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.
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). The previous text in this paragraph should be read in the light of the more recent case of PJ v A Local Health Board (2015) UKUT 480 (AAC), (2015) MHLO 63 in which it was held that the tribunal must take into account whether the implementation of the conditions of a CTO will or may create a breach of Article 5 or any Convention right (that principle would extend beyond CTO cases).
- HMCTS, 'Contact Details for Leicester Secretariat' (dated 2/2/14, emailed 29/12/14)
- An email address not in the above document: firstname.lastname@example.org (for all enquiries regarding relisting a case).
- A circular email from the Tribunal secretariat dated 2/12/14 contained the following information: (1) from 1/1/15 three reports-related email addresses (email@example.com, firstname.lastname@example.org and email@example.com) will cease to function; (2) all reports and related enquiries (such as extension, directions and order requests) should instead be sent to firstname.lastname@example.org
- The email for complaints is email@example.com
Mental Health Tribunal website - transition to GOV.UK
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)
- 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 - 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...'
- Mark Hinchliffe, 'Seasons Greetings' (17/12/15). This emailed Christmas card incorporates the following exhortation: "It is a legal requirement that all reports must fully comply with the Senior President’s Practice Direction: Statements and Reports in Mental Health Cases ... There is a separate list for each type of case, and each professional discipline. Professionals should print off and laminate or keep safely those lists that relate to their discipline and keep them in their office so that, in future, all reports are submitted on time, and comply with the law. Under rule 15(2)(b) the tribunal can exclude any report that does not comply with the Senior President’s Practice Direction." (original emphasis)
- "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.
- 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.'
- 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%.
Phil Fennell et al, Mental Health Tribunals: Law, Policy and Practice (Law Society, 2013)