THE MENTAL HEALTH REVIEW Tribunal FOR NORTHERN IRELAND (Part V )

Introduction

The Mental Health Review Tribunal is an independent judicial body, set up under the Mental Health (Northern Ireland) Order 1986 (the Order),to review the cases of patients who are compulsorily detained in hospital or are subject to guardianship under the Order. Article 70 What is the purpose of the Mental Health Review Tribunal? The Tribunal was established to provide a safeguard against unjustified detention in hospital or control under guardianship by means of an independent review of a patient's case including both the medical and non-medical aspects.

The Tribunal provides the vehicle by which patients who have been detained or made subject to guardianship have access to an appeal regarding their detention or control under guardianship. The Order also makes provision for an additional safeguard for the patient by way of the automatic referral to the Tribunal of those patients who have not exercised their right to appeal or are incapable of doing so, within the previous 2 years. What are the powers of the Mental Health Review Tribunal? The Tribunal has powers to direct the discharge of patients whom the Tribunal considers do not meet the criteria for detention in hospital and guardianship under Part II of the Order.

The Tribunal has the same powers in relation to patients subject to a Hospital Order (without restriction) or a patient subject to a Guardianship Order under Part III.

Similar powers are available in relation to patients subject to a Hospital Order (with restrictions) and patients who have been conditionally discharged.

Articles 77 and 78 of the 1986 Order set out the procedure to follow, and the test which must be used by the Tribunal when deciding whether to discharge patients from detention.

However in 2001 a court ruled^* that similar provisions in the Mental Health Act 1983 were held to be incompatible with Articles 5 (1) and 5 (4) of the European Convention of Human Rights.

* Hv Mental Health Review Tribunal North & East London Region (Secretary of State for Health Intervening) (4 April 2001)

In order to remove the incompatibility with the Convention right, new legislation, to amend these Articles was introduced. www.legislation.gov.uk/nisi/2004/1272/ contents/made

In effect the 2004 Order now places the burden of proof justifying the detention on the responsible authority, i.e. the Health and Social Care Trust. Originally the 1986 Order placed this burden on the patient to show why he should be discharged. Article 3 of the Mental Health (Amendment) (Northern Ireland) Order 2004 amended Article 77 of the Mental Health (Northern Ireland) Order 1986 to provide that a Mental Health Review Tribunal shall direct the discharge of a patient if it is not satisfied that the criteria justifying detention in hospital for treatment continue to be met. Article 4 of the Order also made a similar amendment to Article 78 of the 1986 Order.

Who are the members of the Tribunal? The Tribunal has 26 part-time members at present, appointed by the Lord Chancellor of whom;

• 11 are medical members (psychiatrists),
• 8 are legal members (having legal experience as the Lord Chancellor considers suitable), and
• 7 are lay members (persons having such experience in administration, such knowledge of social services or such other qualifications or experience as the Lord Chancellor considers suitable. Schedule 3 (1)

A panel comprising a legal member as President, a consultant psychiatrist and a lay member sit to consider each case. A panel may, on occasions, comprise more than 3 members.

Three of the legal members are specifically approved to serve as president of Mental Health Review Tribunals considering applications relating to restricted patients subject to Part III of the Order. Are the rules of procedure for the Mental Health Review Tribunal contained in the Order? No. The rules of procedure for the Tribunal are contained in the Mental Health Review Tribunal Rules 1986 LINK TO Statutory Rules of Northern Ireland: Mental Health Review Tribunal (Northern Ireland) Rules 1986 (SR 1986/193)

APPLICATION TO THE MENTAL HEALTH REVIEW Tribunal How may a patient's continued detention in hospital or guardianship be considered by the Tribunal? A patient's detention in hospital or guardianship may be considered following an application or a referral to the Mental Health Review Tribunal. Who can make an application? An application can be made by:

• The person who is subject to detention in hospital or reception into guardianship. Or
• The person's nearest relative SEE Role of the Nearest Relative Appendix section

Can a child or young person subject to detention in hospital or reception into guardianship apply?

A child or young person, (under18) subject to detention in hospital has the same rights of application as any other person. However only those aged 16 or over can be received into guardianship therefore those aged 16 and under18 can apply. Can a person who is subject to detention in hospital or guardianship under sentence by a court under Part III of the Order apply to the Mental Health Review Tribunal? Yes. Persons detained under Part III have the same rights of application as persons detained under Part II of the Order.

Can a conditionally discharged patient apply? Yes, if not already recalled to hospital. Can a person subject to restriction directions under Part III of the Order apply to the Mental Health Review Tribunal? Yes, however the Tribunal cannot authorise discharge in the usual way. How may an application be made? An application may be made in writing to the Mental Health Review Tribunal or by sending a completed application form to the Mental Health Review Tribunal Office:

The Secretary
Mental Health Review Tribunal for Northern Ireland
3rd Floor
Bedford House
16 – 22 Bedford Street
Belfast
BT2 7FD

LINK TO Mental Health Review Tribunal, Patient Subject to Detention in Hospital Application and LINK TO Mental Health Review Tribunal, Patient Subject to Guardianship Application

Copies of the application forms including guidance on the information required for the application should be available within the hospital. Health and Social Care staff should ensure that the patient and those subject to guardianship should be advised throughout their period of detention or guardianship of their right to appeal to the Tribunal and must ensure that support is available to assist the patient/person in the exercise of this right. In doing so staff should take account of each individual's needs in relation to communication and understanding.

When may a person apply? An application may be made by a person subject to detention in hospital or received into guardianship in writing to the Tribunal once during the first six months dating from the date of their admission or from the date of their reception into guardianship. They can also apply in writing once during each renewal period i.e. once during the second six months and once in each yearly period thereafter if this is renewed. These rules also apply to a person detained in hospital under Part III of the Order. LINK TO Mental Health Review Tribunal, Patient Application

When can a person, previously detained in hospital under Part III and who has been conditionally discharged appeal? A conditionally discharged patient can apply to the Mental Health Review Tribunal once in the first 12 months period after their conditional discharge commenced and every 12 months thereafter. Can a patient subject to a transfer direction from prison with restrictions apply? Yes. When can the nearest relative apply? The nearest relative of a person detained in hospital or subject to guardianship may apply to the Tribunal for a review of the patient's detention in hospital or reception in guardianship on the occasions set out below:

• Once within the first 28 days from the date on which the nearest relative is informed that his order^* for the patient's discharge from detention or guardianship has been barred by the RMO (Article 14 (4) or by the RMO and an authorised social worker under Article 24 (4).
  
  * The nearest relative has a restricted power of discharge from detention in hospital or guardianship under Article 14(4). Guide paragraphs 55 – 58. Notice (72hrs) must be provided in writing to the HSCT concerned. However discharge can be barred by the RMO under Article 14(4)(a)(b) or, in the case of a patient subject to guardianship by the RMO or authorised social worker under Article 24(4).
• Where the nearest relative is barred from acting as such by county court order under Article 36, he may apply to the Tribunal once in the first 12 months following the date of the court order and once in each 12 month period for the duration of that order.

If the Tribunal uphold the decision to continue to detain the person or that the patient remains subject to guardianship, the nearest relative may apply to the Tribunal again within the following 12 months and in any subsequent 12 months during which the order remains in force. LINK TO Mental Health Review Tribunal, Nearest Relative Application

Can the nearest relative of a person subject to detention under a hospital order apply to the Tribunal? Yes, the nearest relative of an unrestricted offender patient can apply to the Tribunal once during the first 12 month period of detention in hospital or reception into guardianship and every 12 months thereafter. However the nearest relative of a person who is subject to a hospital order with restriction has no right to apply. REFERRAL TO THE MENTAL HEALTH REVIEW Tribunal Is there any requirement to refer the case of a person who is subject to detention or guardianship?

Yes, on 2 grounds:

• The Responsible Trust must refer a person whose case has not been considered by the Tribunal within the previous 2 years (1 year if the patient is under 16)
• The Department of Justice^* must refer restricted patients if the Tribunal has not considered the case for 2 years and the case of any person who has been recalled to hospital following their conditional discharge. In this case the referral must be made within 1 month of recall.

* The functions of the Secretary of State have been devolved to the Department of Justice under the Northern Ireland Act 1998 (Devolution of Policy and Justice Functions) Order 2010. All references to the Secretary of State in the Order, Guide and Code should now read Department of Justice.

May any other body/individual refer the case of a person who is subject to detention or guardianship? Yes. The following may do so:

• The Attorney General, the DHSS and Master of the Office of Care and Protection (on direction from the High Court) - may refer at any time (non – offender and unrestricted offender patients)
• RQIA – has power under Article 86 (3) (a) to refer any case of a person detained or under guardianship at any time where there are concerns regarding a patient's continued detention in hospital or reception in Guardianship.

ARRANGEMENTS FOR A MENTAL HEALTH REVIEW Tribunal HEARING What happens when the Tribunal office receive the application or referral? The Tribunal office will write to acknowledge receipt of the application and will then contact the Trust responsible for the person's care to ask for reports and documents including medical and social circumstances reports, to be returned within a defined period of time.

In the case of a restricted or conditionally discharged patient, the Department of Justice will also be contacted.

What must the Trust do when informed that the patient/person has applied to the Tribunal?

The Trust, as the responsible authority, must prepare a statement for the Tribunal to include information specified in Part A of the Schedule to the Mental Health Review Tribunal Rules and Part B namely, an up-to date medical report and up-to-date social circumstances report and any other information or observation on the application which the Trust, as the responsible authority, wishes to make.

The Trust must ensure that the appropriate professional staff are contacted and directed to prepare a medical report, a social circumstances report and any other relevant information. The Trust's statement should be sent to the Tribunal and, in the case of a restricted patient, the Department of Justice, within 3 weeks of its receipt of the notice of application.

The Trust should ensure that the preparation of the reports is not delayed. Failure to provide these reports in the timescale required leaves Trusts and hospitals vulnerable to challenge under Article 5 of the Human Rights Act 1998, particularly where the hearing is delayed or adjourned for late or non–receipt of these reports.

It should be noted that the professionals involved are, in effect, representing the detaining authority. Their reports and presentation in the Tribunal should reflect this responsibility. If either party is concerned that the patient no longer meets the criteria for detention in hospital or guardianship this matter should be discussed and resolved as a matter of urgency prior to the Tribunal hearing. If necessary, legal advice should be sought prior to the hearing from the Trust solicitors. What is the role of the Department of Justice in the case of patient subject to restrictions or conditionally discharged under Part III? The Department of Justice shall send to the Tribunal, as soon as practicable and in any case within 3 weeks of notification of the statement by the relevant Trust, a statement of such further information relevant to the application that may be available. In relation to a conditionally discharged patient the Department must send a statement to the Tribunal within 6 weeks of notification that the conditionally discharged patient has appealed their conditional discharge to include information specified in Part C and D of the schedule to the Rules. LINK TO Mental Health Review Tribunal Rules Who should prepare the Medical Report? This will usually be prepared by the Responsible Medical Officer (RMO) with responsibility for the patient's care and treatment. Who should prepare the social circumstances report?
In most situations this will be prepared by the social worker who has been involved in the patient's care and treatment as a member of the multi-disciplinary team. What must be included in the medical report? The Rules state that the medical report should include the relevant medical history of the patient and a full report on the patient's medical condition. LINK TO Guidance for Medical Report What must be included in the social circumstances report? The Rules state that the social circumstances report should include reports on the following:

• The patient's home and family circumstances, including the attitude of the patient's nearest relative or the person so acting;
• The opportunities for employment or occupation and the housing facilities which would be available to the patient if discharged;
• The availability of community support and relevant medical facilities;
• The financial circumstances of the patient.

LINK TO Guidance for MHRT Social Circumstances Report concerning patients subject to detention in hospital and Guardianship. What if the Trust or Department do not wish to disclose certain information to the applicant? The Trust or Department of Justice may request that certain information is withheld from the patient under Rule 6 of the Mental Health Review Tribunal Rules. The RMO and Social Worker, or the Department of Justice should ensure this information is contained in a separate document. The need for this request must be carefully considered and set out by the professionals involved and must be on the grounds that its disclosure would adversely affect the health or welfare of the patient or others.

This is a request which will be carefully considered by the members of the Tribunal and may or may not be granted. Where the Tribunal is minded not to disclose the information submitted under Rule 6 this will be disclosed as soon as practicable to that patient's representative if he is;

• A barrister or solicitor.
• A registered medical practitioner;
• In the opinion of the Tribunal a suitable person by virtue of experience or professional qualification.

In addition an undertaking must be given that the information is not disclosed either directly or indirectly to the applicant or (where he is not the applicant) the patient or to any other person without the authority of the Tribunal or used otherwise in connection with the application.

When will the Tribunal take place? The MHRT hearing will take place approximately 6 weeks after the application is received. Where will the Tribunal hearing take place? The hearing will take place somewhere that is convenient for the patient, most often on the hospital site if the person is subject to detention in hospital and at a suitable place in the community if the person is subject to guardianship. Will there always be a hearing? In exceptional circumstances the Tribunal may decide not to proceed with a formal hearing, if a hearing is not requested by the applicant or where it appears to the Tribunal that such a hearing would be detrimental to the health of the patient. What if the patient changes his mind about having a hearing? If the patient is the applicant and changes his mind about having a hearing, he should write to the Tribunal stating his reasons for the change of mind. The President of the Tribunal will consider the reasons and take account of the circumstances of the case before deciding whether or not to accept their request. What must the Tribunal do when the statement of the responsible authority and or the Department of Justice is received? The Tribunal will arrange the date and venue of the hearing. When these arrangements have been made, the Tribunal will write to the person again to give notification of the date, time and venue for the hearing. At least 14 days notice will be given. They will also be informed of when and where the meeting with the Tribunal doctor will take place. This is most often on the morning of the hearing.

The person's nearest relative (within the meaning of the Order) will be also be notified in writing of the date, time and venue for the hearing.

Approximately 2-3 weeks before the hearing date the person who has applied or has been referred to the Tribunal and/or their representative will be given copies of reports so that the case can be prepared. Who else will be informed? On receipt of the responsible authority's statement or, in the case of a restricted or a conditionally discharged patient, the Department of Justice's statement, the Tribunal shall give notice of the proceedings to:

• The guardian, if the person is subject to the guardianship of a private guardian;
• The Master, if the patient's financial affairs are under the control of the Office of Care and Protection;
• Any person exercising the function of the nearest relative who is not the applicant;
• Any other person who, in the opinion of the Tribunal, should have the opportunity of being heard.

How will the members of the Tribunal be selected? The members of the Tribunal who are to hear the application are appointed by the Chairman. No one who is a member or officer of the responsible authority (the detaining Health and Social Care Trust) or has a personal connection with the patient or who has recently treated the patient in a professional capacity will serve as a member of the Tribunal.

Only those legal members who have been approved to do so will act as president of a Tribunal considering an application or reference to a restricted patient.

Who can represent the person at the hearing? The person can be represented by a solicitor or barrister or can represent him or herself. He can also choose to be represented by a patient advocate. Most patients choose to be represented by a lawyer. The patient must be provided with information to allow him to arrange his legal or other appropriate representation. Will the patient have to pay for this representation? No, from December 2010 there has been a change in the financial eligibility criteria and all applicants are now entitled to free legal aid for Mental Health Review Tribunal advice, assistance and representation. A copy of this authorisation, Circular 02/11 has been published on the Legal Services Commission website. LINK TO Legal Services Commission Circular 02/11 Who cannot represent the person at the hearing? The person may not be represented by another patient, that is a person liable to be compulsorily detained or subject to guardianship or a person receiving treatment for mental disorder at the same hospital as the patient. What happens if the person does not or refuses to appoint a representative or there are concerns about his capacity to do so? In this circumstance the MHRT may direct that a representative be appointed on the person's behalf. Can the person seeking the Tribunal hearing ask for the opinion of another doctor? Yes. Any doctor authorised by or on behalf of the patient or any other person who has made the application may, at any reasonable time, visit and examine the patient in private and may inspect any records relating to the detention or treatment of the patient in hospital.

The Mental Health Review Tribunal Hearing What happens on the day of the Tribunal hearing? In the days prior to the hearing the panel (a legal member of the Mental Health Review Tribunal and a medical and lay member) will read the written reports submitted as evidence by the responsible authority or Department of Justice.

Prior to the hearing the medical member of the Tribunal will visit and interview the person whose case is to be considered by the Tribunal, in private. Any records relating to that person will be reviewed. The medical member will also speak to ward staff and other steps considered necessary will be taken to form an opinion of the patient's mental condition. The doctor's findings will subsequently be reported to the other members of the MHRT panel.

Prior to the hearing the RMO, social worker and any other Trust witnesses will usually have the opportunity to consult with the Trust's legal representatives. How is the Hearing conducted? The MHRT President will make every effort to ensure the hearing is conducted as informally as possible and will conduct the hearing in such a manner as is suitable given the health and interests of the person who has made application for the Tribunal or has been referred. Will the hearing be in private? Yes, unless the person has requested a hearing in public and the Tribunal is satisfied that this would not be detrimental to the person. Can the person choose to be accompanied to the hearing? Yes. The person can choose someone e.g. family, staff or an advocate to accompany them. This will be in addition to their authorised representative. However the Tribunal have the right to admit or exclude any person it considers appropriate.

What happens at the hearing? Prior to the hearing, the legal representatives may be asked, or may request, to appear before the panel in the absence of all the witnesses in order to deal with any legal issues that may have arisen. The medical member's preliminary findings from the examination of the patient will be shared with them and there will be an opportunity to deal with the withholding of information under rule 6 and any points of law arising.

The Tribunal may even, on rare occasions, hear evidence or require witnesses to attend regarding any preliminary issues such as deficiencies in the relevant detention forms.

At the substantive hearing, the Health and Social Care Trust case is presented through their legal representative. The panel will then hear the evidence of witnesses present on behalf of the Trust, usually the Consultant Psychiatrist (RMO) and Social Worker, followed by any evidence from the person or his representative. Both parties will be given the opportunity to ask questions and make submissions. After all the evidence has been given, the applicant , and where he is not the applicant the person who has been referred, is given the opportunity to address the Tribunal Will the information shared at the Tribunal be made public? No, unless otherwise directed by the Tribunal. Can the hearing be adjourned? The hearing may be adjourned for the purpose of obtaining additional information or other purposes it deems appropriate. If adjourned all parties shall be given notice within 14 days or earlier of the date and time of the resumed hearing.

The Decision How is the decision made? A decision will be made after careful consideration of the evidence presented. The Tribunal's decision is the decision of the majority of the panel members. In the event of a tie of votes, the legal chairman (President) will have the casting vote. The decision will be recorded in writing, along with the reasons for the decision and signed by the president. What are the possible outcomes from a MHRT hearing? After hearing all the evidence at the hearing the Tribunal will decide whether or not the patient should continue to be detained or subject to guardianship under the Order.

The possible outcomes in relation to a patient subject to detention in hospital are:

1. The Tribunal is satisfied that the patient does meet the criteria for detention in hospital or guardianship and does not direct discharge.
2. The Tribunal may direct that the patient be discharged if:
   • The Tribunal is not satisfied that the patient is suffering from mental illness or severe mental impairment or from either of those forms of mental disorder of a nature or degree which warrants his detention in hospital for medical treatment;
     or that his discharge would create a substantial likelihood of serious physical harm to himself or others.
   • The Tribunal is not satisfied, where the patient is subject to guardianship, that he is not suffering from mental illness of severe mental handicap or from either of those forms of mental disorder of a nature or degree which warrants his remaining under guardianship;
     or that it is not necessary in the interests of the welfare of the patient that he should remain under guardianship.

3. In exceptional circumstances the Tribunal may, with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship, with the intention of considering the patient's case again to ensure that these recommendations are complied with.
4. The Tribunal may adjourn the hearing.

What powers are available to the Tribunal when considering the appeal or referral of a restricted patient who is subject to a restriction order under Part III of the Order? The Tribunal may direct the conditional discharge of the patient. In this event the patient can be recalled by the Department of Justice and must comply with conditions imposed by the Tribunal at the time of discharge and any subsequent time by the Department of Justice. The Tribunal may defer the discharge of the patient until necessary arrangements are in place.

The Tribunal must direct the absolute discharge of the patient if the Tribunal is not satisfied that the patient meets the criteria for detention in hospital and the Tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

What powers are available to the Tribunal in the case of an appeal by a patient who has been conditionally discharged? The Tribunal may direct that the restrictions / conditions be amended or the patient be absolutely discharged. What powers are available to the Tribunal when considering the appeal or referral of a patient detained under Article 53 with a transfer direction under Article 55? If the Tribunal considers that the criteria for detention no longer exists, the Tribunal must notify the Department of Justice that the patient could, if subject to a Hospital Order, be absolutely or conditionally discharged. The Department of Justice has 90 days to agree to these terms, if not the patient must be returned to prison. In the case of a prisoner detained under Article 54 (2) the Department of Justice must return the prisoner to prison or remand centre if the Mental Health Review Tribunal rule that the criteria for detention no longer exists. Being told the outcome The decision of the Tribunal may be announced immediately after the hearing of the case and if not, all parties will be notified as soon as possible. A copy of the written decision will be forwarded within 14 days. Will the patient always be informed of all the reasons for a MHRT decision? In most cases the patient is informed. However in some exceptional cases the Tribunal may be of the opinion that it would not be in the best interests of the patient to be informed of all the reasons for a decision. for example, if the Tribunal was concerned that it may adversely affect the health or welfare of the patient. The Tribunal would then communicate the decision to the patient in a way it thought was appropriate and may then fully disclose its reasons for a decision to the patient's representative. What will happen if the recommendations of the MHRT are not adhered to? Where the Tribunal makes a decision with recommendations the decision will specify the time period during which the recommendations should be complied with. If at the end of this period it is clear to the Tribunal that the recommendations have not been complied with, then the Tribunal may reconvene proceedings. The Tribunal will give at least 10 days notice to all parties of the time, date and venue of the hearing.

Can the Tribunal's decision be appealed? There is no automatic right to an appeal of the MHRT decision; however it is liable to be subject to judicial review by the High Court. LINK TO CASE LAW APPENDIX Does the MHRT provide easily accessible information to patients and the public?Yes, the MHRT has a website which provides this information.
LINK TO Mental Health Review Tribunal Guide for Patients