Most people who are detained under the Mental Health Act (sectioned) have a right to appeal against that detention. We hold accreditation under the Law Society’s Mental Health Accreditation Scheme to advise and represent in relation to the following issues.
Mental Health Tribunal
A person can only continue to be detained under the Mental Health Act if the legal criteria for that detention apply. The Tribunal is an independent body which hears evidence from the patient and the clinical team then makes a decision about whether the detention should continue.
The Tribunal has the power to discharge a person from detention when they are detained under a “civil” section. However, the Tribunal has fewer powers in some cases where the person was detained under the Mental Health Act as a result of criminal proceedings or a transfer from prison. The rules about how often a person can apply to the Tribunal vary depending on the section of the Mental Health Act that they are detained under.
We hold a contract with the Legal Aid Agency and representation at Tribunals attracts non-means tested legal aid. This means that a detained patient does not need to pay for a solicitor to represent them at a Tribunal.
Hospital Managers’ Hearings
Hospital Managers also have the power to discharge people from detention under the Mental Health Act. Hospital Managers consider a patient’s case when detention is renewed, the patient applies to them to consider their case or a nearest relative has attempted to direct discharge and this has been barred.
Representation at Hospital Managers’ Hearings is available under legal aid, subject to a means test.
Community Treatment Orders (CTO)
When a person has been detained under the Mental Health Act, their responsible clinician (psychiatrist) can discharge them onto a Community Treatment Order (CTO). The CTO imposes conditions on the person, e.g. that they should live in a certain place or take their prescribed medication.
A CTO has the power of recall, meaning that the person can be recalled to hospital if their condition deteriorates. If their responsible clinician thinks they need further hospital treatment, the CTO can be revoked altogether. Where a CTO is revoked, the person reverts to being detained.
As with detention under the Mental Health Act, a person subject to CTO has the right to apply to the Mental Health Tribunal or Hospital Managers to request that they are discharged. Where a CTO is revoked, a Mental Health Tribunal will take place even where the patient does not ask for it.
The nearest relative under the Mental Health Act is a relative with certain powers in relation to the patient’s detention and their discharge. These powers include:
- The power to object to the patient’s detention;
- The power to direct that the patient is discharged from detention;
- The right to receive certain information and be consulted.
The power of the nearest relative depends on which section of the Mental Health Act the patient is detained under. In some circumstances where the nearest relative directs discharge, the responsible clinician has the power to bar (overrule) that decision, this is likely to trigger a Hospital Managers’ Hearing. In those circumstances, the nearest relative may also have their own right to apply to the Tribunal. Again, this depends on which section of the Mental Health Act the patient is detained under.
If there are concerns about the actions of a nearest relative, an application can be made to the County Court to displace them from that role.
Legal Aid is available to nearest relatives. This is usually subject to a means test except where they have the right to apply the Tribunal, where non-means tested legal aid is available.
In certain circumstances we can assist with other matters that arise under the Mental Health Act, including:
– Challenging decisions that are made about care and treatment after detention (section 117 aftercare);
– Appeals to the Upper Tribunal where there is a right to appeal the decision of the Mental Health Tribunal;
– Mental capacity – Court of Protection Health and Welfare Disputes
– Deprivation of Liberty Safeguards (DOLS)
If you would like further information about our services or your eligibility for legal aid you are welcome to contact
Eilish Ferry-Kennington on 0191 731 4626 or our main number on 0191 500 6989.