Mental Health Tribunal Appeals

The right to apply to the Mental Health Tribunal varies by the type of detention:

• Section 2: The patient can apply within the first 14 days of detention. There is no right to a second application under Section 2 as it lasts a maximum of 28 days.
• Section 3: The patient can apply once during the first 6-month period, and once during each subsequent renewal period (6 months, then annually).
• Community Treatment Order (CTO): The patient can apply once during the first 6-month CTO period and once during each subsequent period.
• Nearest relative: Where the nearest relative has been displaced or has applied for discharge which has been barred, they have their own right of application to the Tribunal.

Additionally, the hospital managers have an automatic reference duty — if a patient has not exercised their right to apply in a specified period, the managers must refer the case to the Tribunal.

Legal aid is automatically available for patients applying to or appearing before a Mental Health Tribunal in England. This means:

• There is no means test for legal aid in these proceedings — it is available regardless of income or savings.
• A solicitor who specialises in mental health law will represent you — either appointed by you or by the Law Society's mental health panel.
• The solicitor will review your case papers, meet with you before the hearing, help you prepare your account, and represent you at the hearing.
• You do not pay for the solicitor's services for Tribunal proceedings.

Contact the Law Society at lawsociety.org.uk or ask your IMHA to help you find a mental health law solicitor. The Rethink Mental Illness legal advice service can also provide referrals.

A typical Mental Health Tribunal hearing:

1. The panel reads the written evidence — your Responsible Clinician's report, a social circumstances report from your social worker, and any report from nursing staff.
2. The panel member (a psychiatrist) conducts a medical examination of the patient before the hearing.
3. The hearing takes place in private (usually in the hospital). Witnesses — typically the RC and social worker — give evidence and can be questioned by your solicitor.
4. You are given the opportunity to give evidence and your solicitor makes submissions on your behalf.
5. The panel deliberates and gives a decision — which may be given orally at the hearing or in writing shortly afterwards.

Hearings under Section 2 must be heard within 7 days of receipt of the application. Section 3 hearings have a target of 8 weeks.

The Tribunal has a range of possible decisions:

• Discharge: If the Tribunal is satisfied that the detention criteria are not met (or are not met in a way that justifies continued detention), it must discharge the patient. Discharge is mandatory, not discretionary, where the statutory test is not met.
• Deferred discharge: The Tribunal can defer discharge to a specified future date to allow time for aftercare arrangements, suitable accommodation, or a CTO to be put in place.
• Conditional discharge (restricted patients): For patients subject to restriction orders (typically following criminal proceedings), conditional discharge is available with specified conditions.
• Recommendation: Even if the Tribunal does not discharge, it can make non-binding recommendations — for example, that the patient be given leave of absence or that a CTO be considered.