The Mental Health Tribunal: how it works, and your report

What is a mental health tribunal?

In England it's the First-tier Tribunal (Mental Health), an independent judicial body. Wales has the Mental Health Review Tribunal for Wales (s66(4)). It reviews detained, CTO, guardianship and conditionally discharged patients, and can discharge them (Code 12.3).

It's for those who want detention to continue to prove their case, not for the patient to disprove it (Code 12.5). Hearings are in private unless the tribunal decides otherwise (rule 38). Patients should be told about free legal advice and representation, and an IMHA can help them apply (Code 6.13, 12.6).

When can a patient apply, and how often?

Only one application counts in each period, but a withdrawn one doesn't use it up (s77(2)). The periods are in ss66, 69 and 70.

Automatic referrals

• At six months. The managers refer a Part 2 patient six months after first admission, counting any s2 before the s3. Not if they've applied since the s3 began: a s2 application doesn't count (s68(2), (3), (5)).
• Every three years. If the tribunal hasn't considered the case for three years, or one year if they're under 18. This covers CTO and unrestricted Part 3 patients too (s68(6); Code figure 20).
• On CTO revocation. As soon as possible (s68(7)).
• By the Secretary of State. Anyone can ask for a reference. Managers should normally ask when a s2 has been extended pending displacement, when the patient lacks capacity to apply, or after a long gap (s67; Code 37.44 to 37.46).
• Restricted patients. The Justice Secretary must refer after three years without a hearing (s71(2)), and within a month of a conditionally discharged patient's return to hospital on recall (s75(1)).

What happens at a mental health tribunal?

In a s2 case, a medical member examines the patient beforehand unless they don't want it. Otherwise it happens only if the patient asks in writing at least 14 days before the hearing, or the tribunal directs it (rule 34).

Notice of the hearing is at least 21 days, or 3 working days for s2, unless the parties agree to less or it's urgent (rule 37(4)). A s2 hearing must start within 10 days of the tribunal getting the application (rule 37(1)).

Patients are normally there throughout. The RC should attend the whole hearing, as a witness or as the responsible authority's representative, and be clear which (Code 12.28, 12.30 to 12.32). A nurse who knows the patient often helps (Code 12.34).

The decision is usually given at the end. Written reasons follow within 3 working days for s2, or 7 days otherwise (Code 12.41; rule 41(3)). If the patient is discharged first, the application counts as withdrawn (Code 12.25).

What can the tribunal decide?

• Discharge. It must discharge if it isn't satisfied the criteria are met, and it may discharge anyway (s72(1)).
• A future date. It can direct discharge on a later date, for example to let aftercare be arranged (s72(3)).
• Recommendations. If it doesn't discharge, it can recommend leave, a transfer, guardianship or that the RC consider a CTO, and can reconvene if that isn't followed (s72(3), (3A)).
• Not CTO conditions. It has no power to vary or revoke them, only to discharge (Welsh Ministers v PJ [2018] UKSC 66, paras 30 and 33).
• Restricted patients. For a restriction order, absolute or conditional discharge, and only a conditional discharge can be deferred (s73). For transferred prisoners and s45A patients, it notifies the Justice Secretary, who decides (s74). See restricted patients.

How to appeal a mental health tribunal decision

Appeals go to the Upper Tribunal, and only on a point of law (Code 12.2, note 1). Apply in writing to the First-tier Tribunal for permission within 28 days of being sent the decision and written reasons, saying what the error of law is (rule 46).

If the disagreement is about the outcome rather than the law, the practical route is usually a fresh application in the next period. The 2025 Act will lengthen the s2 window to 21 days and let s3 patients apply in the first 3 months, but that isn't in force yet (s30(1)).

When is the tribunal report due?

• Section 2. Prepare reports as soon as practicable once the application arrives. They must reach the panel and the patient's representative at least an hour before the hearing (Practice Direction para 9).
• Everything else. As soon as practicable, and within 3 weeks of the trust making or receiving the application or reference (rule 32(6); PD para 8).
• Restricted patients. Send copies to the Ministry of Justice at the same time (rule 32(7); PD para 8).
• Changes. If anything changes before the hearing, send an addendum covering the new position and, where needed, the new criteria (PD para 10).

Which reports does the tribunal need?

For an inpatient, including one on leave or AWOL, the responsible authority sends four (PD paras 5, 7):

• A statement of information with the detention history, the s117 bodies and the nearest relative.
• The RC's report, including any forensic history.
• A nursing report, with the current nursing plan attached.
• A social circumstances report, covering the CPA or s117 aftercare plan and any MAPPA input.

For a CTO patient there's no nursing report (PD para 15).

Who writes the tribunal report?

Authors should have met the patient and know them (PD para 10). The RC's report must be written or countersigned by the RC (PD para 12). If you draft it as a trainee, the RC has to sign it off, and whoever attends should know the case well (Code 12.16).

What goes in a responsible clinician's tribunal report?

Write it for the tribunal, with numbered paragraphs and pages, signed and dated, saying where each fact comes from. Don't recite the notes or bolt it onto an old report (PD para 12). Cover:

• The hearing. Anything that affects the patient's ability to cope with it, and adjustments that would help.
• History. Forensic history, a chronology of contact with services, and why they were admitted before and now.
• Diagnosis. Whether there's a mental disorder, what it is and why. For a learning disability, whether it's associated with abnormally aggressive or seriously irresponsible conduct.
• Treatment. What appropriate treatment is available, and their understanding of it, compliance and likely future willingness.
• Progress. Strengths, behaviour, capacity and insight, and any incidents of harm or damage.
• The criteria. Whether detention is justified or necessary, and whether they'd be likely to act dangerously if discharged.
• The alternatives. How risks could be managed in the community, whether the MCA would be less restrictive for a compliant patient lacking capacity, and your recommendations with reasons.

Nursing and social circumstances reports

The nursing report covers nursing care and medication, observation levels, and contact with family and friends. It also records any AWOL or late return from leave, and any seclusion or restraint with the reasons (PD para 13).

The social circumstances report covers home and family, housing and finances on discharge, the proposed s117 aftercare and its funding, and the patient's views. It includes the nearest relative's views, except in restricted cases, and any MAPPA involvement (PD para 14).

Writing a report the panel can use

• Answer the questions. Take each statutory criterion in turn and put your evidence under it. A diagnosis alone doesn't justify detention.
• Be specific about risk. Say what happened, when, and where the information comes from, rather than 'risk to others'.
• Say why less won't do. Leave, a CTO, informal admission or the MCA: explain why each would or wouldn't work.
• Name the aftercare. Panels want to know what would happen on discharge, including section 117 aftercare (Code 33.11).
• Flag anything harmful. If something shouldn't be shown to the patient, follow the tribunal's procedure for withholding it. The tribunal decides (rule 14(2); Code 12.18).