The First-Tier Tribunal is the independent judicial body whose purpose is to review the legality of the loss of liberty of patients who are detained under the Mental Health Act 1983 because of their mental disorder. The Tribunal considers evidence relevant to the statutory criteria and decide whether, on the balance of probabilities, the responsible authority has established that the criteria are met.
1. Tribunals can direct the discharge of any patients where it thinks it appropriate to do so, to include those detained pursuant to an admission for assessment, admission for treatment, or guardianship or under a Community Treatment Order (s.66). The Tribunal can discharge patients subject to hospital orders and transfer directions but not restricted patients. The Tribunal does not deal with patients detained under "holding powers" (s.5), those on remand (ss.35-36), interim hospital orders (s.38) or those subject to detention in a place of safety for 72 hours (ss.135-136).
2. The Tribunal for England and Wales are distinct. The Tribunal in Wales is still the Mental Health Review Tribunal and is established by s.65 of the Mental Health Act 1983. The First-Tier Tribunal in England is established by the Tribunals, Courts and Enforcement Act 2007.
Who can apply?
3. A patient or nearest relative may make an application to a Tribunal. A Hospital Order patient cannot apply to the Tribunal within the first 6 months of detention (s.40) (see also s.69).
References to the Tribunal
4. Hospital managers must refer a patient to a Tribunal in certain circumstances.
5. In the absence of an application, hospital managers must refer certain categories of patients to the Tribunal if six months have passed since that admission or transfer. These categories include patients detained for assessment under s.2, for treatment under s.3, as a Pt 2 community patient (having been detained under s.3), as Pt 3 community patient (having been detained under an unrestricted hospital order). The Secretary of State also has the power to refer patients. Hospital managers also have to refer community patients whose community treatment order is revoked and any patients over 18 who have spent 3 years without the Tribunal considering their detention, and yearly for those under 18.
Restriction order patients
6. A Restriction Order depends for its existence on the continuation of a Hospital Order. A patient who is subject to a Restriction Order may apply to a Tribunal for discharge only during the second 6 months of the duration of the Hospital Order, or transfer direction and then at yearly intervals. Refer to Restriction order article for more information. The power to discharge restricted patients is dealt with further below.
7. Where there is an application to a Tribunal, the responsible authority (normally the detaining hospital) must provide clinical reports from the consultant psychiatrist responsible and other clinicians setting out the relevant information and the reasons why each of the MHA criteria is met. Where a patient is subject to guardianship, the responsible local social services authority is the Responsible Authority. Patients are entitled to legal assistance and to public funding to include representation at a Tribunal. Patients may instruct clinicians independent of the hospital to give an opinion. Reports prepared for the Tribunal should be circulated in advance so that the patient and his representative, if any, can prepare for the hearing. It is the responsibility of the parties to file relevant documents with the Tribunal Service who will then serve those on the parties. In the case of restricted patients the views of the Secretary of State should be got from Mental Health Unit at the Department of Justice. Reports should be updated (and filed) in the event there is a prolonged period before the hearing is listed.
8. Witnesses to a Tribunal can be cross-examined both by the Tribunal members and those representing the patient and by the hospital to include the Responsible Clinician. The Responsible Authority is not usually legally represented except in particularly difficult cases. The responsible clinician can attend the hearing solely as a witness or as a nominated representative of the responsible authority or both. He has the ability to call and cross-examine witnesses and make submissions. Prior to a hearing, the medical member of the Tribunal will examine a patient. It is usual practice that at the beginning of a Tribunal hearing, an outline of what a patient said to the medical member is provided to the parties.
Attendance at hearings
9. A patient will normally be present throughout the hearing together with the patient's responsible clinician. There may be a need for the patient to be escorted by a number of staff. Patients' family members are often permitted to attend and the witnesses are normally allowed to observe the proceedings before and after giving their own evidence.
Powers of the tribunal
A tribunal shall direct the discharge of a patient under s.3 if it is not satisfied (s.72):
10. The patient is suffering from a mental disorder of a nature or degree which warrants a detention in hospital for assessment or treatment
11. The detention is necessary for the health and safety of a patient or for the protection of other persons that he should receive such treatment; or
12. That appropriate medical treatment is available for the patient
13. In the case of an application where s.66(1)(g) applies (where the responsible clinician furnishes to managers a report certifying that in his opinion the patient, if discharged, would be likely to act in a manner dangerous to himself or others - s.25), that the patient, if released, would be likely to act in a manner dangerous to others or himself.
For patients detained under s.2 for assessment the criteria are:
14. The patient is suffering from mental disorder or from a mental disorder of a nature or degree which warrants detention in hospital for assessment for at least a limited period; or
15. That detention is justified in the interests of his own health or safety or with a view to the protection of others.
In relation to community patients, the Tribunal must direct discharge if it is not satisfied:
16. That the patient is suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or
17. That it is necessary for his health and safety or for the protection of other persons that he should receive such treatment; or
18. That it is necessary that the responsible clinician should be able to exercise the power to recall the patient to hospital (s.70(e)); or
19. That appropriate medical treatment is available for him; or
20. In the case of an application under s.66(1)(g) that the patient, if discharged, will be likely to act in a manner dangerous to other persons or to himself.
21. The Tribunal's powers are limited to granting discharge or refusing it. They have no other statutory powers. They can make extra-statutory recommendations and are sometimes instructed to recommend the transfer of a patient. On rare occasions where a patient is to be transferred back to prison, Tribunals may be invited by the patient to confirm these criteria are met and to recommend transfer elsewhere.
Power to discharge restricted patients:
22. For patients who are subject to restrictions, a Tribunal must direct an absolute discharge under s.73 if it is not satisfied that the criteria are met at s.72, and the Tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
23. The Tribunal must order a conditional discharge, if the s.72(3)(ii) criteria are met save that the Tribunal considers it is appropriate for the patient to remain liable to be recalled to hospital. The discharge only goes ahead if the required conditions can be met. If the Tribunal sets conditions that cannot be put into effect, the patient is not entitled to discharge in any event. (see Restriction order).
24. A patient who is conditionally discharged may be recalled by the Secretary of State.
25. This section does not enable, except in an emergency, there to be immediate recall - recall should generally be exercised only with up to date medical evidence.
26. Tribunals may, for restricted patients, consider adjourning in order to review the practicality of conditions being met (for example as set out in the Restriction order article). Also as set out in the case of R. (on the application of H) v Secretary of State for the Home Department  EWCA Civ 646;  Q.B. 320.
Possible future Developments
In June 2013, there was a Stakeholder Consultation regarding a proposal to amend r.34 of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008/2699, in which a tribunal procedure committee consultation sought views on proposed amendments to r.34 of the 2008 Rules. Rule 34 places a mandatory requirement of a medical examination by the medically qualified member of the tribunal before a case is heard. The committee proposes to make the requirement discretionary in most cases.