The new look Mental Health Tribunal

The recent White Paper on Reforming the Mental Health Act (MHA) makes a number of proposals, which will expand the powers of the Mental Health Tribunal (MHT). The plans mean it will play a key role in upholding the principles of reform ensuring the MHA is used:

• in the least restrictive way;
• for therapeutic benefit only; and
• to ensure patients have choice and autonomy.

So, what do the new MHT powers include?

1. More frequent review of the case for detention

1. For patients under section 3 MHA, they should have three formal opportunities to appeal their detention at the MHT in their first year of detention (at three, six and 12 months), rather than only two.
2. Patients detained under section 2 should be able to apply for discharge during the first 21 days, as opposed to the current 14 day cut off.
3. An increase in the frequency of automatic referrals to the MHT to ensure people detained under the MHA have their case heard.
4. The MHT will take into account the patient's statutory care and treatment plan when they consider an application for discharge. This should clearly set out the responsible clinician's justification for the patient's continued detention.

2. Greater access to the MHT so detention can be scrutinised

1. The Nominated Person (NP) or independent mental health advocates (IMHAs) could apply for discharge to the tribunal on behalf of the patient.

3. Giving the tribunal more power to grant leave, transfers and community services

1. The power to grant leave.
2. The power to grant transfer to a less restrictive setting where this will help facilitate the patient’s recovery.
3. The power to direct services in the community, where this is a barrier to discharge.
4. Healthcare bodies and local authorities to have five weeks to deliver on directions made by the MHT regarding leave, transfers and community services.

4. A new right to challenge a treatment decision at the tribunal

1. The ability for patients to appeal treatment decisions at the tribunal, before a single judge, where there is evidence to suggest their wishes and preferences were inappropriately overruled by the responsible clinician (RC). The judge would not play a clinical role, but be able to review whether appropriate processes have been followed and direct the RC to reconsider their decision.
2. If the patient lacks capacity, their NP or IMHA would be able to bring the challenge on their behalf, providing they have a valid advance choice document refusing a specific treatment.

5. Displacing the Nominated Person

1. Currently, this power sits with the County Court. Consideration is being given to whether this power could sit with the MHT, which is potentially better equipped to deal with this decision.

6. Consideration of Compulsory Treatment Orders

1. The power to order that the responsible clinician reconsiders the conditions of a patient's CTO where they are overly restrictive.

7. Conditionally discharging restricted patients

1. The power to discharge restricted patients, with mental capacity, into the community under supervision and with conditions that restrict their freedom under a new “supervised discharge”.

Do you agree with these changes? The White Paper recognises that funding and capacity of the MHT will be big factors. Have your say about the proposals in the consultation, which closes on 21 April 2021 (see our earlier blogs on the MHA reforms here and here).