When Detained Patients Appeal – Part I

In the last few weeks I’ve been doing some training sessions for AMHP students, which has kept me away from posting on the blog for a while. In fact, I’ve currently got an AMHP trainee on placement with me (although I don’t think they realise their placement is with The Masked AMHP. I’m very discreet.) One of the sessions was on Appeal Tribunals and Managers Hearings. Since I have not written much about appeal hearings in the blog, I thought I would devote this post to the process of appealing against detention under the MHA. Since I am not trying to give a two hour lecture, some of the more complex aspects have been simplified or omitted.

All patients detained under Sec.2 or Sec.3 have a right to appeal against these orders. (Interestingly, these rights of appeal also apply to detention under Sec.4. However, since Sec.4 is (a) not that common, (b) lasts only a maximum of 72 hours, and (c) is generally converted to a Sec.2 within 24 hours of admission, there is such a tiny window of opportunity to appeal that I am personally unaware of any appeals against Sec.4 either being made or actually considered by a Tribunal.) Those subject to Guardianship (Sec.7) and Supervised Community Treatment (Sec.17A) also have similar rights of appeal, although I won’t go into these here. Nor will I go into rights of appeal against Court mental health orders.

Although the principle arbiter is what is known as the 1st Tier Tribunal, Hospital Managers (who are actually unpaid and serve an executive function rather than being employed managers of the hospital) can also convene a hearing, in particular for Sec.3, when a managers hearing can take place much sooner than a Tribunal hearing.

These hearings are independent of the hospital. A hearing of the hospital managers consists of a panel of at least three hospital managers, who are basically people with an interest in mental health issues and who also have the time to devote to these duties. (In practice I'm afraid this tends to mean middle aged women who do not need to work full time).

A 1st Tier Tribunal consists of a panel of three – the chairman, who is a lawyer, the medical member, who is a psychiatrist, and a non-legal member, who is generally a lay person with a particular interest and experience in working with people with mental health problems, such as an AMHP, a nurse, or someone with extensive experience in the voluntary sector. Since 2008 Tribunals have been part of the Judiciary.

People detained under Sec.2 must apply to the Tribunal for discharge within the first 14 days of detention, whereas people detained under Sec. 3 may apply to the Tribunal for discharge at any time in the 6 month period of detention. If their detention continues beyond the first 6 months, they can appeal at any time during the period of renewal.

The other people present at these hearings will be: the patient; the patient’s representative (who is generally a solicitor but may basically be any other person, apart from people also detained under the MHA or who are inpatients in that hospital); the patient’s Consultant Psychiatrist; a hospital nurse involved with the patient’s care; and someone from the community mental health team, who could be a social worker, a community mental health nurse or an occupational therapist. The patient’s nearest relative may also be present, as well as a clerk.

Both a Managers Hearing and a Tribunal Hearing will have access to three reports: a medical report compiled by the patient’s psychiatrist, a nursing report, and a social circumstances report written by someone from the community team.

Both Tribunals and Managers have to be satisfied that the patient is “suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in hospital” for either assessment or treatment. For a Sec.2 they also have to be satisfied that the patient’s detention “is justified in the interests of the patient’s own health or safety or with a view to the protection of others”, while for a Sec.3 they also have to be convinced that “it is necessary for the health or safety of the patient or for the protection of others that the patient should receive such treatment”. Also for Sec.3 they have to be satisfied that appropriate medical treatment is available.

In order to satisfy themselves of these factors, they will use the reports supplied, but will also hear verbal evidence presented by those present. This gives a chance for the patient and his representative to cross examine the other people present and to give their side. They can then decide one of three things: not to discharge the patient, to discharge the patient with immediate effect, or to direct that the patient be discharged at a future date, usually in order for suitable arrangements to be made for their discharge.

In 2008, which is the most recent date I could find for these statistics, 13% of patients whose cases were heard by Tribunal were discharged (a total of 967 out of 7295). It’s worth noting that a further 5862 patients were discharged from detention by their psychiatrists before the date of the hearing – in other words, the patient’s appeal can make their psychiatrist think twice about continuing to keep them on section.

It’s also worth knowing (at least if you are a detained patient) that Tribunals in particular can give the psychiatrist, the nurse, and the social worker, or other community representative, a tough time. They can also adjourn the hearing if they want more information about alternatives to detention, and can order people to attend to provide information or to explain, for example, why appropriate community resources are not available. I have attended Tribunals that have been adjourned so that senior managers in the NHS can be ordered to attend in order to account for why they have been dragging their heels over allowing funding for care homes or nursing placements. It’s amazing how quickly financial decisions can be made in these circumstances.

So that, in 1000 words, is a very brief overview. In the last few years I’ve attended 55 Tribunals and Managers Hearings (and written far more reports). Next time I’ll write about some of those appeals.