter power is subject to the same dangerousness considerations as for discharge from detention (s25).

Automatic references must be made by the managers of the responsible hospital at certain times:

  • As soon as possible after revocation of the CTO (s68(7)).
  • Six months after the beginning of the s3 admission, or any immediately previous s2 admission, if there has been no Tribunal application or reference (discounting any made during the s2) (s68(2)). For details see the separate section on automatic references.
  • Three years after the last consideration of the case by the Tribunal (or one year if the patient is not yet 18 years old) (s68(8)).
  • There is no power to make a reference to be made when a patient subject to after-care under supervision is placed on a CTO under the transitional provisions. This point is currently the subject of an appeal to the Upper Tribunal.
  • The SoS for Health has the power to refer at any time (s67).

See also

The following page explains the introduction of CTOs, and contains some external links:

Nearest relative

Set out below are the powers available to a patient's nearest relative, the rules relating to identifying who is the nearest relative, and the procedures for changing the person who is the nearest relative. Finally, the changes made by the MHA 2007 are listed.

NR powers

Right to object to s3 admission

The AMHP must consult the person (if any) appearing to be the NR before making an application for admission under s3 - unless "such consultation is not reasonably practicable or would involve unreasonable delay" - and the s3 cannot go ahead if the NR objects (s11(4)). An objection perceived to be unreasonable could lead to displacement proceedings under s29(3)(c).

Right to request discharge of s2 or s3

Under s23(2) the NR has the power to "order" discharge from s2 or s3; however, this right is qualified by the provisions of s25.

The NR must give the hospital managers 72 hours' notice of his intention to discharge the patient. He can use a form (see Mental Health Regulations) or write a letter. It should sent to the MHA administrator.

Within those 72 hours the RC has the power to prevent discharge by issuing a barring certificate/barring order - he must certify that "the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself/herself". This is the only basis for preventing discharge.

Another consequence of a barring order - in s3 cases only - is the NR's right to apply to the MHRT for discharge (s66(1)(g) and (2)(d)) within 28 days of being informed of the barring order. The Tribunal must discharge if not satisfied of the dangerousness criterion (s72(1)(b)(iii)).

If the discharge is barred, that NR cannot order discharge again for 6 months from the date of the barring order.

Finally, if it is perceived that the NR has exercised his right to request discharge "without due regard to the welfare of the patient or the interests of the public... or is likely to do so" then this may lead to displacement proceedings under s29(3)(d).

Applications to Tribunal

The NR can apply to the Tribunal in hospital order cases, and following a barring certificate being issued.

Identification of nearest relative

Order of precedence

MHA 1983 s26 dictates the identity of the patient's nearest relative. Subject to the rules in that section, the NR is the first living person mentioned in the following list:

(a) husband or wife or civil partner; or where there is no marriage or civil partnership, or the husband/wife/civil partner is disqualified (see below), any person who has lived with the patient as husband/wife/civil partner for six months (s26(6);
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(e) grandparent;
(f) grandchild;
(g) uncle or aunt;
(h) nephew or niece;
(i) any person, other than a relative, with whom the patient has ordinarily resided for at least 5 years (s26(7))

Who belongs in each category

  • "In deducing relationships for the purposes of this section, any relationship of the half-blood shall be treated as a relationship of the whole blood" (s26(2))
"One person is said to be of the whole blood to another when they are both descended from the same pair of ancestors, e.g. two brothers who have the same parents. Persons are said to be of the half blood to one another when they are descended from one common ancestor only e.g. two brothers who have the same father but different mothers." (Osborn's Concise Law Dictionary 8ed)
  • "an illegitimate person shall be treated as the legitimate child of (a) his mother, and (b) if his father has parental responsibility for him within the meaning of section 3 of the Children Act 1989, his father" (s26(2)

Higher priority cases

  • Where more than one relative survives within each category above, relatives of the whole blood are preferred to those of the half-blood, and the elder/eldest are preferred. (s26(3)
  • Where the patient ordinarily resides with or is cared for by one or more of his relatives (or did/was before admission), those relatives are preferred. If more than one such relative exists, the NR is chosen according to the previous paragraph. (s26(4))

Disqualified persons

  • Certain people are disqualified from being the NR (s26(5)):
(a) anyone not ordinarily resident in the UK, Channel Islands or Isle of Man - unless the patient is not so resident either
(b) a husband or wife if there has been a permanent separation or desertion.
(c) anyone under 18 years of age, except the husband, wife, father or mother of the patient

Changing the nearest relative

Displacement

The nearest relative, AMHP, and others, can apply to the county court to displace the nearest relative on various grounds, including the ground that the NR is unsuitable.

Delegation

Under regulation 24 the nearest relative can delegate in writing the exercise of his functions to any other person except those disqualified and can similarly revoke such authority. The following must be notified:

(a) the person authorised;
(b) in the case of a patient liable to be detained in a hospital, the managers of that hospital;
(c) in the case of a patient subject to guardianship, the responsible local social services authority and to the private guardian, if any.
(d) in the case of a community patient, the managers of the responsible hospital.

Changes made by MHA 2007

The following changes made by the Mental Health Act 2007 are relevant:

Recommended book

Nearest_Relative_Handbook_2ed.jpg

Children and mental health law

The mental health legislation sometimes applies differently to children.

See also

Related Mental Health Act 2007 amendments:

External links

From DH website:

  • Improving access to child and adolescent mental health services - 4/8/09 - "This joint DH/DCSF guide states how the 18 weeks referral to treatment standard, (NHS Operating Framework for 2009/10) applies to non-emergency consultant-led CAMHS services and pathways. This guide does not set any new standards or targets. It shows how accessible low-wait CAMHS can be achieved and provides good practice examples."

From Dept for Children, Schools and Familes website:

The CSIP website is dead but the following documents were taken from there:

  • [www.rethink.org/document.rm?id=7666 The Mental Health Act: Essential information for parents and carers] - published by Rethink/NIMHE, February 2009 (Rethink website)

Links taken from CSIP website:

Ofsted:

The ECHR and mental health law

The following are the ECHR Articles most relevant to mental health law:

The Human Rights Act 1998 obliges UK courts and public authorities to act consistently with Convention rights. Under s2 HRA, UK courts must take into account ECHR decisions. Under s3 HRA, legislation must be read and given effect in a way which is compatible with the Convention rights. Under s4, if a provision of primary legislation is incompatible with a Convention right then the court will make a "declaration of incompatibility". [ETC.]

The following cases led to declarations of incompatibility:

CONDUCT

Ethical and conduct issues for lawyers

These are draft notes.

Sources of information

There are various sources of assistance:

  • All solicitors must abide by the Solicitors Regulation Authority Solicitors' Code of Conduct 2007;[1] barristers and legal executives must abide by the rules of their professional bodies.
  • The Solicitors Regulation Authority operate a Professional Ethics helpline which is available on 0870 606 2577 from 9am to 5pm on weekdays. If you have any ethical dilemmas it is wise to call them and keep a detailed attendance note of the conversation on the file.
  • The Mental Health Lawyers Association have published a Code of Conduct for Representatives[3] which members must follow.
  • Some hospitals and Trusts have also published their own codes of conduct.

Common issues

Common issues include: (1) confidentiality, and when breaching the client's confidentiality is permissible; (2) capacity, and what action to take in the client's best interests if the client lacks capacity to provide instructions on all or certain issues; (3) proper behaviour on a hospital ward; (4) non-disclosure orders issued by the Tribunal, and what action to take on behalf of the client. [Detail required.]

External links

  1. ↑ SRA Code of Conduct
  2. ↑ The Law Society
  3. ↑ MHLA Code of Conduct for Representatives

LEGAL AID

Legal Aid

[N.B. This article is incomplete and requires substantial redrafting.]

News

See Legal Aid News for news stories (up to 2012).

  • 01/04/13: To coincide with the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the abolition of the Legal Services Commission, both of which take effect on 1 April, the Legal Aid Agency has announced that neither the fixed fees system nor the matter start system is 'fit for purpose'. A spokesman stated that (a) the mental health fixed fee system has reached a level of complexity of which Heath Robinson would have been proud, so from today future payments will be based on a reasonable hourly rate for work reasonably incurred; and (b) the matter start system is unnecessary because of the abolition of fixed fees (in any event, ECHR obligations mean the total number of cases is determined by the number of patients detained by the state), so from henceforth individual firms may carry out as many cases as reputation and market forces permit. The Federation Of Outpatient Lawyers issued the following initial statement: 'This common sense approach seems too good to be true.' [April Fool!]

Guidance documents

  • Legal Services Commission, 'Guidance on the use of agents' (10/10/11). This document sets out the LSC's interpretation of the Standard Civil Contract 2010 that a firm with a high secure hospital contract may do the following, either separately or in combination: (1) use agents to allow firms without HSH contracts to represent HSH patients, or (2) use 30% of their own HSH matter starts at HSHs for which they do not have a contract.

Non-means-tested non-tribunal matters

  • Non-means-tested non-tribunal matters — If the reasoning given in a Costs Appeal Committee decision on a proposed Point of Principle on 17/10/12 were to be followed, it appears that means-testing would not apply to any matters where 'advice about the Tribunal and possible applications and timing of such' is provided to the client.

Category definition 2010

"1. Legal Help where the primary problem or issue relates to a point of English law concerning mental health, the Mental Health Act 1983 or the Mental Capacity Act 2005, including matters concerning education issues but only where based on mental impairment.

"2. All proceedings before a Mental Health Tribunal (including those arising from criminal proceedings and any related proceedings before the Upper Tribunal, High Court, Court of Appeal or Supreme Court), all other proceedings under the Mental Health Act 1983 or Mental Capacity Act 2005 and any other proceedings where the primary issue is mental health, but excluding any matters falling within the Clinical Negligence or Personal Injury Categories."[1]

Costs assessment

When assessing exceptional cases, the LSC use the following authorities, in addition to the limited decision-making guidance contained in Volume 3 of the LSC manual:

Payments

Guidance

Most mental health legal work is done under a legal aid fixed fees scheme introduced by the Legal Services Commission in January 2008[2] following the Carter review. The latest piece of guidance, called "Principles of Mental Health Fees", was updated in March 2009.[3] The changes between the February 2009 and March 2009 version of the Principles document is a new paragraph on page 7 ("If a provider references a social circumstances report as proof of means it is important that both the nature of the benefit (i.e is it passported?), the entitlement, the amount and the computation period must be considered and this is cross referenced to the CW1") and an addition to a sentence on page 9 ("Whether there are any other parties suitable and willing to provide assistance on behalf of the patient (such as an Advocate) should the need for specialist legal advice not be necessary"). An FAQ document dated 17/1/08 is also available.[4]. The LSC have published a guidance to staged billing of contract work[5]

Hourly rates

Pre July 2008 Post July 2008 From 3/10/11 Certificate CDS2 CDS3
LH CLR LH CLR LH London LH Country CLR London CLR Country
Letters 4.40 4.40 4.50 4.60 4.05 3.78 4.14 3.87 7.50 3.85 4.05
Telephone ” ” ” ” ” ” ” ” 4.15 ” ”
Preparation 57.35 61.20 58.50 64.25 52.65 48.24 57.83 54.09 79.50 49.70 60.00
Attendance ” ” ” ” ” ” ” ” 75.00 ” ”
Travel 30.30 30.30 30.90 31.80 27.81 27.00 28.62 27.81 33.25 26.30 26.30
Waiting ” ” ” ” ” ” 28.62 27.81 ” ” ”
Advocacy n/a 69.60 n/a 73.10 52.65 48.24 65.79 65.79 n/a n/a 68.25
Att with csl n/a 32.55 n/a 34.20 30.78 30.78 37.00 n/a 31.95

The pre-3/10/11 LH and CLR rates shown are the London rates.

The Certificate rates shown are the pre-3/10/11 London, Higher Court rates. Certificate rates in mental health are split into (a) 'Higher Courts' and 'County Courts and Magistrates Courts' and also (b) (for preparation and attendance) London and non-London. The new rates can be found in section 10 of the Schedule of revised legal aid fees.

A fixed fee scheme in prison law (CDS2 and CDS3) has been introduced, but the details have not been included here yet.

Fixed fees

Pre July 2008 Post July 2008 From 3/10/11
Fee for level Cumulative 3x threshold Fee for level Cumulative 3x threshold Fee for level Cumulative 3x threshold
Non Tribunal 275 275 825 281 281 843 253 253 759
L1 Tribunal 140 140 420 143 143 429 129 129 387
L2 Tribunal 340 480 1440 357 500 1500 321 450 1350
L3 Tribunal 311 791 2373 327 827 2481 294 744 2232
Adjournment x1 124 915 2745 130 957 2871 117 861 2583
Remote (L1) 75 n/a n/a 77 n/a n/a 69 n/a n/a
Remote (Non, L2, L3) 150 n/a n/a 153 n/a n/a 138 n/a n/a

Fee levels

The following fees, which were revised on 1 July 2008 for matter starts on or after that date,[6] are payable:

  • Non-MHRT work: £281 (increased from £275) per case.
  • MHRT work:
  1. Level 1: "Initial Advice" - £143 (increased from £140). Covers one visit to the client and a small amount of immediate follow-up work.
  2. Level 2: "Negotiation and Preparation" - an additional £357 (increased from £340). This covers all preparation work for the tribunal and any negotiation with third parties.
  3. Level 3: "Representation at the Mental Health Review Tribunal" - an additional £327 (increased from £311). This covers representation at the final tribunal hearing.
  • Additional payments:
  • "Adjourned hearing fees" of £130 (increased from £124) for attendance at tribunal hearings which are adjourned
  • "Remote travel payments" for travel to a small number of hospitals - £77 (increased from £75) for Level 1 MHRT work plus £153 (increased from £150) for each of Levels 2 and 3; alternatively, £153 (increased from £150) for non-MHRT cases. There are no hospitals qualifying for this fee, so it is never paid.
  • "Exceptional cases" are paid by the old hourly rate (either Legal Help or Controlled Legal Representation) if the hourly rate would amount to at least three times as much as the fixed fees.

Appeals

The position in relation to work done in (a) applying to the Tribunal for a review (s9 TCEA 2007; Tribunal rule 45) and/or (b) applying for permission to appeal (s11 TCEA 2007; Tribunal rule 46) is something like this (but please read the original LSC document):[7]

  • If the review/application for permission to appeal is unsuccessful, all the work forms part of the level 3 payment, i.e. unpaid-for unless it turned the case into an "exceptional case".
  • If the Tribunal sets aside its decision (s9 TCEA 2007) and a certificate (for Upper Tribunal work) is not subsequently issued, then you can claim an additional fee equivalent to the "adjourned hearing fee". Then you would recalculate whether or not you have an exceptional case.
  • If a certificate is subsequently issued, then the work done can be claimed under the certificate. Unless the work is already being claimed as an exceptional case.
  • If a fresh Tribunal hearing is held then this is a new matter start. You can claim level 3 and, if justified, level 1 and 2 payments.
  • If you do work on a review/appeal but didn't represent the patient at the original Tribunal hearing, then you can claim level 1 and 2 payments as appropriate, but not level 3 or bolt-on payments.

In relation to withdrawals and reapplications, see Important notice: Operation of section 77(2) MHA 1983 - disregarding withdrawn applications under the Legal Aid paragraph.

Types of Legal Aid

Legal Help and Controlled Legal Representation

There is now a single Legal Aid form for both of these. CLR is for Tribunal work and LH is for non-Tribunal work (although now the LH hourly rates are used for Level 1 Tribunal cases, in addition to non-Tribunal cases). Level 2 and 3 work is calculated at CLR rates.

Generally, non-Tribunal work is means tested[8]; Tribunal work is not. Clients on certain state benefits, including Income Support, are automatically eligible for Legal Help. Evidence of the client's benefits situation should be placed on the file, although there are exceptions. Evidence could be from:

  • a letter to the client from his benefits office;
  • the hospital MHA/Patient Affairs office;
  • the Benefits Agency;
  • information in social circumstances reports.

In relation to merits, LH has a "sufficient benefits test"; the grant of CLR must be "reasonable" (it invariably is).

If you have a MHRT file open then any work related to the same period of eligibility (hospital managers' hearings, CPA meetings, etc) must be claimed as part of that MHRT file. This is because non-MHRT mental health work becomes part of any MHRT case within the current period of eligibility (whether before or after the MHRT case). For further guidance on matter start boundaries, "rolling-up" of files, and when files should be billed, see the various LSC guidance documents.

Public funding certificate

A public funding certificate is required for Investigative Help or Legal Representation. In summary, Investigative Help is used where the merits of a case need to be investigated before further funding is granted, and Legal Representation is needed for judicial reviews or other court work such as s29 displacement proceedings.

It is means and merits tested. The relevant forms are the application forms (initially APP1) and the means forms (usually just MEANS2 or MEANS1).

An emergency certificate can be granted under devolved powers in any category where the firm has a contract. So mental health firms can grant an emergency certificate in a JR relating to mental health law. The full forms need to be sent to the LSC within 5 working days. If devolved powers do not apply then the LSC make the initial decision as to whether a certificate should be issued. The certificate will have costs and scope limitations: form APP8 is used for amending these.

Legal Aid forms

See Legal Aid forms

Legislation

Changes

  • The LSC announced on 31/7/09 that it will postpone the tender for the new civil legal aid contracts until late 2009 or early 2010, the new 3-year contracts will commence in October 2010, and current contracts will be extended for 6 months.[9]
  • See Consultations page for details of the LSC's consultation on civil bid rounds for 2010, which closed on 23/1/09.

See also

References

  1. ↑ 2010 category definitions and related guidance
  2. ↑ "Mental Health Standard Fee Scheme from January 2008", Unified Contract Civil Specification, updated 3/11/08
  3. ↑ "Principles of fixed fees", March 2009; "Principles of Mental Health Fees", November 2008 (old version - hosted on wiki as as LSC link broken)
  4. ↑ Mental Health Fee Scheme and Specification: Additional Questions and Answers following Provider Workshop Events, 17/1/08
  5. ↑ LSC, 'Guide to the changes in reporting Civil Legal Help work' (15/4/11) (staged billing)
  6. ↑ MH fees table on LSC website
  7. ↑ Contract Notice: Mental Health amendments from 3/11/08, Mental Health Specification, November 2008
  8. ↑ Eligibility calculator
  9. ↑ LSC announces postponement of civil bid rounds for 2010 contracts - press release 31/7/09

Other resources

Peer review

The Legal Services Commission uses peer review to assess the quality of legal advice given to clients. A sample of files is taken from a firm, and reviewed by an independent peer reviewer who is a lawyer experienced in the relevant area of law. Version 3 of the mental health guidance, dated April 2011 and published in May 2011, contains four new sentences (in chapter 4, 'Has the Tribunal been informed of the attendance of an interpreter?' and 'Confirm that the Tribunal is aware of the role of an interpreter and, if necessary, has allowed more time for the case'; in chapter 16, 'Subsequent to the implementation of Rule 11(4)(a) of the Tribunal Procedure Rules 2008, Tribunal decisions are not sent to the client' and 'Do final outcome letters to clients... [h]ave the Tribunal’s written decision enclosed?') and an appendix entitled 'Differences between Welsh and English Law'.

The system

The following are the five possible ratings:

  1. Excellence
  2. Competence Plus
  3. Threshold Competence
  4. Below Competence
  5. Failure in performance

Guidance documents have been published for various areas of law. The guidance sets out the sort of work which is necessary in order to provide a good service. The mental health guidance was published in 2006, and updated in January 2007 at the behest of the Legal Aid minister (the amendments were to reduce the suggested amount of necessary work).

The LSC's position in relation to the guides and the possible ratings can be summarised as follows:

  1. The guidance is not a directive for practitioners, but rather an aid to assist improvement from PR3 (threshold competence) to PR2 (competence);
  2. Legal Aid funding is a limited budget, value for money is the essential objective, and a PR2 rating represents the best value for money;
  3. Undertaking further work for clients to obtain a PR1 (excellence) rating is not encouraged.

See also Transaction criteria.

Preface to the second edition of the MH guidance document

The last edition of this guide was published in January 2007. Since that time the number of mental health peer reviewers has expanded and many more files have been reviewed. In addition there have been significant changes to both law and procedure with the introduction of the Mental Health Act 2007, new Rules for the Mental Health Tribunal, now renamed formally as the First Tier Tribunal (Mental Health), and the growth of practice under the Mental Capacity Act 2005. Where appropriate this guide has been amended to address these changes. As in the previous edition, it addresses procedures before the Mental Health Tribunal, although some advice would be applicable to other areas of the representation of those with mental health issues.

A recent meeting of peer reviewers considered what might generally be regarded as “major concerns” in files examined. The following points were agreed:

1. Relevant section or detention papers not being seen or examined

2. Medical records not being examined, or no evidence to support the assertion that they had been examined

3. No evidence of written advice specifically tailored to the client’s situation; that is complete reliance on standardised correspondence

4. No evidenced attempt to check the Tribunal decision for legality

5. Where there is a conflict of interest demonstrated on a file, for example by acting for a party opposing discharge as well as for an applicant patient seeking discharge

6. In cases where the Nearest Relative had the power to discharge the client from section where no attempt had been made:

a) To identify the Nearest Relative with the client

b) Discuss with the client the Nearest Relative’s powers

c) To seek the client’s consent to contact the Nearest Relative

Peer reviewers accept that particular circumstances might prevent these issues from becoming “major concerns.” Illustrations would include the client refusing consent to access medical records or making it clear he, or she, wanted no, or limited, correspondence.

Similarly, additional issues might be major concerns, such as inadequate attendance, but in the particular context of the file samples.

Following further consideration of advice on the “merits of the case”, peer reviewers accepted this could be a very difficult area in mental health cases. In particular, “early advice” in this area was frequently felt to be unrealistic. This part of the guide has been re-drafted to reflect this view. This is not to say, however, that peer reviewers felt that the prospects of success should not generally be discussed when appropriate with the client.

Peer reviewers remain concerned to see what effect the introduction of new funding procedures may have on the quality of work carried out in this area of law. However, to date, there is no clear way for reviewers to conclude how these new fees have impacted on files before them, as no straightforward comparative “before” and ”after” samples files are available. Peer reviewers are aware of the role of “exceptional cases” within the new fee scheme, which may become more common as advisers conduct a range of work within a client’s Tribunal eligibility period.

Peer reviewers feel this guide represents their view of what good practice will generally require in conducting a case before the new Mental Health Tribunal.

This guide assumes knowledge of Tribunal procedure together with the relevant law and should not be used as a substitute for these. It is to be hoped, however, that this guide can assist practitioners to deliver good standards of work, and indeed, despite the pessimism in much of the profession, encourage a positive debate about the delivery of this vital work and assist in the improvement of standards.

As in the previous edition, there is some overlap between some sections of the guide, and subsequently some overlap of content. This has again been seen as necessary so that important issues are not missed.

As indicated in the Foreword to the first edition, the suggestions made in this edition are not prescriptive, unless they repeat regulatory obligation, and it is accepted that practitioners may work in a variety of ways to deliver good quality.

External links

LSC Peer review main page

Legal Services Commission, 'Improving your quality: Mental health' (v3, dated April 2011, published May 2011). Peer review guidance. The previous versions are also available.

Peer review civil criteria. Mark sheet, updated May 2008

The LSC's position in relation to the guides

LSC's refusal, in response to FOI request, to publish peer review decisions (5/7/11)

TRIBUNAL

Mental Health Tribunal

On 3/11/08 the Tribunal system changed. In England, the Mental Health Review Tribunal became part of the Health and Social Care Chamber of the First-tier Tribunal. It is properly called the First-tier Tribunal (Mental Health) but in practice is often called the Mental Health Tribunal. In Wales the Tribunal is called the Mental Health Review Tribunal for Wales.

The tribunal is the 'court' which convenes at the hospital at which the patient is detained and which determines whether the grounds for detention under the Act continue to exist. The panel consists of three members: the medical member, usually a consultant psychiatrist, who sits on the left; the legal member (a lawyer, often a judge in restricted cases); and a lay member, who sits on the right.

See also

The Tribunal and Article 5

Article 5(1), with para (1)(e), states:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

Article 5(4) states:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

The Tribunal is a 'court' as mentioned in Article 5(4) because it considers the patient's mental state and must discharge if the criteria for detention are no longer met (see s72,s73 and s74). If a Tribunal knows for sure that a person is not detained under the MHA 1983 (or that a Tribunal application is not valid) then it will not hold a hearing, as it does not have jurisdiction. That aside, the Tribunal ignores the underlying lawfulness of the detention as it role is only to consider the the patient's mental state on the day of the hearing: see, for example, R (von Brandenburg) v East London and City MH NHS Trust (2003) UKHL 58 para 9. If it is believed that detention is unlawful and/or in breach of Article 5 then the patient is entitled to apply for judicial review and/or habeas corpus. Most detained patients would not themselves be able to notice that their detention is in breach of Article 5 so good legal advice is necessary; in addition, hospitals scrutinise civil admission papers (see regulation 4 Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 and s15).

External links

Main pages

On 1/4/11 the Tribunals Service and Her Majesty's Courts Service merged to form Her Majesty's Courts and Tribunals Service. The 'mhrt.org.uk' website is no longer operational, and the content has been scattered across the MOJ website.

  • Application to First–Tier Tribunal (Mental Health)
  • Referral to First–Tier Tribunal (Mental Health)
  • CMR1 Form
  • Witness and Nearest Relative Claim Form
  • Form P9 - Application to set aside a decision or part of a decision (Rule 45)
  • Form P10 - Application for permission to appeal to the Upper Tribunal (Rule 46)

Annual Report

  • Senior President of Tribunals, 'Senior President of Tribunals' Annual Report' (February 2012). This report contains the following in relation to the mental health jurisdiction: (1) A periodic digest of common errors, arising in 'review' decisions (First-tier appeals on points of law), is issued so that members can 'learn from the experience of colleagues who are faced with difficult legal questions': this digest is available to legal, medical and lay members, but surprisingly not to patients, their representatives or the public. (2) There was a 3% increase in receipt of cases from 2009-10 to 2010-11, mostly due to CTOs, changes in status, and increased use of s2. (3) The 'continuing improvement' and 'excellent progress' by the secretariat, and the duty judge scheme, has led to improved case management and reduced the adjournment rate within two years from 20% to 7%. (4) The AH case on publicity and the RB case on discharge conditions are noted as interesting cases. (5) Use of secure email will be encouraged. (6) Twelve salaried tribunal judges were appointed to the Restricted Patients Panel in 2011.

Tribunal member and stakeholder email bulletin

  • Tribunals Service, 'Tribunal Member and Stakeholder Bulletin' (Dec 08). Contents: (1) IMPORTANT – Operation of Section 77(2) MHA 1983; (2) Information on the HESC Chamber; (3) Tribunals, Courts & Enforcement Act 2007 Implementation; (4) MARTHA Database; (5) TS Clerk Project; (6) Section 67 applications; (7) TS Mental Health Tribunal Hearing Room Audit
  • Tribunals Service, 'Stakeholder Bulletin' (March 2010). Contents: (1) Principal Judge; (2) Requests for Referral; (3) Interpreter Requests and Payments; (4) Process Update; (5) Secure Email; (6) Submitting Applications; (7) Issuing the Tribunals’ Written Decision; (8)Nearest Relatives; (9) Communication
  • HMCTS, 'Mental Health Tribunal Stakeholder Bulletin April 2012' (17/4/12). The following are the headings: Contacting the Tribunal; Reports Processing Team; Section 2 Cases; Scanned Reports; Password protection; Notification to the Tribunal of Patient Withdrawals and RC Discharges; HQ2 Questionnaire; FTT Mental Health Policy update; Clerking; Facilities for the Hearing impaired; Olympics and Paralympics 2012 and the potential impact; Relist Team; Customer Survey; Feedback. In relation to the new forms: Form CNL2 ('Case Notification Letter 2'), which from May 2012 will be sent to the representative with the RC's report, demands that the representative complete Form HQ2 ('Hearing Questionnaire 2'). HQ2 asks the following questions: (1) What is the Patient seeking from the tribunal, and what are the principal areas of dispute? (2) Do you intend to call an independent expert? If so, please give details. (3) What is your hearing time estimate? (4) Would this case benefit from pre-hearing review by a tribunal judge? If so, please say why (e.g. change of status under the Act, or recent hospital transfer). (5) Are there any other matters that you feel that the panel should know in order to dispose of this matter justly, fairly and without delay? (6) Does the patient need an interpreter? If so, please give details of language and dialect.

MOJ/MHT Protocol

  • MoJ/MHT protocol - marked "April 2009" but last edited in July 2009. This document sets out the responsibilities of the MoJ and MHT in the Tribunal procedure. For instance, the protocol provides that no MoJ comments are required in the following circumstances: (1) for initial reports, the MoJ have had the reports for 21 days; (2) for subsequent reports, including addendum and independent reports, the MoJ have received the reports at all.

Messages from Deputy Chamber President

  • Mark Hinchliffe, 'Important Notice' (29/3/12). This document describes the changes made by the Tribunal Procedure (Amendment) Rules 2012 on 6/4/12. In relation to the tribunal's requirement, in CTO reference cases, for evidence from the RC about the patient's capacity to decide not to attend or be represented, it states: 'We do not see that this should present a difficulty or a conflict of interest. The Responsible Clinician, as an expert witness, has no "interest" one way or the other and, in any event, has a responsibility to assess capacity in many situations...'

Information sheets

  • "What sort of decisions can the Tribunal make?" - "...can recommend a transfer to another hospital, if that would be beneficial" -- This can only be "with a view to facilitating [the patient's] discharge on a future date" (rather than "if that would be beneficial").
  • "When can I apply?" - "But remember you can only have one hearing of an application during each period of detention" -- You can only make one application during each period but this could lead to more than one hearing during one period of detention.
  • "What happens if you change your mind about having a Tribunal?" - "... you have the right to one Tribunal hearing during each period you are detained on section" -- You are entitled to one application (rather than one hearing) during each period.
  • "Further notes" -- a restricted patient also includes other patients - s45A
  • "A tribunal cannot discharge you subject to a restriction order (a transferred prisoner) but can notify the Secretary of State that you would be entitled to an absolute or conditional discharge if you were on a hospital order made by a court with restrictions on discharge." -- This only applies to patients subject to a restriction direction.
  • "When can you apply?" -- A patient subject to s47/49 can apply during the first six months of detention in addition to the periods mentioned in the leaflet.
  • Tribunals Service, 'Information for Nearest Relatives' (2009). The leaflet talks about the patient as being the nearest relative's nearest relative - this is not always the case. For example, if your sister is detained you might be her nearest relative; however, if you are married (and not separated etc) your sister will not be your nearest relative.

CJSM

  • Law Society, 'Mental Health Tribunals Service: secure email' (24/2/11) - The Law Society have published a statement encouraging solicitors to use the CJSM secure email system. The text is as follows: 'Users of the Mental Health Tribunals Service will often be required to transmit sensitive data by email in their communications with the tribunal. The inherent insecurity of 'non-secure' email is not ideally suitable for such communications. We would encourage eligible practitioners to sign up to the Ministry of Justice's secure email service, which supports free and secure communication with Mental Health Tribunals. Further information about the service is available at www.cjsm.gov.uk, including interactive training and a help desk which can be contacted on 0870 010 8535.'

Salaried Tribunal judges to chair restricted hearings

  • Hansard HC Deb 26 July 2010 col 51WS. The Secretary of State has agreed to the proposal of salaried Mental Health Judges with suitable experience being selected to chair Restricted Patients Panel cases. It was decided not to do an initial trial run first because the salaried judges will only be selected to take on the work if the President considers them capable, but the President will monitor the ticketed judges and arrange any additional training that he may deem necessary. Written Ministerial Statements were tabled on 26/7/10:
'Judicial Appointments
'The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke): I am today announcing my agreement that salaried mental health judges with suitable experience can be selected to chair Restricted Patients Panel cases in the mental health jurisdiction.
'These cases involve patients who are detained in hospital by virtue of a restriction order imposed by the Crown Court or by virtue of being transferred from prison by direction of the Secretary of State. The convention, since the implementation of the Mental Health Act 1983, has been that the tribunal judge chairing the panel will always be a circuit judge, a retired circuit judge or a recorder QC. However, the convention came about at a time when there were no full-time judges in the mental health review tribunal and was designed to provide assurance when this power was first transferred from the Secretary of State to the tribunal that an experienced member of the judiciary would be involved in decisions on whether to direct the discharge of a patient.
'There are now full-time salaried judges within the jurisdiction with the necessary experience. Circuit judges and recorder QCs will continue to deal with the majority of cases but authorising some of the salaried mental health judges will increase the pool of available chairs to hear the cases.'

Other

  • Tribunals Service, 'Business Plan for 2010-11' (March 2010). The MHT's "Primary Performance Indicators" (targets) were as follows: the percentage of Section 2 cases listed for first hearing within 7 days of receipt (statutory target) 100%; the percentage of non-restricted cases disposed of within 9 weeks of receipt 75%; the percentage of Restricted Patient cases disposed of within 17 weeks of receipt 75%.

Related book

Jonathan Butler, Mental Health Tribunals: Law, Practice and Procedure (Jordans 2009)

Upper Tribunal

Just like with the First-tier Tribunal, the Upper Tribunal is divided into chambers. The chamber relevant to mental health work is the Administrative Appeals Chamber.

The Upper Tribunal (Administrative Appeals Chamber) deals with appeals from the First-tier Tribunal.

See also

Summary of Tribunal Rules

Set out below are links to the various Tribunal rules and a brief summary of them. [Draft notes]

Tribunal organisation

The Tribunal which decides on the lawfulness of a patient's detention in England is the First-tier Tribunal (Health, Education and Social Tier Chamber) (Mental Health), commonly known as the Mental Health Tribunal. In Wales the Tribunal is the "Mental Health Review Tribunal in Wales". Appeals in both jurisdictions are heard in the English Upper Tribunal.

Applications are sent to the Tribunal office in Leicester, and can be sent by letter, email or fax, depending on preference and urgency. Email and fax are to be preferred, in case the application gets lost. The application form is voluntary but helpful for the Tribunal clerks, and is available on the Tribunal website. The application can be signed by the patient or someone authorised to sign on his behalf.

Rules and Practice Directions

Each Tribunal has its own rules:

Also, several practice directions and notes have been issued:

A complete list of Rules, Practice Directions and Guidance is available on the Tribunal Rules page.

Description of rules

Reports

Reports are required in the following areas: medical, social circumstances, and nursing. The Practice Direction on reports explains what content is required.

Rule 32 explains the time limits. In most cases, reports are required within 3 weeks of the Tribunal sending the notification of application.

Directions

This is governed by rule 6. When the reports do not arrive within the deadline, directions should be sought to direct that the reports be produced.

Non-disclosure of documents and information

This is governed by rule 14.

Withdrawal

Requests to withdraw Tribunal applications are governed by Tribunal rule 17. The withdrawal request can be made "at any time before a hearing to consider the disposal of the proceedings" (a letter would suffice) or "orally at the hearing".

The rules about the Tribunal's consent vary:

  • A patient's application cannot be withdrawn without the Tribunal's consent. If the request is made in writing before the hearing date it is almost invariably agreed.
  • A discretionary reference by the SoS for Health (under s67) or the SoS for Justice (under 71(1)) can be withdrawn without the Tribunal's consent.
  • A mandatory reference cannot be withdrawn. These are references by hospital mangers (under s68), by the SoS for Justice 3 years since the previous hearing (under s71(2)) or by SSJ after recall (under s75(1)).

Decisions

The relevant rule here is rule 41. The Tribunal may give a decision orally, and invariably do. Subject to the rules on non-disclosure of documents/information, written reasons must be sent within 7 working days (3 working days for s2 hearings).

This category contains various general articles which don't readily fit into any of the other categories.

Eligibility periods

One application may be made to the Tribunal in each eligibility period. These periods vary from section to section. If an application is withdrawn it is treated as never having been made (s77(2)) so the patient can re-apply within the same eligibility period.

Section/event Application by patient Application by NR Authority
Section 66: Applications to Tribunals
s2 admission for assessment Application may only be made during the first 14 days' detention - s66(1)(a), (2)(a)
s4 emergency admission for assessment At any time - s66(1)(a), (2)(a)
s3 admission for treatment. (This does not apply to recalled CTO patients under s17E.) One application during first six-month period; once during subsequent six-month period; once during each annual period thereafter - s66(1)(b), (2)(b) (first six months). s66(1)(f),(2)(f) (following renewals). s66(2A) (disapplying s66(1)(b) for recalled community patients).
s7 guardianship application As for s3 - s66(1)(c),(2)(c) (first six months). s66(1)(f), (2)(f) (following renewals)
s17A CTO made (previously part II patient) Six months beginning with the day on which the CTO was made; once during subsequent six-month period; once during each annual period thereafter - s66(1)(ca), s66(2)(ca) (first six months); s66(1)(fza), s66(1)(fza) (on renewals)
s17A CTO made (previously part III unrestricted patient where hospital order had been made by court within six months) Once between the end of (a) the first six months of the hospital order and (b) the first six months of the CTO; thereafter the same as above As for patient s66, s69 ...
s17A CTO made (previously part III unrestricted patient but not in category above) Six months beginning with the day on which the CTO was made; once during subsequent six-month period; once during each annual period thereafter As for patient s66, s69 ....
s17A CTO revoked Six months beginning with the day on which the CTO was revoked [except where hospital order has been made by court in last six months, in which case the right to apply does not apply until after the first six months of the hospital order) - s66(1)(cb), s66(2)(cb)
Transferred from guardianship to hospital under s19 As for s3 - s66(1)(e),(2)(e) (first six months). s66(1)(f), (2)(f) (subsequently)
Renewal report made under s20 and patient not discharged under s23 The period for which the detention or guardianship is renewed (see relevant section) - s66(1)(f), s66(2)(f)
s37 hospital order See below under s69 See below under s69 s66(1)(f) and s69
CTO renewal report made under s20A and patient not discharged under s23 The period for which the CTO is renewed (six months for the first renewal, 12 months for subsequent renewals) - s66(1)(fza), s66(1)(fza)
A report is furnished under s21B(2) and subs(5) (or subs (5) and and (6)(b)) apply. This relates to AWOL patients who are taken into custody or return after more than 28 days. The period for which the detention or guardianship is renewed (see relevant section) - s66(1)(fa), s66(2)(f)
A report is furnished under s21B(2) in respect of a community patient and subs (6A) (or subs (6A) and (6B)(b)) apply. This relates to community patients who are taken into custody or return after more than 28 days. The period for which the CTO is renewed - s66(1)(faa), s66(1)(fza)
Barring order under s25 (for s3 or CTO patients only) - Within 28 days of being informed that the report has been furnished s66(1)(g), (2)(d)
NR displaced under s29 under grounds (3)(c) or (3)(d) (where patient becomes liable to be detained, Part II guardianship, or who is a community patient) - In each 12-month period following date of order s66(1)(h), (2)(g)
s69: Applications to tribunals concerning patients subject to hospital and guardianship orders
s37 hospital order - or a community patient who was subject to a hospital order immediately before the CTO. (This applies to any order having the same effect as a hospital order) No application during first six-month period; once during subsequent six-month period; once during each annual period thereafter As for patient s66(1)(f), (2)(f) (patient). s69(1)(a) (which gives the NR the same rights as the patient). s55(4) (which extends the meaning of s69(1)).
s37 guardianship order As for s3 Once in each 12-month period s69(1)(b) (first 6 months for patient, and yearly for NR); s66(1)(f),(2)(f) (patient can apply upon each renewal);
Treated as subject to hospital order:
  • notional s37 after restrictions expire (s41(5));
  • on removal from other British Isles jurisdictions under s80B(2), s82(2), s85(2)
During first six months (unlike normal hospital orders); during second six months; during each 12-month period thereafter (i.e. the same as s3) As for patient s69(2) (first six-month period), s69(1)(a) (giving NR same powers as patient). s55(4) (which extends the meaning of s69(1)).
Under direction having same effect as hospital order:
  • under s47(3), i.e. s47 transfer direction (notional s37) and s47/49 transfer/restriction direction,
  • under s48(3), i.e. s48/49 transfer of unsentenced prisoner
As above As above s69(2)(b) (first six-month period), s70 (subsequently, for restricted patients). s66(1)(f), (2)(f) (subsequently, for s47). s55(4) (which extends the meaning of s69(1)).
s70: Applications to tribunals concerning restricted patients
s37/41 restricted hospital order As for s37 - s70
s75: Applications and references concerning conditionally discharged restricted patients
Conditionally discharged patient who has not been recalled No application during first year after discharge; once during second year; once in each subsequent 2-year period - s75(2)
Conditionally discharged patient who has been recalled As for s37 but the dates run from the date of recall (or return to hospital, if later) so no longer from the original date of admission. In addition, the Home Secretary refers the case to the MHRT within the first month following return. - s75(1)
Miscellaneous
s35 remand for report, s36 remand for treatment, s38 interim hospital order No right of application - N/A


Notes

This is in addition, where relevant, to the right to make periodic applications to the hospital managers and the right of the nearest relative to 'order' discharge under s23. NR's require High Court permission to apply to the MHRT where the patient is a ward of court (s33(2)). The Responsible Clinician (in unrestricted cases) and Ministry of Justice (restricted cases) can discharge at any time.

It is also in addition to the various powers and duties to make automatic references.

A change in status between the application and the hearing date can affect whether or not the application remains in force. For example, changing from s2 to s3 does not affect the validity of a Tribunal application (R (M) v South Thames MHRT (1997) EWHC Admin 797), whereas a change from s47/49 to s47 does (R (MN) v MHRT (2008) CO/5741/2007).

See also

External link

DH: Applications to the First-tier Tribunal (Mental Health) - 2/9/10 - gateway reference 14763 - Summary of when and by whom applications may be made to the First-tier Tribunal

Automatic references

When patients do not exercise their right to apply to the Mental Health Tribunal, references can (and in some cases, must) be made on their behalf.

Secretary of State for Health

The Secretary of State for Health can refer Part II patients at any time (s67(1))

Hospital managers

The hospital managers will make a reference to the Tribunal in certain circumstances (s68). The system has been changed by the Mental Health Act 2007. See Automatic reference scheme under s68 changed 3/11/08

The managers are: in relation to a community patient, the managers of the responsible hospital; in relation to any other patient, the managers of the hospital in which the patient is liable to be detained (s68(9)).

S68 applies to

  • s2 patients
  • s3 patients
  • community patients (i.e. subject to s17A CTO)
  • patient whose CTO has been revoked under 17F
  • patient transferred from guardianship to hospital under s19

Six months rule

On expiry of the the period of six months beginning with the "applicable day" the managers must make a Tribunal reference, unless one of the s68(3) exceptions apply. The "applicable day" means (s68(5)):

  • For s2, the date of admission under s2
  • For s3, the date of admission (either the s3 date or previous s2 date)
  • For community patients (i.e. on CTO), or where CTO has been revoked under s17F, the earlier of the s2 or s3 admission dates.
  • For transfers from guardianship to hospital, the transfer date.

The exceptions are:

  • a Tribunal application has been made under s66(1)(b) (by s3 patient), (ca) (by community patient in first six months), (cb) (by patient when CTO revoked), (e) (by patient when transferred from guardianship to hospital), (g) (by NR when barring order made) or (h) (by NR when displaced on certain grounds).
N.B. A withdrawn application does not count, and if a withdrawal is after the six month period then a reference must be made as soon as possible (s68(4).
N.B. An application made under s2 or s4 does not count either.
  • a reference has been made by Secretary of State for Health under s67(1) (although this exception does not apply if the reference was made when the patient was under s2)
  • a reference has been made under s68(7) (automatic reference on revocation of CTO)

The six-month rule does not apply to unrestricted Part 3 patients (see para 157 of Explanatory Notes).

Three years rule

The managers must also make a reference when it is three years from the last Tribunal. Where the patient is under 18, the period is one year (s68(6)). The three-year rule does apply to unrestricted Part 3 patients (see para 157 of Explanatory Notes).

Revocation of CTO

The managers must also make a reference as soon as possible after a CTO is revoked under s17F (s68(7)).

Secretary of State for Justice

The Secretary of State for Justice can refer Part III restricted patients at any time (s71(1)) and must do so where there has been no Tribunal for three years (s71(2)).

See also

PSYCHIATRY

Psychiatric information

This page will set out basic psychiatric information which may be useful for lawyers. [Draft notes.]

Common diagnoses

Schizophrenia, schizoaffective disorder, bipolar affective disorder; personality disorders; learning disability. ICD-10/DSM-IV. See ICD-10

Medication

BNF. List and describe common meds. See BNF

Other psychiatric information

Care Programme Approach, risk assessment. Medical professionals and roles.

See also

ADVANCED POINTS

Technical lifer status

"Technical lifer" status could be given to lifers, who had been transferred to hospital, whose sentence ought properly to have been a hospital order.

Technical lifers remain (under statute) detained under s47/49 but are (as a matter of policy) treated as if detained under s37/41. The patients are discharged as mental health patients; the Parole Board does not consider their cases and they are not released under life licence.

The Tribunal does not have power to discharge technical lifers (under statute) but (as a matter of policy) the Ministry of Justice always agrees to discharge following the Tribunal's recommendation under s74. It was this distinction (i.e. the Tribunal not having the power to discharge) which led to the ECtHR in Benjamin and Wilson 28212/95 (2002) ECHR 636 holding that technical lifer status breached the Convention.

The government subsequently to stop making patients subject to technical lifer status (which had been favourable to patients) rather than making the system ECHR-compatible by giving the Tribunal the power to discharge. Existing technical lifers are still subject to the old incompatible scheme.

Now, the patient must appeal against sentence to the Court of Appeal (via the CCRC if necessary).

Written ministerial statement

From 2 April 2005, life sentence prisoners who have been transferred to psychiatric hospital for treatment will no longer be considered for technical lifer status. All life sentence prisoners will have their future release determined by the Parole Board and be subject to life licence on release. This decision has been taken in light of the judgment in the case of Benjamin and Wilson v the United Kingdom, which found that technical lifer policy was in breach of article 5(4) of the European convention on human rights. This will not affect those who have already been granted technical lifer status, or the consideration of any pending applications. No new applications, however, will be considered after 2 April 2005.

External links

House of Commons Hansard

Power to specify hospital units

s47 of the Crime (Sentences) Act 1997 states that certain powers to specify a hospital includes the power to specify a specific hospital unit. This applies when the following orders/directions are made:

  • Hospital order with restriction order, s37/41
  • Hospital and limitation direction, s45A
  • Restricted transfer direction, s47/49

Any reference in legislation to "hospital" is then taken to refer to the specified hospital unit instead. This affects the following decisions:

  • The RMO needs Ministry of Justice permission to grant leave of absence (under s17) except within any grounds of the specified hospital unit. In normal circumstances, the RMO does not need permission to grant leave within the hospital grounds (and only needs permission for "community" leave).
  • Ministry of Justice permission is also required for the transfer (under s19) of a patient from the specified unit to another unit of the same hospital. Normally the Ministry of Justice is only involved in transfer between hospitals.

The purpose of the power is to allow the Ministry of Justice to have a say in the level of security in which the patient is detained.

External links

From Ministry of Justice website:

ALL GENERAL INFORMATION PAGES

Consider adding information from these pages:


[−] General information‎ (11 categories, 4 pages)
[−] Changes made by MHA 2007‎ (37 pages)
  16- or 17-year-old with capacity cannot be detained on basis of parental consent
  Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
  Additional safeguards for ECT introduced in new s58A
  Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
  Approved Mental Health Professional replaces Approved Social Worker
  Automatic reference scheme under s68 changed
  Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
  Civil partners are treated as if married when determining nearest relative
  Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
  Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
  Fundamental principles set out in Act and included in Code of Practice
  Higher penalties for offences under Act
  Hospital direction patients can no longer apply to Tribunal during first six months
  Hospital directions under s45A apply to any mental disorder
  Legal status of Code of Practice set out in Act
  Limitation to the exceptions to the duty to instruct IMCA
  Mental disorder no longer split into separate classifications
  Minor drafting error in MCA 2005 corrected
  New cross-border arrangements for leave and transfer
  New definition of medical treatment
  New Independent Mental Health Advocate scheme
  New procedure for renewal of detention
  New regulations on conflicts of interest
  New requirements for age-appropriate accommodation for children
  NHS Foundation Trusts discharge power problem remedied
  Organisation of Mental Health Review Tribunal changed
  Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
  Patients can be transferred between places of safety under s135 and s136
  Procedure for making of instruments by Welsh Ministers set out
  Reference to Local Health Boards inserted into Act
  Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
  Restriction orders can no longer be time-limited
  SOAD certificate becomes invalid when patient loses or gains capacity
  Some exclusions to definition of mental disorder have been removed
  Supervised Community Treatment replaces Supervised Discharge
  Transitional provisions until full implementation of MHA 2007
  Treatment while under SCT is covered by new Part 4A
[−] Legal Aid‎ (7 pages)
  Intro to mental health law
  Legal Aid
  Legal Aid forms
  Legal Aid News
  Non-means-tested non-tribunal matters
  Peer review
  Transaction criteria
[−] Mental Capacity Act 2005 provisions‎ (14 pages)
  Advance decision
  Court of Protection
  Court of Protection forms
  Court of Protection Guidance: Applications to the Court of Protection in relation to tenancy agreements
  Court of Protection Practice Directions
  Deprivation of Liberty Safeguards
  Enduring Power of Attorney
  Guidance in cases involving protected parties in which the Official Solicitor is being invited to act as guardian ad litem or litigation friend
  Independent Mental Capacity Advocate service
  Lasting Power of Attorney
  MCA Update emails
  Office of the Public Guardian
  Official Solicitor
  Practice Guidance: Committal for Contempt of Court (2013) EWHC B4 (COP)
[−] Miscellaneous articles‎ (1 categories, 52 pages)
[−] Smoking‎ (6 pages)
  Health Act 2006
  R (G) v Nottinghamshire Healthcare NHS Trust (2008) EWHC 1096 (Admin)
  R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust (2009) EWCA Civ 795
  Smoke-free (Exemptions and Vehicles) Regulations 2007
  Smoke-free Premises etc. (Wales) Regulations 2007
  Smoking
  Adult Social Care
  After-care
  Application of MHA 1983 to Armed Forces
  Approved Mental Health Professional
  Approved Social Worker
  Assisted suicide
  Brief glossary
  Capacity to consent to sexual relations
  Care Programme Approach
  Case preparation
  Children and mental health law
  Civil restraint order
  Complaints procedure
  Compulsory treatment
  Consent to treatment
  Covert administration of medication
  Definition of mental disorder
  Dual diagnosis
  Extra-statutory recommendations
  Guardianship
  High secure hospital
  Independent inquiries
  Independent Mental Health Advocate service
  Inquests
  Insight
  Intro to mental health law
  IPP
  Judicial review
  Jury service
  Learning disability
  Leave of absence
  Mental disorder
  Mental disorder and driving
  Murder
  Nuisance or disturbance on hospital premises
  Ordinary residence
  Power to specify hospital units
  Prison law
  Psychiatric information
  Psychiatric medication
  Psychopathic disorder
  Recall
  Repatriation
  Second Opinion Appointed Doctor
  Summary of types of detention
  The ECHR and mental health law
  The role of the mental health lawyer
  Transfer
  Treatability test
  Victims' rights to make representations and receive information
  Voting rights for detained patients
  Welfare benefits
[−] Organisations‎ (35 pages)
  Administrative Justice and Tribunals Council
  All Party Parliamentary Group on Legal Aid
  Bailii
  Care and Social Services Inspectorate Wales
  Care Services Improvement Partnership
  Commission for Social Care Inspection
  Crown Prosecution Service
  Department of Health
  European Union Agency for Fundamental Rights
  Family Law Week
  General Medical Council
  Health Professions Council
  Healthcare Commission
  Healthcare Inspectorate Wales
  House of Lords
  HUDOC
  Incorporated Council of Law Reporting
  Law Commission
  Law Society
  Legal Ombudsman
  Legislation.gov.uk
  MAPPA
  Mental Health Act Commission
  Mental Health Lawyers Association
  Mind (Charity)
  Ministry of Justice
  National Mental Health Development Unit
  National Policing Improvement Agency
  Office of Fair Trading
  Office of Public Sector Information
  Parole Board
  PPMHG
  Royal College of Psychiatrists
  Statute Law Database
  Venice Commission
[−] Other jurisdictions‎ (4 categories)
[−] Northern Ireland‎ (1 categories, 8 pages)
[+] Northern Irish cases‎ (10 pages)
  Mental Health (Northern Ireland Consequential Amendments) Order 1986
  Mental Health (Northern Ireland) Order 1986
  Mental Health Review Tribunal (Amendment) Rules (Northern Ireland) 2010
  Mental Health Review Tribunal for Northern Ireland
  Northern Ireland
  Northern Ireland Act 1998
  Police (Northern Ireland) Act 2000
  Supervision and Treatment Orders (Maximum Period) Order (Northern Ireland) 2011/115
[−] Scotland‎ (1 categories, 17 pages)
[+] Scottish cases‎ (54 pages)
  Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (Adults with Incapacity) 2001
  Adult Support and Protection (Scotland) Act 2007
  Adults with Incapacity (Scotland) Act 2000
  Mental Health (Absconding Patients from Other Jurisdictions) (Scotland) Regulations 2008
  Mental Health (Care and Treatment) (Scotland) Act 2003
  Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005
  Mental Health (Conflict of Interest) (Scotland) (No 2) Regulations 2005
  Mental Health (Cross-border Visits) (Scotland) Regulations 2008
  Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008
  Mental Health (Safety and Security) (Scotland) Amendment Regulations 2012
  Mental Health (Scotland) Act 1984
  Mental health law in Scotland
  Mental Health Tribunal for Scotland
  Mental Welfare Commission for Scotland
  Mental Welfare Commission for Scotland (Qualifications, Training and Experience of Medical Visitors) Regulations 2010
  Scotland Act 1998
  Scotland Act 1998 (Consequential Modifications) (No 2) Order 1999
[−] Southern Ireland‎ (1 categories, 1 pages)
[+] Southern Irish cases‎ (11 pages)
  Mental Health Act 2001 (Ireland)
[−] Wales‎ (1 categories, 2 pages)
[+] Welsh legislation‎ (17 pages)
  Wales
  Welsh Assembly emails
[−] Resources‎ (19 pages)
  39 Essex Street COP Newsletter
  British National Formulary
  Consultations
  Eldergill
  Enforcement Instructions
  Foreign-language information leaflets
  Home Office Circulars
  International Classification of Diseases (ICD)
  Intro to mental health law
  Judicial review forms
  Judicial review pre-action protocol
  Judiciary
  Key sources of information
  Mental Welfare Commission for Scotland
  Miscellaneous external links
  Newsletters
  Part 36
  Practice Direction: Citation of Authorities (2012)
  Statistics
[−] Routes to discharge‎ (15 pages)
  Automatic references
  Barring order
  Dangerousness criterion
  Eligibility periods
  Hospital Managers' Hearing
  Intro to mental health law
  Mental Health Review Tribunal for Wales
  Mental Health Tribunal
  Ministry of Justice
  Ministry of Justice involvement in restricted cases
  Nearest relative
  Responsible Clinician
  Responsible Medical Officer
  Summary of routes to discharge
  Upper Tribunal
[−] Types of detention‎ (17 pages)
  All types of detention
  Admission for assessment
  Admission for treatment
  Admission order
  Emergency admission for assessment
  Hospital direction
  Hospital order
  Interim hospital order
  Intro to mental health law
  Limitation direction
  Notional s37
  Restricted hospital order
  Restricted transfer direction
  Restriction direction
  Restriction order
  Summary of the detaining sections
  Transfer direction
[−] Types of discharge‎ (11 pages)
  Absolute discharge
  Community Treatment Order
  Conditional discharge
  Deferred conditional discharge
  Deferred discharge
  Deferred discharge of unrestricted patient
  Discharge of transferred prisoners
  Full discharge of unrestricted patient
  Intro to mental health law
  Summary of types of discharge
  Supervised discharge
[−] Types of patient‎ (4 pages)
  Intro to mental health law
  Restricted patient
  Technical lifer status
  Unrestricted patient
  General information
  Glossary
  Intro to mental health law
  Summary of Tribunal Rules
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