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Mind rights guide 4: Discharge from hospital
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Introduction
If I am detained in hospital, who can tell me my rights?
Can I appeal against the decision to detain me?
If I want to leave, how can I apply to be discharged from hospital?
When will my RMO discharge me from being detained?
Who else can I ask to discharge me?
What is the Mental Health Review Tribunal?
Who can apply to the tribunal, and when?
What will happen before the hearing?
What powers does the Mental Health Review Tribunal have?
What are my Nearest Relative's rights?
If I am discharged from section, will I have to leave hospital?
What should happen before I leave hospital?
Application form for the Mental Health Review Tribunal
Legal definitions
Useful organisations
Further reading
Introduction
This booklet is designed to answer some of the more common questions that concern discharge from detention in a psychiatric hospital or ward under the
Mental Health Act (MHA) 1983. It should be helpful to users of mental health services, their relatives and friends, as well as to service-providers working in the statutory and voluntary sectors. It is not, however, a substitute for a statement ofthe law or for legal advice.
Public funding may be available to pay for professional advice from a solicitor. This is means-tested (so it depends on your income and savings) for most purposes, but appeals to the Mental Health Review Tribunal (the tribunal) are free to patients. If you want advice from a solicitor who has knowledge of mental health law and issues, contact Mind, which has a legal network of local solicitors. Each hospital ward should have a list of specialist mental health lawyers in the local area.
The Law Society website lists solicitors who are qualified to provide tribunal representation. The Community Legal Service Directory lists local solicitors who provide specialist help in different areas of law, including Mental Health Review Tribunal representation. The Directory is available in libraries and is also on the internet. (See Useful organisations for addresses and further information.)
Legal terms, as they appear in the Mental Health Act (MHA) 1983, are hyperlinked to their legal definition when they are used for the first time in this booklet (subsequently, they appear in ordinary type). Some people find these terms inappropriate, even offensive, but they are used here for the sake of legal accuracy. The definitions are set out below. To keep the guide as straightforward as possible, we have kept technical terms to a minimum and have summarised the effects of the law and good practice, where appropriate. Where we use section numbers, they are from the MHA.
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If I am detained in hospital, who can tell me my rights?
The Mental Health Act Managers (the managers) must ensure every effort is made to inform you of your rights. The psychiatrist in charge of your treatment, known as your Responsible Medical Officer (RMO), a nurse, the hospital’s Mental Health Act Administrator, or your social worker should give you written information about the MHA and help you answer questions you may have about your detention. Most hospitals have access to an independent advocate, who can explain your rights to you. You are also entitled to consult a solicitor to discuss your options, free of charge.
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Can I appeal against the decision to detain me?
An appeal would mean that you were arguing that the detention should never have happened in the first place.
To do this, you would have to prove the detention was unlawful, because the legal criteria were not fulfilled at the time of your detention, or because there were errors in the sectioning documents. If this is the case, you should consult a solicitor as quickly as possible. You may believe that you were not ill enough to be sectioned but, in practice, it is very hard to prove that the professionals were wrong to detain you. If the detention is lawful, there are still ways in which you can have the need for the detention reviewed.
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If I want to leave, how can I apply to be discharged from hospital?
You have several rights, which you can assert separately or all at once. How many options you have depends on the section you are detained under.
You can normally ask your RMO or the managers to discharge you. In addition to this, nearly all detained patients are entitled to apply to the Mental Health Review Tribunal. Your Nearest Relative (NR) can also ask the hospital to discharge you, unless you were sectioned by a criminal court. Each of these options is explained more fully below. (See Legal definitions.)
If you are subject to a 'restriction order' from a court, the permission of the Home Secretary must be obtained before your RMO or the managers can discharge you. A tribunal can discharge a restriction order (a '37/41'), but if you have been transferred from prison on a 'restriction direction' the tribunal can only recommend to the Home Secretary that you be discharged. Where the court has remanded you to hospital, only the court has the power to discharge you.
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When will my RMO discharge me from being detained?
Guidance to the Mental Health Act 1983 states that your RMO should discharge you from section as soon as it is no longer necessary to detain you. When that is depends on which section of the Mental Health Act 1983 you are detained under, and on other circumstances, such as what your RMO thinks about your health.
Good practice suggests that when you go into hospital a care and treatment plan should be agreed with you. It should include what assessment is going to be made and what treatment is considered appropriate. Guidance also suggests that you should not be discharged from section or from hospital by your RMO until arrangements have been made for your continuing care in the community. Ask what progress your RMO and social worker are making in organising this.
The care plan can also be used to inform the managers and staff when they review your detention. This means it is important that your care plan is drawn up as soon as possible and that you insist your views are listened to.
In practice, the availability, or not, of aftercare services may slow your discharge from detention. You must seek independent advice as soon as possible if this happens.
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Who else can I ask to discharge me?
You can ask the Hospital Managers for a hearing. They are non-executive directors of the NHS trust or directors of the private hospital where you are detained. The managers may delegate their powers to other people who have particular interest and experience in mental health services.
The managers have the power to discharge
you from some sections (but see restriction orders and restriction directions above). They can decide whether it is appropriate to give you a hearing. Managers are not independent of the hospital, and since they all owe you a duty to ensure your health does not deteriorate, they will probably be cautious in their decision.
If you want a friend, advocate or solicitor to help you at a managers’ hearing, then this should be encouraged. Public funding is not available for you to be represented, but your solicitor may be able to attend if, for example, it is in preparation for the tribunal.
There are other advantages to asking the managers to hear your case. They have influence over how the service is run and can make recommendations about your care. If there is anything concerning you that is relevant to your detention on the ward, or if your care plan or treatment is not satisfactory, then inform them.
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What is the Mental Health Review Tribunal?
The tribunal is a panel that visits the hospital. It is completely independent of the hospital. You have a right to apply to the tribunal, and staff will not be surprised if you do.
The tribunal will use the information before it, and legal criteria contained in the MHA, to decide whether you should continue to be detained.
The tribunal will consist of: a chairperson (the president) who will be a lawyer; a medical member, who will usually be a psychiatrist; and another person with knowledge of mental health services. (The address of the tribunal offices can be found under Useful organisations.)
Remember that you have the right to free representation from a specialist mental health solicitor (see above).
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Who can apply to the tribunal, and when?
You can apply to the tribunal yourself, or your solicitor can do this on your behalf. Your NR can also apply sometimes. There is no fixed form of application. At the end of this booklet you will find a suggested form of words, which you may find helpful.
Applications to the tribunal are governed by complex rules contained in the MHA (see Useful organisations and Further reading for sources of advice, or consult your solicitor). Hospital staff should inform you about your rights. If you are in any doubt, ask the hospital advocate or consult a solicitor.
People detained for less than 72 hours under a hospital’s 'holding powers', or who have been taken in by the police and are waiting for an assessment, can't apply to the tribunal. If you were detained as an emergency under section 4 of the MHA, you can only apply to a tribunal if you are then moved on to section 2. People who have been remanded to hospital by a court can't apply either.
If you are detained for longer than 72 hours you can apply to a tribunal, but your rights depend on the section you are detained under. If you are on section 2, which can't be renewed, you must apply within 14 days; if you do, there must be a hearing within one week. If you are on section 3, you can apply any time, and your hearing should be arranged within a maximum of eight weeks of your application. You can make a further application each time your section is renewed. The same applies if you have been transferred from prison to hospital, but are not subject to a restriction direction.
If you have been sent to hospital by a criminal court (section 37 or 37/41), or have been transferred from prison on a restriction direction, you have to wait six months before you can apply, but you can then make an application each time your section is renewed. There is no time limit on arranging a hearing in these cases, but you can challenge an unreasonable delay.
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What will happen before the hearing?
A doctor and a social worker will produce reports, and copies will be sent to you or your solicitor and to the tribunal office. Your solicitor will discuss these with you and possibly instruct a doctor to make an independent report on your behalf.
The medical member of the tribunal will meet you before the hearing, in order to form a view on your mental health, for the benefit of the tribunal. You will be told what their view is at the beginning of the hearing.
The hearing itself will be more informal than a court. The president should make every effort to make you feel as comfortable as possible. Everybody present will have the opportunity to have their say and ask questions of the others. The president decides the order of the questions. The tribunal will decide whether your detention should continue. The decision may be given to you soon after the hearing, or it will be posted to you a few days afterwards.
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What powers does the Mental Health Review Tribunal have?
This also depends on what section you are detained under. The detailed rules are quite complex, but generally the tribunal has the following powers:
- If you are not restricted, the tribunal can discharge you immediately or set a later date for discharge.
- If you are restricted and were not transferred from prison, the tribunal can still discharge you immediately, but is more likely to give you a 'conditional discharge'. This means that you can be recalled to hospital if the conditions they impose are broken or you become unwell.
- If you were transferred from prison and are restricted, the tribunal can only recommend the Home Secretary to discharge you.
- If you are not discharged, the tribunal may also make recommendations regarding your future care, whether formal or informal, though it can’t enforce them.
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What are my Nearest Relative's rights?
Your Nearest Relative (NR) has the right, if you are detained under sections 2 or 3, to give notice that they wish to discharge you. They must do this in writing and address it to the managers. This notice does not have immediate effect: your RMO has 72 hours within which he or she can 'bar' the discharge by writing to the managers stating that, in his or her opinion, you are likely to be a danger to yourself, or others, if discharged. If the RMO does this, your NR can't discharge you from hospital, and can’t try again for six months.
If you are on section 3, your NR can apply to the tribunal and argue that you should be discharged because you would not be a danger to yourself, or others, if discharged. Your NR can also apply to the tribunal if you have been ordered to hospital by a court, but must wait for six months before doing so.
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If I am discharged from section, will I have to leave hospital?
You don't have to leave hospital. You can remain as an informal patient. Your RMO should discuss the situation with you, since your treatment plan may change because it can't be imposed on you under the MHA.
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What should happen before I leave hospital?
Once discharged, you are free to leave, but an aftercare meeting should take place. Guidance says planning for aftercare should take place before the hearing, if you apply to the tribunal.
There are different names for this type of care planning, such as 'care programming', 'care management' and 'aftercare'. Whatever professionals call the meeting, it should make no practical difference to the arrangements.
Section 117 of the MHA gives you a right to aftercare if you have been detained under sections 3, 37 or 45A, or have been transferred from prison under section 47 or 48. However, your care team are allowed to assess what services they think you need. Aftercare services provided under section 117 are free of charge.
You should attend the meeting, if you want to, and make clear to the professionals concerned what services you would like when you return to the community. Take a friend or an advocate, if that is helpful to you. If you disagree with what you are being offered, seek advice, as you may have to use a complaints procedure. (For more information, see Mind rights guide 6: community care and aftercare.)
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Application form for the Mental Health Review Tribunal
Application form for the Mental Health Review Tribunal (PDF file)
Information on viewing PDF files
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Legal definitions
Hospital – for the purposes of this booklet, this includes Mental Nursing Homes registered to receive detained patients, private hospitals and psychiatric wards.
Mental disorder – 'mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind'. The four forms are mental illness, mental impairment, psychopathic disorder and severe mental impairment (see individual entries for definitions).
Mental Health Act 1983 (MHA) – the main Act of Parliament setting out the law connected with the treatment of mental disorders.
Mental Health Act Code of Practice – government guidance to professionals, which they are expected to follow in carrying out their duties under the MHA.
Mental Health Act Commission (MHAC) – the government agency responsible for the welfare of detained patients.
Mental Health Act Managers (the managers) – the non-executive directors of NHS trusts or directors of a private hospital. They are responsible for administration of the use of the MHA in the hospital and for hearing patients' applications to be discharged.
Mental Health Review Tribunal (the tribunal) – an independent panel that decides if a patient should be discharged from compulsory detention or supervision.
Mental illness – one of the four forms of mental disorder. It is not defined, It is not defined, but includes depression, schizophrenia and bipolar affective disorder.
Mental impairment – one of the four forms of mental disorder. It means 'a state of arrested or incomplete development of mind (not amounting to severe mental impairment), which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’ .
Nearest Relative – a family member who has various legal powers under the MHA, including the right to discharge you in some circumstances. Section 26 of the Act sets out, in a list, who is to be treated as your NR, starting with your partner.
Psychopathic disorder – one of the four forms of mental disorder. It means 'a persistent disorder or disability of mind (whether or not including significant impairment of intelligence), which results in abnormally aggressive or irresponsible conduct on the part of the person concerned'.
Registered medical practitioner – a qualified doctor, for example a GP or a psychiatrist.
Responsible Medical Officer (RMO) – the doctor responsible for the care of a detained patient.
Section 12 approved doctor – a doctor specially trained and qualified in the MHA.
Severe mental impairment – one of the four forms of mental disorder. It means 'a state of arrested or incomplete development of mind, which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’ .
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Useful organisations
Mind
For legal advice call Mind's Legal Unit on 020 8519 2122.
Community Legal Service Direct
web: www.clsdirect.org.uk
Their directory has legal information and lists advisors
The Law Society
tel. 0870 606 2555 (to find a solicitor)
web: www.lawsociety.org.uk
Mental Health Act Commission
56 Hounds Gate, Nottingham NG1 6BG
tel. 0115 943 7100, fax: 0115 943 7101
web: www.mhac.org.uk
Mental Health Review Tribunals
web: www.mhrt.org.uk
Northern region:
8 Eastway Business Village, Preston, PR2 9WT
Southern region:
1st Floor, 18 Pocock Street, London, SE1 0BW
Wales:
Crown Buildings, Cathays Park, Cardiff CF10 3NQ
Revolving Doors
Units 28–29, The Turnmill, 63 Clerkenwell Road, London EC1M 5NP
tel. 020 7253 4038
web: www.revolving-doors.co.uk
For people with mental health problems in contact with the criminal justice system
UK Advocacy Network (UKAN)
Volserve House, 14–18 West Bar Green, Sheffield S1 2DA
web: www.u-kan.co.uk
Promotes and campaigns for independent user-led advocacy
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Further reading
From psychiatric patient to citizen: overcoming discrimination and social exclusion L. Sayce (Macmillan 2000)
Good practice in adult mental health T. Ryan, J. Pritchard (JKP 2004)
How to cope with hospital admission (Mind 2004)
Legal rights and mental health: the Mind manual (Mind 2007) (ask about updates)
Mental Health Act 1983: an outline guide (Mind 2006)
The Mind guide to advocacy (Mind 2006)
Mind rights guide 1: civil admission to hospital (Mind 2007)
Mind rights guide 2: mental health and the police (Mind 2006)
Mind rights guide 3: consent to medical treatment (Mind 2007)
Mind rights guide 5: mental health and the courts (Mind 2007)
Mind rights guide 6: community care and aftercare (Mind 2005)
Pure madness: how fear drives the mental health system J. Laurance (Routledge 2002)
Understanding borderline personality disorder (Mind 2007)
Understanding manic depression (bipolar disorder) (Mind 2006)
Understanding personality disorders (Mind 2007)
Understanding schizophrenia (Mind 2005)
Users and abusers of psychiatry: a critical look at psychiatric practice (2nd ed) L. Johnstone (Routledge 2000)
Ward Watch: Mind’s report on hospital conditions for mental health patients (Mind 2004)
For a catalogue of publications from Mind, send an A4 SAE to:
Mind Publications
15–19 Broadway
London E15 4BQ
tel. 0844 448 4448
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email: publications@mind.org.uk
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This booklet was devised by Rhys Davies and revised by Simon Foster.
First published by Mind 1995
Revised edition © Mind 2007
ISBN 9781903567258
No reproduction without permission
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