Discharge from hospital

Rights and appeals

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. Information may be given to you by your responsible clinician, nursing or other staff such as the Mental Health Act administrator or your social worker. These people should give you written information about the Mental Health Act and help you answer questions you might have about your detention.

For independent advice, you can consult an advice centre or advocate (including an independent mental health advocate) if there is a local service or, in any case, a solicitor (see Useful contacts).

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 ask your responsible clinician or the managers to discharge you. In addition to this, most detained patients are entitled to apply to the Mental Health Tribunal (the tribunal). Your nearest relative also has certain rights under the Mental Health Act, and these are dealt with further on.

If you are subject to a ‘restriction order’, the permission of the Secretary of State for Justice must be obtained before your responsible clinician or the managers can discharge you. Similarly, if you are subject to a ‘restriction direction’ the tribunal can only recommend to the Secretary of State for Justice that you be discharged. Where the court has remanded you to hospital, only the court has the power to discharge you.

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. If you disagree with being detained, or an error has been made, you will need the advice of a solicitor as quickly as possible. If the detention is lawful, there are still ways in which you can have the need for the detention reviewed. This makes sure that you are not detained longer than is necessary.

Discharge

When will my responsible clinician discharge me from being detained?

Guidance to the Mental Health Act states that your responsible clinician should discharge you from section as soon as it is no longer necessary to detain you. When that is depends on which section you are detained under, and what your responsible clinician thinks about the state of your health.

Good practice suggests that when you go into hospital a care and treatment plan is 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 responsible clinician until arrangements have been made for your continuing care in the community. Ask what progress your responsible clinician and social worker are making in organising this. 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.

The care plan can also be used to inform the managers and the tribunal 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.

Who else can I ask to discharge me?

You can apply to the managers. They are non-executive directors of the NHS trust 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 section (but see ‘restriction orders’ and ‘restriction directions’ above). They are not independent of your responsible clinician or 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. They should meet with you in person and enable you to explain why you do not want to be detained. If you want a friend, advocate or solicitor to help you, then this should be encouraged. Public funding is not available for you to be represented at the managers’ meeting, but your solicitor may be able to attend if, for example, it is in preparation for a 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.

Mental Health Review Tribunal

What is the Mental Health Review Tribunal?

The tribunal is completely independent of the hospital detaining you. It is a panel that you have a right to apply to. The staff responsible for your care will not be surprised if you do apply and it will not prejudice your relationship with them. The tribunal will use the information before it, and legal criteria contained in the Mental Health Act, to decide whether you should be detained further.

The tribunal will contain: a chairperson (‘the president’) who will be a lawyer; a medical member, who will usually be a psychiatrist; and a lay person. The address of the tribunal office can be found under Useful contacts.

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 nearest relative can also apply in some instances.

Applications to the tribunal are governed by complex rules contained in the Mental Health Act (see Useful contacts for sources of advice, or consult your solicitor). Hospital staff should inform you of your rights. If you are in any doubt though, consult a specialist advice agency or solicitor.

Generally, people detained under the ‘holding powers’ (section 5) and the powers to remove patients to a ‘place of safety’ (sections 135 and 136) cannot apply to a tribunal. Someone compulsorily admitted in urgent circumstances under section 4 can apply to the tribunal, but there will only be a hearing if you then become detained under section 2. People detained by the courts on remand cannot apply.

In other cases, you can apply as soon as you are detained (except for section 37) and each time the section is renewed. You must apply within the first 14 days if you are detained under section 2, and the hearing must, by law, take place within a week. If you are detained under section 3, the courts have said that a hearing should take place within eight weeks of your application or sooner if it is clearly urgent. For other sections, the tribunal will be held several weeks after you apply. There is no time limit for these, but you can challenge an unreasonable delay.

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 visit you before the hearing in order to form a view on your mental health, and he or she will give the other members of the panel an opinion.

What will happen at 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 order in which questions are asked is decided by the president; and this may vary. The tribunal will decide whether your detention should continue. The decision may be given to you soon after the hearing otherwise it will be posted to you a few days afterwards.

What powers does the Mental Health Tribunal have?

This depends on what section you are detained under. Remember that you can have free advice and representation from a solicitor, so do contact one. The detailed rules are quite complex, but generally the tribunal has the following powers:

• If you are not a restricted patient, the tribunal can discharge you immediately or set a later date for discharge.
• If you are a restricted patient and were not transferred from prison, the tribunal can still discharge you, with or without conditions.
• If you were transferred from prison and are restricted, the tribunal can only recommend to the Secretary of State for Justice that you be discharged.
• If you are not discharged, the tribunal may also make recommendations regarding your future care, whether formal or informal.

Nearest Relative and leaving hospital

What are my nearest relative’s rights?

Your nearest relative 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 and your responsible clinician has 72 hours within which they can ‘bar’ the discharge by writing to the managers stating that in their opinion you are likely to be a danger to yourself, or others, if discharged. If the responsible clinician does this, your nearest relative cannot discharge you from hospital, and must not use this power for six months. If the responsible clinician does not  respond, then the nearest relative should write again to the managers ordering your discharge. However, if your nearest relative is prevented from discharging you in this manner, and you remain detained under section 3, they 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 nearest relative can also apply to the tribunal when you have been ordered to hospital by the court. See briefing on nearest relative for more information.

If I am discharged from section, will I have to leave hospital?

You do not have to leave hospital: you can remain as an informal (voluntary) patient. Your responsible clinician should discuss the situation with you, since your treatment plan may change because it cannot be imposed on you under the Mental Health Act if you are in hospital voluntarily.

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 programme approach (CPA), care management or aftercare. Whatever the professionals call the meeting, it should make no practical difference to the arrangements made.

It is important to note that if you have been detained under sections 3, 36, 37, 38 or 47, you will have a right to aftercare under section 117 and this may become critical, especially if there is some dispute about what services are to be provided. Aftercare services provided under section 117 are free of charge.

You should attend the aftercare meeting if you want to, and make clear to the professional 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.

Explaining legal terms

Public funding may be available to pay for professional advice from a solicitor. This is means tested (i.e. it depends on your income and savings) for most purposes, but not for appeals to the Mental Health Tribunal. If you want advice from a solicitor who has knowledge of mental health law and issues, you can obtain details of specialist solicitors in your area from Community Legal Advice. Alternatively, you can contact the Law Society which has a list of solicitors suitably experienced to advise patients and represent them on the Mental Health Tribunal (see Useful contacts). Details of these solicitors should also be available on the hospital ward.

Legal terms, as they appear in the Mental Health Act and other legislation, are printed in bold when they are used for the first time in this information (subsequently, they appear in ordinary type). Where we use section numbers, they are from the Mental Health Act. To keep this 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.

Legal terms

Approved clinician A mental health professional approved to act as a clinician under the Mental Health Act.

Approved mental health professional (AMHP) A mental health professional approved by a local social services authority to carry out functions under the Mental Health Act. An AMHP can be a social worker, nurse, occupational therapist or chartered psychologist.

Care Quality Commission (CQC)
The government agency responsible for the welfare of detained patients in England.

Healthcare Inspectorate Wales
Responsible for the welfare of detained patients in Wales.

Hospital
For the purposes of this booklet, this includes mental nursing homes registered to receive detained patients; private hospitals; and psychiatric wards.

Independent mental health advocate
An advocate trained to work under the Mental Health Act and who is available to advise and help certain patients.

Mental disorder
Any disorder or disability of the mind.

Mental Health Act 1983
The main Act of Parliament governing patients’ rights in psychiatric services. It has been amended by the Mental Health Act 2007.

Mental Health Act administrator
The person in the hospital responsible for ensuring patients receive all the information they require regarding the MHA.

Mental Health Act Code of Practice
The statutory code guiding professionals in the use of the Mental Health Act 1983.

Mental Health Act managers (the managers)
The non-executive directors of NHS trusts. They are responsible for administration of the use of the Mental Health Act 1983 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 detained under the Mental Health Act 1983 should remain subject to compulsory detention or supervision. In England the panel is called the First-tier Tribunal (Mental Heath). In Wales it is called the Mental Health Review Tribunal. For the purposes of this booklet, they will be collectively referred to as 'the Mental Health Tribunal' or 'the tribunal.'

Nearest relative
Section 26 of the Mental Health Act sets out a list of people who may be considered as your nearest relative, and the person who is the highest on the list is your nearest relative. Usually, but not always, that person is your next-of-kin. In certain circumstances, you can apply to the County Court to change your nearest relative.

Registered medical practitioner
A qualified doctor; for example a GP or a psychiatrist.

Responsible clinician
The mental health professional with overall responsibility for a person’s care and treatment in hospital. This person will not necessarily be a registered medical practitioner.

Useful contacts

Mind’s legal advice service
PO Box 277, Manchester, M60 3XN
tel. 0300 466 6463 (Monday to Friday, 9am to 6pm)
email: legal@mind.org.uk

Care Quality Commission
tel. 03000 616161
web: www.cqc.org.uk
Regulates and improves the quality of health and social care and looks after the interests of people detained under the Mental Health Act in England.

For people detained under the Mental Health Act who wish to make a complaint contact the Care Quality Commission at:
The Belgrave Centre, Stanley Place, Talbot Street, Nottingham NG1 5GG
tel. 0115 873 6250

Citizens Advice Bureau (CAB)
web: www.citizensadvice.org.uk 
Gives advice to the general public on a wide range of issues. See your local phone book or the CAB website, for your nearest office

Community Legal Advice
tel. 0845 345 4345
web: Directgov
For details of solicitors in your area who are able to deal with your case

Healthcare Inspectorate Wales
tel. 029 2092 8850
web: www.hiw.org.uk
Regulates and improves the quality of health and social care and looks after the interests of people detained under the Mental Health Act in Wales

The Law Society
tel. 020 7242 1222
web: www.lawsociety.org.uk 
For a list of mental health solicitors and lawyers with experience of Mental Health Tribunals

Mental Health Act Commission (MHAC) (operating until 2009)
tel. 0115 943 7100
web: www.mhac.org.uk 
Reviews the way the Mental Health Act is applied to people detained in hospital and is responsible for their welfare

Mental Health Tribunal (England)
Write to: The clerk to the First-tier Tribunal (Mental Health), PO Box 8793, 5th Floor, Leicester LE1 8BN
tel. 0116 249 7255 or 0845 223 2022

Mental Health Tribunal (Wales)
Write to: The clerk to the Mental Health Review Tribunal, 4th Floor Crown Buildings, Cathays Park, Cardiff CF10 3NQ
tel. 029 2082 5328

Parliamentary and Health Service Ombudsman
Millbank Tower, Millbank, London SW1P 4QP
tel. 0345 015 4033 web: www.ombudsman.org.uk 
Independent service investigating complaints about poor treatment or service provided through the NHS

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
c/o 8 Beulah View, Leeds LS6 2LA
web: www.u-kan.co.uk
Coordinating group for user-led patients’ councils, advocacy projects and mental health forums. UKAN can help you to locate a local advocacy service

Published 2010

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