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 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 (or CTO or guardianship, etc) under the Act continue to exist. The panel consists of three members: the medical member, usually a consultant psychiatrist; the legal member (a lawyer, often a judge in restricted cases); and a lay member. From the patient's perspective, looking across the table, the medical member is on the left, the legal member is in the centre, and the lay member is on the right.

Structure

The tribunals service

The Tribunals, Courts and Enforcement Act 2007 (TCEA) changed nearly the whole Tribunals system in England. There are now two tiers of Tribunal.

In England, the First-tier Tribunal (Health, Education and Social Care Chamber) (Mental Health), commonly known as the Mental Health Tribunal, took over from the Mental Health Review Tribunals. The TCEA does not affect Wales, so the Tribunal remains the Mental Health Review Tribunal for Wales.
The second tier is called the Upper Tribunal. Appeals from the English MHT and the MHRT for Wales are both taken to the Upper Tribunal (Administrative Appeals Chamber).

The Tribunal is supported by a secretariat in Leicester, including registrars who are magistrates’ clerks seconded to the Tribunal. The email address for complaints is officialcorrespondence@hmcts.gsi.gov.uk. There is a document setting out the standards expected of hospitals (HMCTS, ‘Minimum requirements for tribunal hearings to be held in hospitals’ (11/4/18)).

Panels

The Tribunal is comprised of three members – a legal chairman with medical and specialist lay wing members – and makes decisions either by unanimity or majority (First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008; see also Practice Statement: Composition of Tribunals in relation to matters that fall to be decided by the Health, Education and Social Care Chamber on or after 18/1/10).

In the Ministry of Justice’s ‘Transforming our justice system’ consultation document it was proposed to amend the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 to give the Senior President of Tribunals (SPT) “greater freedom to adopt a more proportionate and flexible approach to panel composition”, by (a) providing that a tribunal panel in the First-tier Tribunal is to consist of a single member unless otherwise determined by the SPT; and (b) removing the existing requirement to consider the arrangements that were in place before the tribunal transferred into the unified system. Following the consultation, the government will proceed with proposal (b) as the existing requirement is “an unnecessary restriction to the SPT to base decisions on what is the most appropriate and proportionate approach”, but will not proceed with proposal (a) because of concerns arising from “the assumption that this will apply in all cases” (although it appears that this concession is not intended to make any difference in practice). To this end, the Order will be amended so that that “the SPT may provide that a panel should consist of one, two or three members, as required, in order to determine the matters before the tribunal justly and fairly”. The consultation response envisages that the SPT will consult with both the tribunal judiciary and wider stakeholders before making any changes to panel composition.

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 has the power to discharge if the criteria for detention are no longer met (see s72, s73 and s74).

If a Tribunal knows for sure – and it is accepted by the hospital, or decided by the court – 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.

The Tribunal’s statutory role is only to consider 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^M at [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 – without waiting for a Tribunal hearing. 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.

External links

Main pages

Gov.uk: First-tier Tribunal (Mental Health)

Gov.uk: Guidance: Mental Health Tribunal contact details for professionals. Contact details can also be found on the following MHLO page: Contact:Mental Health Tribunal

Gov.uk: Apply to the Mental Health Tribunal

Gov.uk: Make a victim representation to the Mental Health Tribunal

MHT/MOJ protocol

See Ministry of Justice#MOJ/MHT Protocol

Minimum requirements

Mark Hinchliffe and Zoe Blake, 'Letter to all Hospitals regarding our Minimum Requirements' (11/4/18) — This is a covering letter for HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18).
HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18) — This document states that "[a] hearing room is as essential to a psychiatric hospital as an operating theatre is to a surgical hospital" and that if hospitals do not adhere to the minimum requirements or obtain a written exemption then the tribunal "may consider holding its judicial hearings elsewhere". The main headings are (1) Minimum standards of safety and security, and (2) Minimum requirements for facilities and amenities.

Complaints procedure

Gov.uk website: HMCTS: Complaints procedure†. The complaints email address used to be officialcorrespondence@hmcts.gsi.gov.uk (check if still current). Chamber President's office email: presidentsoffice.HESC@hmcts.gsi.gov.uk