In May 2017 the Prime Minister made a speech in which she referred to a ‘flawed’ Mental Health Act which often results in detention, disproportionate effects, and forced treatment of vulnerable people.[1]

Studies have shown that two thirds of us experience a mental health problem in our lifetime.[2] Whilst there are many different mental health conditions, not all people who suffer from a mental health condition require detainment under the Mental Health Act 1983 (as amended 2007). When a person is detained under the Mental Health Act, it can be for a variety of reasons, if they have committed a crime and been given a hospital order (section 37/41) instead of going to prison or if they have become unwell in prison and have been transferred to hospital (section 47/49). In other cases, a person can be detained under the Mental Health Act if they have become unwell in the community and require professional treatment in hospital (sections 2 and 3). If a person is detained under the Mental Health Act and they do not agree with this, they are eligible to apply for a Mental Health Tribunal in their own right to contest their section.

What is a Mental Health Tribunal?

A Mental Health Tribunal has a legal duty to adjudicate on whether or not someone is to remain detained under the Mental Health Act.[3] A Mental Health Tribunal gives all professionals the chance to present different views in a formal environment. The burden is on the detaining authority to prove to the Tribunal panel that the patient has a mental disorder of nature and degree and is a risk to themselves, their health or others. The Tribunal panel also need to be satisfied that there the patient can receive appropriate treatment in hospital and being in hospital is the least restrictive option to the patient. The tribunal is not to act as a clinical team. It is a legal hearing governed by procedural rules, not a medical or multidisciplinary case conference. The patient is entitled for legal representation at the hearing and the patient themselves and their legal team are entitled to hear arguments and to challenge them.

What can Solicitor’s help you with?

Under the Legal Aid Agency guidelines, a person is entitled to legal representation for all steps leading up to and including a Mental Health Tribunal. This includes visits, legal documentation preparation, legal advice and legal representation. Whilst a person does not always require legal representation, it is advised to make sure a person has a fair and informative hearing and some cases a person does not have the mental capacity to represent themselves which means a legal representative can be appointed on their behalf under rule 11(7)(b) of Tribunal Rules.

 Your rights as a Nearest Relative of a patient

A Nearest Relative is a family member who has certain responsibilities and powers if a person is detained in hospital under the Mental Health Act. Restricted patients do not have a Nearest Relative.These include the right to information and to discharge in some situations. As a nearest relative, they can write to the hospital to apply for their family member to be discharged within 72 hours. The patient’s responsible clinician (Doctor) has 72 hours to agree or discharge or block it. If they decide to block this, they issue what is called a ‘barring certificate’, this stops the nearest relative from discharging their family member. After a barring certificate is issued, a ‘hospital managers meeting’ is organised. This is a meeting where the managers who are associates of the hospital consider discharge. The managers can agree to discharge, or they can agree to not discharge the patient. In the event the managers do not agree, the nearest relative can apply for a Mental Health Tribunal in their own right within 28 days of the Hospital Mangers Meeting.

How we can help

At Ringrose Law we have a dedicated Mental health department, we can assist those under section or Nearest relatives proving support and advice. Please contact our Boston (01205 311511) or Lincoln (01522 561020) Offices for more information.

[1] The New Law Journal > 2017 Volume 167 > Issue 7766, October > Articles > Mental health law & the case for tribunals (Pt 2) – 167 NLJ 7766, p13


[3] The New Law Journal > 2017 Volume 167 > Issue 7766, October > Articles > Mental health law & the case for tribunals (Pt 2) – 167 NLJ 7766, p13


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