The First-tier Tribunal (Mental Health), commonly known as the Mental Health Tribunal, is a vital part of the legal framework that protects the rights and interests of individuals who are detained under the Mental Health Act 1983 (as amended by the Mental Health Act 2007).
The Tribunal operates in England and is responsible for reviewing cases of individuals subject to certain forms of compulsory treatment for mental health conditions. The primary function of the Mental Health Tribunal is to determine whether an individual should continue to be detained, remain under a community treatment order (CTO), remain conditionally discharged, or be subject to guardianship.
What is the First-tier Tribunal (Mental Health)?
The First-tier Tribunal (Mental Health) is an independent judicial body that deals with applications from individuals who are subject to one of the categories mentioned above. The Tribunal ensures that the detention or compulsory treatment of individuals with mental health conditions is lawful.
Individuals detained in hospital or under compulsory treatment orders can apply to the tribunal for a review of their detention. The tribunal can discharge the person from detention, vary or revoke their community treatment orders or guardianship, or decide that continued detention or compulsory treatment is necessary for their wellbeing or the safety of others. The Tribunal can also make recommendations in some circumstances, as well as vary conditions in some cases.
The Tribunal is also in place to deal with referrals which are made at various intervals if an individual has not applied for a Tribunal but continues to be detained/subject to a community order.
Who can apply to the Tribunal?
Applications to the First-tier Tribunal (Mental Health) can be made by:
- Patients detained under sections of the Mental Health Act, such as:
- Section 2 (for assessment) – patients can apply within the first 14 days of detention.
- Section 3 (for treatment) – patients can apply once during the first six months, then once in the second six months, and annually thereafter.
- Section 37 (hospital order from a criminal court) – patients cannot apply during the first six months of their detention, but they can apply once during the second six months of their detention and annually thereafter.
- Section 37/41 (hospital order with restriction order) – patients cannot apply during the first six months of their detention, but they can apply once during the second six months and annually thereafter.
- Section 47/49 (sentenced prison transfer with restriction direction) – patients can apply once during the first six months, then once in the second six months, and annually thereafter.
- Section 48/49 (prisoner on remand transfer with restriction direction) – patients can apply once during the first six months, then once in the second six months, and annually thereafter.
- Patients subject to a Community Treatment Order (CTO) – they can apply once within the first six months, then once in the second six months, and once every year thereafter.
- Patients under guardianship – applications follow a similar pattern to those under detention.
- The nearest relative of the patient – in certain circumstances, a nearest relative has the right to apply for a tribunal hearing on behalf of the patient.
- Hospital managers – even if a patient does not apply, hospital managers have the power to refer a case to the tribunal for review.
Who can not apply to the Tribunal?
Not all patients detained under the Mental Health Act can apply to the First-tier Tribunal (Mental Health). You cannot apply if you are detained under:
- Section 5 (emergency holding powers) – this is a temporary section (up to 72 hours for doctors or 6 hours for nurses) used to prevent a patient from leaving the hospital while an assessment is carried out. Since it is short-term, tribunal applications are not applicable.
- Section 135 or Section 136 (police powers) – these sections allow the police to take a person to a place of safety for a mental health assessment. They last for a maximum of 24 hours (extendable to 36 hours in certain cases), so a tribunal hearing isn’t relevant.
- Court-ordered remand sections – if someone is detained under a section ordered by the court while awaiting trial or sentencing, they cannot apply to the tribunal themselves because their detention is part of criminal proceedings.
If you are under Section 4 (Emergency Admission for Assessment), you may apply, but a tribunal hearing will only take place if your section is converted into a Section 2.
Tribunal Hearing Process
First-tier Tribunal hearings are judicial processes and generally take place in a hospital where the patient is being detained, although virtual hearings are also common. The tribunal panel is made up of three members:
- A legal member (judge): This person ensures that the tribunal process follows the law and that the patient’s rights are upheld.
- A medical member: Usually a psychiatrist, this panel member provides medical expertise on the patient’s condition.
- A specialist lay member: This is an individual with expertise in mental health services or relevant experience who brings a non-professional perspective.
The tribunal hearing typically follows these stages:
- Presentation of Evidence: Evidence is submitted from medical reports, social workers, and other relevant parties. The patient and their representative (often a solicitor) can present evidence supporting their case.
- Questioning: The tribunal panel members ask questions of the patient, the responsible clinician, and others to gain a clear understanding of the situation.
- Discussion: The tribunal panel discusses the evidence in private before making a decision.
- Decision: The tribunal delivers a decision, which could include the discharge of the patient, continuation of the detention or order, or recommendations for changes in treatment.
What are the grounds for discharge?
The Tribunal will only discharge a patient from detention or a CTO if it finds that the criteria for detention or the order are no longer met. Grounds for discharge include:
- The patient is no longer suffering from a mental disorder of a nature or degree that makes detention necessary.
- Detention is no longer necessary for the patient’s health, safety, or for the protection of others.
- Adequate care can be provided outside the hospital setting.
How long does the Tribunal process take?
The timeframe for First-tier Tribunal applications varies depending on the section under which the patient is detained:
- For patients detained under Section 2 (for assessment), a hearing must take place within 7 days of the application
- For patients detained under Section 3 (for treatment), the Tribunal must hear the case within 8 weeks
- In restricted cases, the Tribunal must hear the case within 10-12 weeks.
Patients can apply for a tribunal review at regular intervals, depending on the type of order or detention they are under.
Contact a Specialist Mental Health Lawyer
Legal aid is available for such cases, meaning that patients can be legally represented and do not need to pay for legal representation. If you would like help or advice on the First-tier Tribunal (Mental Health) or with any issues relating to mental health matters, please do not hesitate to contact a one of our specialist Mental Health Solicitors or get in touch on 020 8492 2290.
