The Mental Health Tribunal Hearing
Find out more about what to expect at a Mental Health Tribunal, including legal representation, interpreters and the rights of victims.
Who hears the case?
There are three people on a Mental Health Tribunal: a Tribunal Judge who is legally qualified, a psychiatrist and a specialist member who has mental health expertise. The Judge will chair the proceedings. None of the panel members have any connection with the hospital or community services involved with the patient; they are independent.
Free legal representation is available to all patients who have a case before the Mental Health Tribunal. This is regardless of the patient’s financial circumstances. Hospitals are able to provide a patient with a list of specialist legal representatives who will be members of the Law Society mental health panel (external link). They will be specialists who are used to representing patients at the Mental Health Tribunal. Information about legal representation can be found by asking the Mental Health Act Administrator at the Responsible Authority. If a patient does not have a legal representative but wants one, the Tribunal can find one to act on their behalf. The patient can fill in a form (PDF) asking the Tribunal to do this. There are other circumstances when a Tribunal might appoint a representative to act on a patient’s behalf.
Foreign language Interpreters and British sign Language (BSL) interpreters are available to assist patients at Mental Health Tribunal hearings. If a patient requires an interpreter and the application form (external link) has already been completed, the administration team should be contacted straight away: include all the relevant information such as the patient’s name, date of birth and Tribunal Reference Number (which will begin with MP, MH or MM) in your correspondence.
When will the case be heard?
There is guidance as to when a hearing will take place. For patients detained under Section 2 of the Mental Health Act the hearing must take place within seven days, for non restricted patients it will normally take place within two months, and for restricted patients it will normally take place within three months.
Before the hearing:
A patient is sometimes examined by the Tribunal doctor before the hearing date. This is called a pre-hearing examination (PHE) (external link). If the patient is admitted under Section 2 of the Mental Health Act this will be automatic following an application unless the patient says they do not want to meet the Tribunal doctor. In all other cases the patient must ask to be examined (PDF), they must do this at least two weeks before the hearing takes place, although occasionally a late request for PHE maybe allowed. You can read the rules about PHE’s online (PDF). Currently because of the COVID-19 pandemic, all pre-hearing examinations take place remotely over the internet. If the patient is living in the community their care coordinator or social supervisor will help arrange this meeting.
Where will it take place?
Hearings usually take place in the hospital where the patient is detained. A hearing for a community patient will take place in a suitable venue, for example an outpatient centre where the community/supervising team are based. If the patient is on Community Treatment Order the hearing might take place at the supervising hospital.
Since the COVID-19, Tribunal hearings have been held by way of a video hearing (PDF) over the Internet. These are called remote hearing (external link)s (external link). Participants join the hearing using a video link which is provided before the hearing. Some rules apply: the participants to the remote hearing must be in a private place where they cannot be overheard, and they must confirm that they are not recording the hearing. Occasionally a participant might join a hearing by telephone. You can find out more about what to expect at a remote hearing.
If a patient is over 18 years, and on a Community Treatment Order which has been referred (external link) to the Mental Health Tribunal they can invite the Mental Health Tribunal to deal with their case by reading the reports if the patient decides that they do not want to attend the hearing. If the Tribunal agree, there will not be a face to face hearing. The patient or their representative can fill in a form and invite (PDF) the Tribunal to deal with the hearing in this way.
What happens at a hearing?
The Mental Health Tribunal hearings are court proceedings, however, they are usually more flexible and less formal than other courts. All courts strive to treat people fairly and with respect. You can read more about the policy online (external link).
Before the hearing takes place, the patient/their representative and the Tribunal panel will have received written reports usually from the patient’s doctor, the nursing team and the social work team responsible for the patient’s care in the community. There is important guidance about what information these reports must contain. The Tribunal panel will have read all the written reports they have received. This might include any independent reports which the patient or their representative has arranged, such as an independent psychiatric report.
The hearing is usually private, this means that members of the public and people who are not parties to the hearing cannot usually attend. A nearest relative (PDF) will only be a party, and have a right to attend, if they have made the application to the Tribunal. The Tribunal has the power to admit someone to the hearing who is not a party such as an Independent Mental Health Advocate (IMHA (external link)) or a family member. The panel will ask the parties for their views before making a decision.
Some victims (external link) of certain types of offences committed by a person now detained under the Mental Health Act, have rights regarding Mental Health Tribunals, this includes the right to make certain representations. Victims do not have a right to attend the hearing. There is guidance about how victims representations are handled by the Tribunal.
At the hearing, the patient’s doctor, a member of nursing team and the patient’s care coordinator are usually required to give evidence, although this depends on whether the patient is detained in hospital or living in the community. The Tribunal panel and the patient’s representative will ask the witnesses questions. Although patients do not have to attend the Tribunal hearing, most patients do attend. If a patient attends, they usually give evidence and then they might be asked questions by the Tribunal panel. However, the patient does not have to give evidence if they do not want to do so.
At the end of the hearing, the Tribunal panel will ask everyone to leave the hearing and they will make their decision in private. This is usually announced straightaway. The Tribunal have the power to discharge a patient on the hearing day or in the near future. They have other powers which will depend on what section of the Mental Health Act (external link) the patient is detained under. In some cases, the Tribunal can make recommendations to facilitate discharge such as transfer to another hospital or leave, or it can grant discharge to the community but under a legal framework. After the hearing the Tribunal must send written reasons for the decision they have made. There are time limits which they must comply with: the written reasons must be prepared within three days if the patient is detained under section 2 of the Mental Health Act, or within seven days in all other cases.
A patient has the right to ask for an appeal against a decision made by a Mental Health Tribunal. They must make an application within a specified timeframe and the correct forms should be used when applying for a decision to be set aside (external link) or for permission to appeal (external link).