Mental health & capacity
- Deprivation of liberty and The Court of Protection
- Health and welfare decisions at the Court of Protection
- Representation at mental health tribunals
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Representation at a mental health tribunal
A mental health tribunal is a type of court which decides cases concerning people who have been made subject to compulsory orders under the Mental Health Act.
Our experienced lawyers, who are accredited members of the Law Society’s Mental Health Tribunal scheme, can advise on all issues which may arise at tribunal hearings in respect of the following orders:
- Detention for Assessment (section 2 order)
- Detention for Treatment (section 3 order)
- Community Treatment Order (CTO, section 17A)
- Hospital and Restricted Hospital Orders (section 37/41)
- Transfers to Hospital and Restriction Orders (section 47/49).
See the relevant section below for further details.
Detention for Assessment (section 2 order)
This is a civil admission for assessment and lasts for a maximum of 28 days. It cannot be renewed, so will lapse at the end of the period though you can be placed under a section 3 detention for treatment instead at any time.
You can be discharged by the following routes.
- The Responsible Clinician (RC) can discharge you at any time.
- You can apply to the Mental Health Tribunal during the first 14 days of your detention. Your hearing must be held within 7 days.
- You can apply for a Hospital Managers’ Hearing (HMH) at any time though whether this takes place before the section ends will depend on the hospital’s efficiency/policy.
- Your Nearest Relative (NR) can request your discharge which will result in considerations of dangerousness rather than the standard criteria.
Detention for Treatment (section 3 order)
This is a civil admission for treatment and lasts for a maximum of 6 months. It can be renewed for a further period of 6 months and, after that, for further periods of 12 months.
You can be discharged at any time using the same routes as in detention for assessment under section 2 except that when you apply to the Mental Health Tribunal, the Tribunal’s target is to hold your hearing within 5 weeks, though it usually takes 5-8 weeks.
Community Treatment Order (CTO, section 17A)
If you are detained in hospital for treatment for a mental disorder, and meet certain criteria, you may be eligible to be considered for Supervised Community Treatment (SCT) if an Approved Mental Health Practitioner agrees that this is appropriate.
While living in the community, you will be subject to the powers of the Mental Health Act 1983 and to specific conditions, relating to your individual circumstances, which form part of the Community Treatment Order made by your Responsible Clinician, designed to ensure that you receive medical treatment and prevent risk of harm to yourself or others.
You may be recalled to hospital for treatment should this become necessary. After such treatment, you may resume living in the community or, if you need to be treated as an in-patient again, your Responsible Clinician may revoke your Community Treatment Order and you will remain in hospital.
Hospital and Restricted Hospital Orders (section 37/41)
A hospital order is similar to detention for treatment under section 3 but is imposed by the Crown Court instead of a prison sentence, if you are so mentally unwell at the time of sentencing that you require hospitalisation. The court will also impose a restriction order (s41) if necessary, to protect the public from serious harm and this would affect your leave of absence and transfer between hospitals, both of which require Ministry of Justice permission.
Like a detention for treatment order, the hospital order has a maximum duration of 6 months and can be renewed for a further period of 6 months and, after that, for further periods of 12 months.
Under section 37 your routes to discharge from a hospital order are the same as for a detention for treatment. However, if you also have a section 41 restriction order, your routes to discharge are more limited:
- You can apply to the Mental Health Tribunal after the first six months of detention. The tribunal’s target is to hold your hearing within 14 weeks, though it usually takes 4-5 months.
- The Ministry of Justice can discharge you at any time and though relatively rare, this would usually be at the request of your Responsible Clinician.
Transfers to Hospital and Restriction Orders (section 47/49)
A transfer to hospital order under section 47 is very similar to a hospital order under section 37 but applies if you are already a serving prisoner. This order is made by the Ministry of Justice.
Your routes to discharge are the same as from a section 37 hospital order.
The restriction order under section 49 operates in the same way as a hospital restriction order under section 41. You can be transferred back to prison at any time, on medical advice or on the recommendation of the Mental Health Tribunal. Like a hospital restriction order your limited routes to discharge are:
- Your application to the Mental Health Tribunal after the first six months of detention. The Tribunal’s target is to hold your hearing within 14 weeks, though it usually takes 4-5 months.
- The Ministry of Justice can discharge you at any time and though relatively rare, this would usually be at the request of your Responsible Clinician.
Different rules apply to life sentence prisoners transferred under section 47/49 and our lawyers can advise about these where necessary.
Funding for legal advice or representation
Miles & Partners has a Mental Health contract awarded by the Legal Aid Agency. Representation in relation to a Mental Health Tribunal does not require an assessment of the patient’s income and assets. Any other advice may require such an assessment.
Once we understand your circumstances, we will advise what funding might be available and discuss which payment options might work best for you if legal aid is not possible.
