What is a Mental Health Tribunal?
A Mental Health Tribunal, also known as a First-tier Tribunal Mental Health, is independent of the clinical team and hospital where you are detained.
It exists to provide you with the opportunity for arguing for discharge from detention under the Mental Health Act.
The Tribunal has rules that set out how it must function and behave. These rules ensure that the process is fair for you. However, the Tribunal tries to be as informal as possible.
How do I apply for a Tribunal?
You can apply for a MHT at different times depending on which section of the Mental Health Act you are detained under. You may also be referred for a Tribunal.
If you are detained under the Mental Health Act then you will have an ‘application period’. This is the period of time during which you can apply for a Tribunal. It runs either 6 monthly or yearly from the date that your detention began.
How long it takes for the hearing to take place also depends on which section you are detained under.
Section 2 MHA
You can apply only once during the detention under section 2. You must apply before the end of the fourteenth day of your detention. Your Tribunal should be held within 7 days of your application.
If you were too unwell when you were admitted to hospital then it is possible that the Department of Health could refer you for a Tribunal.
Section 3 MHA
You can apply once in the first 6 months, and once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 2 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 6 months.
CTO
You can apply once in the first 6 months, and once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 2 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 6 months.
Section 37 MHA
You cannot apply during the first 6 months of your detention, but you can apply once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 2 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 3 years of your detention.
Sections 37/41 MHA
You cannot apply during the first 6 months of your detention, but you can apply once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 4 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 3 years of your detention.
Section 47 MHA
You can apply once in the first 6 months, and once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 2 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 3 years of your detention.
Sections 47/49 MHA
You can apply once in the first 6 months, and once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 4 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 3 years of your detention.
Notional s. 37 MHA
You can apply once in the first 6 months, and once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 2 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 3 years of your detention.
Conditional Discharge Recall
You will automatically referred for a Tribunal when recalled.
You cannot apply during the first 6 months of your detention, but you can apply once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 4 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 3 years of your detention.
Guardianship Order
You can apply once in the first 6 months, and once in the second 6 months of your detention. After that you can apply once a year. Your Tribunal should be held within 2 months of your application.
You will be referred for a Tribunal if you did not make an application during the first 6 months.
What happens next?
After you have made your application your consultant psychiatrist (Responsible Clinician), your named nurse, and your Social worker/Care Coordinator will prepare reports for the Tribunal. These reports should be sent to the Tribunal Service within 3 weeks of your application. Copies of the reports will also be sent to your solicitor so that you can also read them.
When you go through the reports with your solicitor you will also discuss whether to ask an independent expert for their opinion.
You can submit your point of view in writing to the Tribunal, and you have the right to speak to the Tribunal without anyone else being present.
What happens at the Hearing?
There are three members of the Tribunal panel: a medical member that sits on the Judge’s right; the Tribunal Judge who sits in the middle; and the specialist lay member who sits on the Judge’s left.
You may ask to meet with the medical member before the hearing in private to discuss how you are. This may take place on the day of the hearing, but sometimes it is before then. The medical member will bend Talbot other Tribunal panel members what you discussed, and the Tribunal Judge will tell everyone what was discussed at the start of the hearing.
On your side of the table will be your Responsible Clinician; your Solicitor; you, who will sit opposite the Tribunal Judge; a nurse from the Ward; and your Social Worker/Care Coordinator.
The Tribunal will hear what each person has to say in an order that makes you most comfortable.
Normally the order will be: your Responsible Clinician, the nurse, your social worker/ care coordinator, then you. Your solicitor will help you speak to the Tribunal by asking you questions that are relevant to the issues in your case.
After everyone has explained their point of view, your solicitor will then make submissions on your behalf. The Tribunal will then ask everyone to leave and will make a decision. The Tribunal usually gives their decision on the day of the hearing. They then send a full written decision with reasons within 7 days of the hearing.
What powers do Tribunals have?
The Tribunal is completely independent of the hospital and can make a range of decisions:
- immediate discharge from section;
- Conditional Discharge;
- defer discharge from section;
4) recommendations for leave off the ward, transfer to another hospital, or that the Responsible Clinician consider a Community Treatment Order or guardianship.
Discharge
When considering discharge the Tribunal will ask itself the following questions:
- Are you suffering from a mental disorder?
- Does that disorder by its nature mean that you should be in hospital for treatment?
- Are you suffering from the symptoms of that disorder to such a degree that you need treatment in hospital?
- Is detention justified because the risks to your health are too great if you are discharged?
- Is detention justified because the risks to your safety are too great if you are discharged?
- Is detention justified because the risks to other persons are too great if you are discharged?
Section 2 MHA
When asking the questions above, the Tribunal will ask whether you should be in hospital for assessment as well is treatment. The Tribunal could decide to discharge you on a later date. They would need to specify what date you are to be discharged on. The Tribunal also has discretion to discharge you. However, if the legal test is made out they rarely do this.
Section 3/Section 37 MHA
When asking the questions above, the Tribunal will assume that any assessments are completed and you are only been detained now for treatment. The Tribunal will focus on whether you need to be liable to be detained in hospital, which means that you need not actually be in hospital at that time. For example, you could be on extended section 17 MHA leave. The Tribunal will also ask whether appropriate medical treatment is available for you. The Tribunal could decide to discharge you on a later date. They would need to specify what date you are to be discharged on. The Tribunal also has discretion to discharge you. However, if the legal test is made out they rarely do this.
Community Treatment Order
When asking the questions above, the Tribunal does not need to consider whether you need to be in hospital but simply whether you need to receive medical treatment for the mental disorder. The Tribunal will also ask whether it is appropriate that your Responsible Clinician should have the power to recall you to hospital. The Tribunal could decide to discharge you on a later date. They would need to specify what date you are to be discharged on. The Tribunal also has discretion to discharge you. However, if the legal test is made out they rarely do this.
Guardianship
The Tribunal will ask itself whether you are suffering from a mental disorder, and whether you should remain under guardianship for your welfare or for the protection of others.
Sections 37/41 MHA
If you are detained under sections 37/41 the Tribunal has the power to:
- Grant you an Absolute Discharge;
- Grant you a Conditional Discharge;
- Defer the Conditional Discharge until arrangements are made for your after-care in the community.
When considering discharge the Tribunal will ask itself the questions listed above but they will also ask if it is appropriate that you should remain liable to recall to hospital. If the Tribunal thinks that you should remain liable to recalled then they will grant you a Conditional Discharge. If the Tribunal thinks that you should not remain liable to recalled then they will grant an Absolute Discharge.
If the Tribunal grant you a Conditional Discharge they will also impose conditions that are designed to support you in the community and protect the public from any risks. If the Tribunal granted you a Conditional Discharge but the arrangements for your after-care and placement have not yet been made, then they will defer the Conditional Discharge until the arrangements have been made so that the conditions of the discharge can be met. The Tribunal will not specify what date you are to be discharged on but they have the power to meet again at regular intervals to check why arrangements have not been made.
Sections 47/49 MHA
If you are detained under sections 47/49 the Tribunal does not have the power to discharge you, however, it has the power to recommend to the Secretary of State for Justice that you should be granted a Conditional or Absolute Discharge. If it makes this recommendation then the Tribunal will also recommend whether it thinks you should remain in hospital until released, or be returned to prison. When considering discharge the Tribunal will ask itself the questions listed above and they will also ask if it is appropriate that you should remain liable to recall to hospital as if you were detained under sections 37/41. If they Tribunal recommends discharge for you, then the Secretary of State for Justice will refer you for a Parole Board hearing if you are eligible. The Parole Board will then decide whether you should be released.
Statutory recommendations
If you are detained under section 2, section 3, or a section 37 the Tribunal can make the following recommendations:
- They can recommend that you have leave off the Ward, either short-term or extended;
- They can recommend that you be transferred to another hospital;
- They can recommend that your Responsible Clinician consider whether to place you on a Community Treatment Order or under guardianship.
If the recommendation has not been complied with, the Tribunal may decide to meet again to find out why. When they meet again they again have the power to discharge you.
Contact Georga Godwin: Mental Health Solicitor Oxfordshire, Buckinghamshire, Berkshire
For further information regarding mental health tribunals, please contact Georga using the online contact form or by calling 01865 596717. You can also email Georga on This email address is being protected from spambots. You need JavaScript enabled to view it..
