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Mental Health Review Tribunals
MHRTs provide an independent review of the need for the patient’s continued detention under the MHA and have the power to discharge the patient from detention.
The MHRT consists of three people: a lawyer, a doctor and a ‘lay person’, who may be, for instance, a social worker. In 2001, the Court of Appeal held that the MHA was incompatible with the Convention because it placed the burden of proof on the patient to show that the conditions for detention were no longer met in order for the MHRT to be required to discharge the person from detention. Following this decision, the MHA was amended so that MHRTs are required to discharge patients from detention if they are not satisfied that the conditions for detention continue to be met.
Patients detained under Section 2 may apply to a MHRT in the first 14 days of detention. Patients detained under Section 3 may apply to a MHRT in the first six months of detention and in each subsequent period of detention, if renewed. Patients are entitled to legal representation, and staff on the ward should be able to provide details of solicitors who undertake this work. Once appointed, the solicitor can apply to the Community Legal Service for funding to cover the legal costs of representing the person at the MHRT, which is non-means tested.
If an RMO issues a barring certificate in respect of a patient detained under Section 3 the Nearest Relative may apply to a MHRT within 28 days.
MHRTs are considered to be a ‘court’ for the purpose of Article 5(4) of the Convention, which requires that the determination of the lawfulness of detention be carried out ‘speedily’. Following the introduction of the HRA, seven detained patients issued legal proceedings, claiming that their rights under Article 5(4) had been breached because the review of their detention by the MHRTs had been unreasonably delayed by repeated cancellation of hearings. Their claims were successful, with the court blaming central government and awarding damages for the excessive length of time the claimants were detained before their cases were heard.
