Leaving hospital
Explains the rights you have to get your section lifted if you are being detained in hospital under the Mental Health Act, and your rights to care and support after leaving hospital.
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Mental Health Tribunal
- What is the Mental Health Tribunal?
- Who can apply?
- When can I apply?
- How do I apply?
- Where will it be held?
- Who can represent me at the tribunal?
- What will happen before my tribunal hearing?
- Can I cancel my tribunal hearing?
- Why has my tribunal hearing been delayed?
- What will happen at my tribunal hearing?
- When will I get the tribunal's decision?
- If they discharge me, can I leave hospital immediately?
- Can I complain about my tribunal?
The UK Government is changing the Mental Health Act.
What is the Mental Health Tribunal?
The Mental Health Tribunal is a panel which you have a right to apply to, so that you can be discharged from your section.
Mental Health Tribunal hearings usually take place in the hospital where patients are sectioned, but they are totally independent of the hospital.
The panel is made up of three members who will be:
- a judge – the chairperson of the panel
- a medical member – a psychiatrist (but not one who works in the hospital you are in)
- a lay member – a professional with relevant experience
They will:
- look at your mental health and how well you are recovering
- speak to you and the professionals involved in your care
- ask for up-to-date reports about you
They will use this information to decide if you:
- still fit the conditions for being sectioned, or
- should be discharged from your section and possibly leave hospital
You cannot usually ask them to look at whether you should have been sectioned in the first place as this would be outside their powers given to them by the Mental Health Act.
You can apply
You can apply to the tribunal, unless you are under one of these sections:
- section 5
- section 135
- section 136
- a section that has been ordered by a court and you are currently on remand
If you are under section 4, you can apply to the tribunal, but there will only be a hearing if your section 4 becomes a section 2.
For more information about different sections and what they mean, see our pages on sectioning.
Someone else can apply
In some cases, someone else can apply to the tribunal for you, like:
- your mental health solicitor
- your nearest relative
The Secretary of State/Welsh Ministers
The Secretary of State, or Welsh Ministers may refer your case to the tribunal at any time, if you are sectioned under most sections of the Mental Health Act, or you are under a CTO. You may request a reference if you wish, and all requests will be decided on the particular facts of your case.
The hospital managers should consider asking the Secretary of State or Welsh Ministers to refer your case to the tribunal if your human rights are in danger of being violated.
Section 3
If you are detained under section 3, either you or your nearest relative can apply.
When you can apply
You can apply once at any time in the first 6 months after sectioning. If your section is renewed, then you can apply once in the second 6 months, then once in every 12 month period.
Your hearing should happen within 8 weeks of your application, or sooner if your case is urgent.
You can be referred to the tribunal in the second 6 month period, and after 3 years if you have not applied yourself.
When your nearest relative can apply
Your nearest relative can apply if your responsible clinician has signed a barring report. They can apply within 28 days of the barring report from your responsible clinician.
Section 7 guardianship
If you are detained under section 7 guardianship, you can apply once at any time in the first 6 months after sectioning.
If your guardianship has been renewed, then you can apply once in the next 6 months, then once in every 12 month period.
Your hearing should happen within a few weeks after you apply. If there is an unreasonable delay, you can challenge this through your solicitor or make a complaint.
CTO
If you are on a CTO, either you or your nearest relative can apply.
When you can apply
You can apply once at any time in the first 6 months of your CTO. If your CTO is extended, then you can apply once in the next 6 months, then once in every 12 month period.
Your hearing should happen within a few weeks after you apply. If there is an unreasonable delay, you can challenge this through your solicitor or make a complaint.
When your nearest relative can apply
Your nearest relative can apply if your responsible clinician has signed a barring report. They can apply within 28 days of the barring report from your responsible clinician.
Section 37 hospital order
If you under a section 37 hospital order, either you or your nearest relative can apply.
You or your nearest relative could apply once in the second 6 month period and then once every 12 months.
You will be referred to the tribunal after 3 years if you have not applied yourself.
Your hearing should happen within a few weeks after you apply. If there is an unreasonable delay, you can challenge this through your solicitor or make a complaint.
How do I apply?
This information should be given to you when you go into hospital, and should be displayed on your ward. You can also ask your IMHA, your carer or someone else supporting you to find this out.
The easiest way is to contact a mental health solicitor who is qualified to represent people at tribunals. The hospital may have details of local solicitors, or you can find out from the Law Society or from the Mental Health Lawyers Association.
Where will it be held?
During the coronavirus pandemic, tribunal hearings are being held using video calls where possible. In this case a nurse will probably be physically present in the same room as you during your hearing. But the tribunal panel, your Responsible Clinician and your legal representative may all join remotely via video call.
If the tribunal hearing is able to be held in person, it then will probably take place:
- in a room in the hospital where you are staying (if you are sectioned)
- at the hospital where you are being treated (if you are on a CTO).
If you are on a CTO and having the hearing in the hospital is not suitable for you, you or your representative should contact the hospital managers to discuss alternative sites.
The room should be:
- private and quiet
- clean and adequately sized and furnished
- not a room which contains information about other patients
- free of any equipment such as video cameras. If there is any equipment you find worrying, you can mention this and ask for it to be removed.
There should also be available a separate room available for you to have discussions with your solicitor and anyone who is with you at the hearing.
Who can represent me at the tribunal?
You can represented by:
- a solicitor. But you won't be able to get legal aid unless they are a mental health accredited solicitor. If you have not contacted a solicitor yourself, the tribunal can appoint a solicitor for you if you tell them that you wish to be represented by one. The tribunal might also appoint a solicitor for you if you lack the capacity to appoint one and they believe it would be in your best interests to be represented by one.
- someone you trust like a family member, your carer or your advocate. But they will normally have to get permission from the tribunal to do this. If you are not going to the tribunal yourself, it is very important for your carer or advocate to attend and speak for you.
- yourself (self-representation). But legal aid will not normally be available to help you get ready for the hearing. You should think very carefully before deciding to represent yourself. A solicitor will be familiar with the sorts of things a tribunal will be looking at, and will know how best to put your case.
You should be given information by the hospital about any free advice and representation available in your local area. Hospital staff should also be available to help you make your application and get ready for the tribunal.
If you are out of hospital and on a CTO, you may need to ask for this information. Your IMHA may be able to help.
What will happen before my tribunal hearing?
Usually your solicitor will visit you before your hearing and introduce themselves.
But if they can't visit the ward because of coronavirus restrictions, the hospital should support you to speak to them in private by phone or video call.
Before your tribunal hearing, your solicitor can help you in many ways. They can:
- explain what will happen at the hearing
- discuss the issues which may be dealt with at the hearing, for example, how you will look after yourself if you leave hospital and who will support you
- help you get access to your medical records, as well as reports about you from your responsible clinician, social worker or AMHP and other professionals involved in your care. You can ask if you want to see them, and if you cannot see them you should be told the reasons why
- identify documents or other evidence that might help your case and arrange for copies to be sent to the tribunal or for witnesses to attend
- answer any questions you may have about the hearing and tell you about any information about you that might be mentioned at the tribunal
- ask the tribunal for you if there is anyone you don't want to be involved in your hearing (though usually the tribunal judge will decide on this)
- ask an independent doctor for a report about you, and the doctor may come and examine you before the hearing – this report will then go to the tribunal panel.
Before the coronavirus pandemic it was usual to see a tribunal doctor before your hearing. But this is not happening during the pandemic, to avoid spreading the virus.
You should be given information and support in preparation for your hearing:
- The professionals have a duty to consider your wishes, feelings and medical condition, and should make sure you feel as comfortable as possible at the hearing. So if you have any special requests, you should discuss these with your solicitor as far as possible before the hearing.
- You should also be given information about the tribunal to help you prepare for the hearing properly – if you need the information in picture or video format, ask your IMHA, solicitor or ward staff about this.
- If you need sign language or support with language interpreters so that you can understand what is going on, ask the hospital managers or get someone else to ask them for you. This should be provided for you free of charge.
Can I cancel my tribunal hearing?
It may be possible to cancel your tribunal hearing. If you are discharged before your hearing the hospital will cancel it for you.
But you are usually not able to cancel if:
- there are less than 48 hours to go before your hearing
- you have been referred to the tribunal by someone else, such as the hospital managers, instead of applying yourself.
Why has my tribunal hearing been delayed?
Sometimes it is because reports the tribunal panel needs to see are missing, not up-to-date or do not provide enough information for the panel to make a decision.
The tribunal will try to get these reports as quickly as possible, and your hearing will have to be rescheduled.
What will happen at my tribunal hearing?
Although the tribunal is a type of court, it will feel more informal than a court.
- The lawyers and tribunal panel will not be wearing special clothes, such as wigs or gowns.
- It will not be in a court room, but may be in a room in the hospital where you are while you are sectioned or near to where you are living if you are under a CTO.
- If your hearing is held via video call because of coronavirus, everyone will be sitting in front of their computer screens with relevant reports and papers in front of them.
- If your hearing is held in person, usually everyone will be sitting at a table with the relevant report and papers in front of them.
Who will be there?
Apart from the tribunal panel, the people there will be:
- you, unless you choose not to be there
- your solicitor or representative if you have one
- your responsible clinician
- your social worker or other healthcare professionals involved in your care or on your multi-disciplinary team
- a nurse
- any professional who has sent a report to the tribunal panel
There might be others who could attend the hearing, such as:
- your IMHA or other advocate, if you have one and you have asked them to be there to support you
- your nearest relative, unless you have told the tribunal you do not want them there
- your carer or family members or friends, if you want them there
- possibly someone taking notes of the hearing for the tribunal
What is the process?
Here is normally what happens during a hearing:
- The judge will introduce the panel to you and confirm that the correct witnesses have attended and may briefly set out what the hearing is about.
- Usually, if the medical member of the panel has seen you before the hearing then he or she will say something about your meeting. (But this bit isn't happening currently because of coronavirus.)
- The responsible clinician will be questioned by each of the panel members and by your solicitor. The nurse and then the social worker will also then be asked questions by both the panel and your solicitor.
- You will then be given the opportunity to speak to the panel. Your solicitor may ask you some questions first, and then the panel will ask you questions.
- If your nearest relative or family members or carers have attended then the panel may ask them questions, for example about living arrangements or their views about your being discharged.
- Your solicitor will summarise your case to the panel and will say why the section should be lifted, if that is what you want.
When will I get the tribunal's decision?
The tribunal will normally decide at the hearing whether or not you should be discharged and will tell you and the other people there. They should speak to you personally if this is possible and you want them to. If it is not possible, they will tell your representative.
If you do not have a representative, and it is not possible to discuss matters with you after the hearing, the hospital managers should make sure that you are told their decision as soon as possible. Usually their decision in writing with reasons for the decision should also be posted to you a few days after the hearing, and to all parties to the hearing.
If you are under guardianship, your local authority will contact you about the tribunal panel's decision.
If they discharge me, can I leave hospital immediately?
Yes you can, although you may want to stay as an informal patient while aftercare services are put in place for you.
In some cases the tribunal may not discharge you immediately, but may set a future date when you will be discharged. This may be to allow for services to be arranged for you, including aftercare services, although usually at least some of these should have been discussed and planned before your hearing.
If the tribunal does not discharge you, it may make recommendations about your future care, including whether you should continue to be cared for under section or whether in the future you should receive care as an informal patient.
Restricted patients
If you are a restricted patient but did not come to hospital from prison, the tribunal can discharge you, but this may be with certain conditions.
If you are a restricted patient and were transferred from prison to hospital, the tribunal can recommend to the Secretary of State for Justice that you should be discharged from your section, and where you should receive care and treatment after that.
Can I complain about my tribunal?
If you want to complain about anything that happened at your tribunal or about how it was run, you can send a complaint to the tribunal offices. It has its own procedures for dealing with complaints quickly.
If you want to challenge the tribunal's decision not to discharge you, you will need to get legal advice from a mental health solicitor. It is difficult to succeed in this kind of challenge. An appeal to the Upper Tribunal is only allowed if the tribunal has misunderstood the law and applied it wrongly, which happens very rarely.
Section
Being 'sectioned' means that you are kept in hospital under the Mental Health Act. There are different types of sections, each with different rules to keep you in hospital. The length of time that you can be kept in hospital depends on which section you are detained under.
See our pages on sectioning for more information.
Visit our full listing of Legal TermsMental Health Act 1983 (MHA)
This is a law that applies to England and Wales which allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.
Visit our full listing of Legal TermsRemand
This means that you will go to prison until you go to court to have your case considered. Sometimes you can be remanded to hospital instead of prison.
Visit our full listing of Legal TermsResponsible clinician (RC)
This is the mental health professional in charge of your care and treatment while you are sectioned under the Mental Health Act.
Certain decisions, such as applying for someone who is sectioned to go onto a community treatment order (CTO), can only be taken by the responsible clinician.
All responsible clinicians must be approved clinicians. They do not have to be a doctor, but in practice many of them are.
Visit our full listing of Legal TermsIndependent mental health advocate (IMHA)
An IMHA is an advocate specially trained to help you find out your rights under the Mental Health Act 1983 and help you while you are detained. They can listen to what you want and speak for you.
- You have a right to an IMHA if you are:
detained in hospital under a section of the Mental Health Act, but not if you are under sections 4, 5, 135 and 136 - under Mental Health Act guardianship, conditional discharge and community treatment orders (CTOs)
- discussing having certain treatments, such as electroconvulsive therapy (ECT).
In Wales, voluntary patients can also have an IMHA.
See our pages on IMHAs (England) and IMHAs (Wales) for more information.
Visit our full listing of Legal TermsNearest relative
The nearest relative is a family member who has certain responsibilities and powers if you are detained in hospital under the Mental Health Act. These include the right to information and to discharge in some situations.
The law sets out a list to decide who will be your nearest relative. This can sometimes be changed.
See our pages on the nearest relative for more information.
Visit our full listing of Legal TermsCommunity treatment order (CTO)
If you have been sectioned and treated in hospital under certain sections, your responsible clinician can put you on a CTO. This means that you can be discharged from the section and leave hospital, but you might have to meet certain conditions such as living in a certain place, or going somewhere for medical treatment. Sometimes, if you don't follow the conditions or you become unwell, you can be returned to hospital.
See our pages on CTOs for more information.
Visit our full listing of Legal TermsBarring report
This is the report written by the responsible clinician stopping the discharge of someone under section when an application has been made by the nearest relative.
Visit our full listing of Legal TermsCapacity
'Capacity' means the ability to understand information and make decisions about your life. Sometimes it can also mean the ability to communicate decisions about your life.
For example, if you do not understand the information and are unable to make a decision about your treatment, you are said to 'lack capacity' to make decisions about your treatment.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsAdvocate
An advocate is a person who can both listen to you and speak for you in times of need. Having an advocate can be helpful in situations where you are finding it difficult to make your views known, or to make people listen to them and take them into account.
See our pages on advocacy for more information.
Visit our full listing of Legal TermsApproved mental health professional (AMHP)
AMHPs are mental health professionals who have been approved by a local social services authority to carry out duties under the Mental Health Act. They are responsible for coordinating your assessment and admission to hospital if you are sectioned.
They may be:
- social workers
- nurses
- occupational therapists
- psychologists.
Guardianship
This is where someone called a 'guardian' is appointed instead of being sectioned and kept in hospital. Your guardian could be a person or a local authority.
You can only be placed under guardianship if it's necessary for your welfare or to protect other people. Your guardian has the power to make certain decisions about you and to make conditions that you will be asked to keep to, such as where you live.
Guardianship lasts for up to six months and can be renewed: initially for a further six months, and then for a year at a time. You can appeal to the Mental Health Tribunal once in each of these periods.
Visit our full listing of Legal TermsInformal patient
This has the same meaning as voluntary patient.
Visit our full listing of Legal TermsUpper tribunal
This is a tribunal which handles appeals received from lower tribunals. It is not a specialist mental health tribunal.
You can appeal to it if the Mental Health Tribunal got a point of law wrong. In practice, it is rarely used in mental health.
Visit our full listing of Legal TermsThis information was published in July 2020. We will revise it in 2023.
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