Find out more about what to expect at a Mental Health Tribunal, including legal representation, interpreters and the rights of victims.
Who hears the case?
There are three people on a Mental Health Tribunal: a Tribunal Judge who is legally qualified, a psychiatrist and a specialist member who has mental health expertise. If the patient is under 18, at least one of the panel members will have expertise in mental health issues concerning children or adolescents. The Judge will chair the proceedings. None of the panel members have any connection with the hospital or community services involved with the patient; they are independent.
Free legal representation is available to all patients who have a case before the Mental Health Tribunal. This is regardless of the patient’s financial circumstances. Hospitals are able to provide a patient with a list of specialist legal representatives who will be members of the Law Society mental health panel. They will be specialists who are used to representing patients at the Mental Health Tribunal. Information about legal representation can be found by asking the Mental Health Act Administrator at the Responsible Authority. If a patient does not have a legal representative but wants one, the Tribunal can find one to act on their behalf. The patient can fill in the T129 form (PDF) asking the Tribunal to do this. There are other circumstances when a Tribunal might appoint a representative to act on a patient’s behalf.
Foreign language Interpreters and British sign Language (BSL) interpreters are available to assist patients at Mental Health Tribunal hearings. If a patient requires an interpreter and the application form has already been completed, the administration team should be contacted straight away: include all the relevant information such as the patient’s name, date of birth and Tribunal Reference Number (which will begin with MP, MH or MM) in your correspondence.
When will the case be heard?
There is guidance as to when a hearing will take place. For patients detained under Section 2 of the Mental Health Act the hearing must take place within seven days, for non-restricted patients it will normally take place within two months, and for restricted patients it will normally take place within three months.
Before the hearing:
A patient is sometimes examined by the Tribunal doctor before the hearing date. This is called a pre-hearing examination (PHE). If the patient is admitted under Section 2 of the Mental Health Act this will be automatic following an application unless the patient says they do not want to meet the Tribunal doctor. In all other cases the patient must ask to be examined (PDF), they must do this at least two weeks before the hearing takes place, although occasionally a late request for PHE maybe allowed. You can read the rules about PHE’s online (PDF). Pre-hearing examinations take place remotely over the internet or face to face. If the patient is living in the community their care coordinator or social supervisor will help arrange this meeting.
Where will it take place?
Hearings may be held by way of a remote video hearing over the Internet. These are called remote hearings. Alternatively, hearings may be held in person, these are called face to face hearings. A patient can decide which type of hearing they want.
The evidence is that the rate of discharge for those having those having remote /video hearings and those having face to face hearings are the same (Care Quality Commission).
In a remote hearing, participants join by using a video link which is provided before the hearing. Some rules apply: the participants to the remote hearing must be in a private place where they cannot be overheard, and they must confirm that they are not recording the hearing. Occasionally a participant might join a hearing by telephone. You can find out more about what to expect at a remote hearing.
Face to face hearings usually take place in the hospital where the patient is detained. A hearing for a community patient will take place in a suitable venue, for example an outpatient centre where the community/supervising team are based. If the patient is on Community Treatment Order the hearing might take place at the supervising hospital.
If a patient is over 18 years, and on a Community Treatment Order which has been referred to the Mental Health Tribunal they can invite the Mental Health Tribunal to deal with their case by reading the reports if the patient decides that they do not want to attend the hearing. If the Tribunal agree, there will not be a face to face hearing. The patient or their representative can fill in the T128 form (PDF) and invite the Tribunal to deal with the hearing in this way.
What happens at a hearing?
If the hearing is for a young person (under the age of 18). They will be sent a leaflet called ‘A Guide to Mental Health Tribunals for Young People’ when they make their application. This will tell them about the hearing and what to expect.
The Mental Health Tribunal hearings are court proceedings, however, they are usually more flexible and less formal than other courts. All courts strive to treat people fairly and with respect.
Since January 2024, all Cloud Video Platform hearings (remote hearings) are audio recorded by the HMCTS. The parties are NOT allowed to record the proceedings; this is a criminal offence. You can find out more about the recording here Presidential Guidance: Recording of hearings and transcription of recordings in HESC.
Before the hearing takes place, the patient/their representative and the Tribunal panel will have received written reports usually from the patient’s doctor, the nursing team and the social work team responsible for the patient’s care in the community (PDF). There is important guidance about what information these reports must contain. If the patient is under 18 years old, an additional report must be provided to the Tribunal panel. The Tribunal panel will have read all the written reports they have received. This might include any independent reports which the patient or their representative has arranged, such as an independent psychiatric report.
The hearing is usually private, this means that members of the public and people who are not parties to the hearing cannot usually attend. A nearest relative (PDF) will only be a party, and have a right to attend, if they have made the application to the Tribunal. The Tribunal has the power to admit someone to the hearing who is not a party such as an Independent Mental Health Advocate (IMHA) or a family member. The panel will ask the parties for their views before making a decision.
Some victims of certain types of offences committed by a person now detained under the Mental Health Act, have rights regarding Mental Health Tribunals, this includes the right to make certain representations. Victims do not have a right to attend the hearing. There is guidance about how victims representations are handled by the Tribunal.
At the hearing, the patient’s doctor, a member of nursing team and the patient’s care coordinator are usually required to give evidence, although this depends on whether the patient is detained in hospital or living in the community. The Tribunal panel and the patient’s representative will ask the witnesses questions. Although patients do not have to attend the Tribunal hearing, most patients do attend. If a patient attends, they usually give evidence and then they might be asked questions by the Tribunal panel. However, the patient does not have to give evidence if they do not want to do so.
At the end of the hearing, the Tribunal panel will ask everyone to leave the hearing and they will make their decision in private. This is usually announced straightaway. The Tribunal have the power to discharge a patient on the hearing day or in the near future. They have other powers which will depend on what section of the Mental Health Act the patient is detained under. In some cases, the Tribunal can make recommendations to facilitate discharge such as transfer to another hospital or leave, or it can grant discharge to the community but under a legal framework. After the hearing the Tribunal must send written reasons for the decision they have made. There are time limits which they must comply with: the written reasons must be prepared within three days if the patient is detained under section 2 of the Mental Health Act, or within seven days in all other cases.
A patient has the right to ask for an appeal against a decision made by a Mental Health Tribunal. They must make an application within a specified timeframe and the correct forms should be used when applying for a decision to be set aside or for permission to appeal.
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