DRAFT NOTES!
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:
Eventually you will know your way round all these sources of information.
Here are some basic terms which you'll need to know to understand at the outset.
The relevant definitions and exceptions are to be found in s1:
And:
The only full exception is that:
In addition, for specified purposes:
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.
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.
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.
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]
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]
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):
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:
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.
This includes two separate powers:
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)):
The guardian may be either a local social services authority or any other person. His powers are (s8(1)):
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.
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.
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:
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.
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.
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.
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.
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.
The term "notional s37" is not mentioned in the statute, but is a often used informally in the following cases:
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 include:
Insert: Consent to treatment provisions - Part 4. Put Part 4A with CTO stuff.
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:
The following are some of the Secretary of State's powers:
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.
From Ministry of Justice Mental Health Unit website:
From MoJ website:
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.
From Ministry of Justice website:
Insert: Levels of security
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.
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.
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.
An absolute discharge must be granted where:
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.
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)
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:
A conditional discharge must be granted where:
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.
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.
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:
Other conditions often imposed include:
The Tribunal can order that the conditional discharge be deferred until the conditions can be met. See deferred conditional discharge for further details.
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.
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)
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.
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.
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:
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.
These patients are subject to one of the following:
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:
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:
Hospital managers are very similar to Tribunals, with some differences:
According to the Code of Practice 2008:
31.11 Hospital managers:
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.
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.
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 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?).
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):
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)):
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)):
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).
Once a CTO is in place, the following actions can be taken:
The RC can recall the patient if he breaches a mandatory condition (s17E(2)) or if in his opinion (s17E(1)):
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)).
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:
The following page explains the introduction of CTOs, and contains some external links:
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.
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).
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).
The NR can apply to the Tribunal in hospital order cases, and following a barring certificate being issued.
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:
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.
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:
The following changes made by the Mental Health Act 2007 are relevant:
The mental health legislation sometimes applies differently to children.
Related Mental Health Act 2007 amendments:
From DH website:
From Dept for Children, Schools and Familes website:
The CSIP website is dead but the following documents were taken from there:
Links taken from CSIP website:
Ofsted:
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:
These are draft notes.
There are various sources of assistance:
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.]
[N.B. This article is incomplete and requires substantial redrafting. The CLS News, and References, sections should be useful for the time being.]
See Legal Aid News
"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]
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:
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 workLSC, 'Guide to the changes in reporting Civil Legal Help work' (15/4/11) (staged billing)</ref>
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.
The following fees, which were revised on 1 July 2008 for matter starts on or after that date,UNIQ197a1d6e585a916-nowiki-00000018-QINU5UNIQ197a1d6e585a916-nowiki-00000019-QINU are payable:
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):UNIQ197a1d6e585a916-nowiki-0000001B-QINU6UNIQ197a1d6e585a916-nowiki-0000001C-QINU
In relation to withdrawals and reapplications, see Important notice: Operation of section 77(2) MHA 1983 - disregarding withdrawn applications under the Legal Aid paragraph.
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 testedUNIQ197a1d6e585a916-nowiki-0000001E-QINU7UNIQ197a1d6e585a916-nowiki-0000001F-QINU; 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:
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.
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 meansUNIQ197a1d6e585a916-nowiki-00000021-QINU7UNIQ197a1d6e585a916-nowiki-00000022-QINU 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.
All the legal aid forms can be obtained from the Legal Services Commission's website; they change fairly regularly so check there for updates.UNIQ197a1d6e585a916-nowiki-00000024-QINU8UNIQ197a1d6e585a916-nowiki-00000025-QINU A guide to civil application forms is available on the LSC website.UNIQ197a1d6e585a916-nowiki-00000027-QINU9UNIQ197a1d6e585a916-nowiki-00000028-QINU
There are new civil Legal Aid forms which are mandatory from 15/11/10 and which may not be used before that dateUNIQ197a1d6e585a916-nowiki-0000002A-QINU10UNIQ197a1d6e585a916-nowiki-0000002B-QINU (see October 2010 version list).UNIQ197a1d6e585a916-nowiki-0000002D-QINU11UNIQ197a1d6e585a916-nowiki-0000002E-QINU The following have new versions: CLS APP1, 6, 7, 8; CLS MEANS1, 1A, 1B, 1C, 2, 3, 4, & 5; Means Guidance & Checklist (CK3); CLS POA1; CW1, CW1&2 (MH), CW2 (IMM), CW Counsel (MH), CW3A, 3B & 3C; Civil Codes Guidance & Guidance for Reporting Controlled Work. See the description of changes.UNIQ197a1d6e585a916-nowiki-00000030-QINU12UNIQ197a1d6e585a916-nowiki-00000031-QINU
The main ones are:
These are required for judicial reviews and some other matters. The non-family application forms are:
These are required in conjunction with the application forms. The main ones are:
In September 2009 the LSC published an interactive guide to which LSC offices process which types of work. It is regularly updated, the most recent at the time of writing being February 2011. None of the documents makes clear what changes have been made so have fun checking.UNIQ197a1d6e585a916-nowiki-00000033-QINU13UNIQ197a1d6e585a916-nowiki-00000034-QINU
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 following are the five possible ratings:
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:
See also Transaction criteria.
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.
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
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.
Article 5(1), with para (1)(e), states:
Article 5(4) states:
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).
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.
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.
Set out below are links to the various Tribunal rules and a brief summary of them. [Draft notes]
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.
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.
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.
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.
This is governed by rule 14.
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:
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).
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.
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).
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.
The Secretary of State for Health can refer Part II patients at any time (s67(1))
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
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)):
The exceptions are:
The six-month rule does not apply to unrestricted Part 3 patients (see para 157 of Explanatory Notes).
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).
The managers must also make a reference as soon as possible after a CTO is revoked under s17F (s68(7)).
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)).
This page will set out basic psychiatric information which may be useful for lawyers. [Draft notes.]
Schizophrenia, schizoaffective disorder, bipolar affective disorder; personality disorders; learning disability. ICD-10/DSM-IV. See ICD-10
BNF. List and describe common meds. See BNF
Care Programme Approach, risk assessment. Medical professionals and roles.
"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).
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.
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:
Any reference in legislation to "hospital" is then taken to refer to the specified hospital unit instead. This affects the following decisions:
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.
Consider adding information from these pages: