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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.

  • This information applies to England and Wales.
  • This information applies to adults. It doesn't apply to children unless specifically stated.

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.

Changes due to coronavirus

In Wales, there have been changes to the law that allow tribunals to be held with only one or two tribunal members in certain circumstances. You can find out more about this on our page about coronavirus and sectioning.

In England the law already allows the tribunal to hold a hearing with only one or two tribunal members. However, the English tribunal have said that all hearings listed after 1 June 2020 should have all three members.

The tribunal can also make a decision about your case without a hearing in some situations. The rules are slightly different depending on whether you are in England or Wales. But in general, before deciding not to have a hearing, they should consider:

  • whether a face-to-face or remote hearing can be arranged
  • whether a decision about your case needs to be made quickly
  • whether the tribunal has enough information to make a decision without a hearing
  • what the impact would be on you if there was no hearing.

Who can apply?

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.

Do I have to apply to the tribunal?

You have the right to apply to the tribunal at certain times, but you do not have to apply – it is your choice.

If you choose to apply, this will not harm your relationship with your responsible clinician or other professionals. They will expect you to apply when you have the right to do so.

You might not want to apply to the tribunal, for example because you feel it is too soon, or you will not be discharged anyway. In this case your wishes will normally be respected. But there may be times where the hospital managers will refer your case to the tribunal.

You should be given information about your right to appeal to the tribunal on arrival in hospital. You might want to consider this option carefully, or discuss it with someone suitable like an IMHA or solicitor.

If you do not have the information about the tribunal, you can ask your IMHA or the ward staff about it.

Someone else can apply

In some cases, someone else can apply to the tribunal for you, like:

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.

When can I apply?

When you can apply depends on which section you're under:

Section 2

If you are detained under section 2, you can apply within the first 14 days after sectioning. After you have applied, your hearing should happen within a week in Wales, or 10 days in England.

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.

How much will it cost?

It will not cost you anything to apply to the tribunal. Legal aid is available to pay for a mental health solicitor who will be able to:

  • advise you on your chances of being discharged by the tribunal
  • represent you at the tribunal hearing
  • prepare you for the hearing and answer any legal questions you may have
  • find out whether you want to be discharged from your section, or if you have any other requests to do with the hearing

You will not be asked to pay anything towards the cost of the tribunal or your solicitor, even if you have some savings or own a house or flat.

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.

Remember, it is for the professionals at the tribunal to prove that you should not be discharged, not for you and your solicitor to prove that you should no longer be sectioned.

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.

< Nearest relative Discharge FAQs >

This information was published in July 2020. We will revise it in 2023.

References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.

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