Nigel Turner's HyperGUIDE to the Mental Health Act

Powers of the Mental Health Review Tribunal [MHRT]

Another page deals with Scope and Functions of the MHRT and sets out the circumstances under which the MHRT can conduct Reviews of Detention, Guardianship and Supervised Discharge. This page deals with the powers and duties of the MHRT when it is considering cases.

Powers and Duties Generally

The Mental Health Act Managers are given no real guidance in the Act itself as to how to exercise their powers of discharge under Section 23. In contrast, Section 72 sets out that the MHRT must discharge a person in some cases if certain criteria are met. Even if those criteria are not met, the MHRT may nevertheless discharge the person, unless the person is subject to a Restriction Order or Restriction Direction, in which case the MHRT can only discharge if the relevant criteria are indeed met (see Restricted Patients and the MHRT). The criteria for discharge by the MHRT are closely related to the criteria which have to be met for admission in the first place.

People detained under Section 2

The MHRT must direct that a person detained under Section 2 is discharged if:

• at the time the MHRT considers the case, the person concerned does not have a mental disorder of a nature or degree which warrants detention in hospital for assessment, or assessment followed by treatment, or
• detention is not justified in the interests of the person's own health and safety, or with a view to the protection of others.

People detained in Hospital under Sections other than Section 2

The MHRT must direct that the person is discharged if:

• at the time the MHRT considers the case, the person concerned does not have a mental disorder of a nature or degree which warrants detention in hospital for treatment, or
• it is not necessary for the health and safety of the person, or with a view to the protection of others, that the person receives such treatment or
• in the case of someone for whom a barring certificate has been issued, that the person if released would not be likely to act in a manner dangerous to him/herself or others.

Also, if the above criteria are not met, the Act requires the MHRT to take into account the following matters, in considering whether to use its general discretion to end the Section:

• the likelihood of medical treatment alleviating or preventing a deterioration of the person's condition
• in the case of mental illness or severe mental impairment the likelihood of the person, if discharged from hospital, being able to care for him/herself or obtain the care needed, or the likelihood of the person being able to avoid being seriously exploited.

Restricted Patients and the MHRT

The MHRT must, under Section 73 discharge a detained patient who is subject to a Restriction Order if the MHRT would generally do so (as in the case of anyone who is detained in hospital other than under Section 2). Provided that the MHRT is also satisfied that it is not appropriate for the person to remain liable to be recalled to hospital for further treatment, it will make an Absolute Discharge.

However, if the MHRT's view is that the option to recall the person is necessary, the MHRT can make a Conditional Discharge.

Section 74 sets out that, in the case of people who have been transferred from prison to hospital, and who are subject to a Restriction Direction, the MHRT cannot discharge without the agreement of the Home Office in line with the following principles:

1. the MHRT must inform the Secretary of State / Home Office whether the person, if they had been subject to a Restriction Order (rather than a Restriction Direction), would be entitled to either an Absolute or Conditional Discharge
2. the MHRT may recommend that, in the case of someone for whom a Conditional Discharge would otherwise be appropriate, the person should remain detained in hospital (rather than be returned to prison) if the Home Office were not to agree to the Conditional Discharge
3. a person who was transferred to hospital under Section 48 cannot be Conditionally (nor Absolutely) Discharged by the MHRT- they must return to prison [unless in the case of someone who might otherwise be Conditionally Discharged, the MHRT has made the recommendation that continued detention is hospital is preferable to a return to prison]
4. in other cases (that is, cases other than original Section 48 transfers), the Home Office may give consent to an Absolute or Conditional Discharge
5. If the Home Office does not agree to discharge within 90 days of being informed by the MHRT that discharge is appropriate, arrangements have to be made, in most cases, for the person to transfer back to prison.

   Delayed Discharge and Recommendations by the MHRT

   The MHRT can direct that a person be discharged from a Section at a future date which it specifies. [This is a facility not clearly available to the Mental Health Act Managers.] Also, the MHRT can recommend that, in order to help achieve an appropriate discharge at the future date, the person be given leave, or be transferred to another hospital, or be transferred into Guardianship. If these recommendations are not complied with, the MHRT has the option of re-considering the case.

   A Conditional Discharge (of someone who has been subject to a Restriction Order) can be deferred until such arrangements as appear to the tribunal to be neccessary to prepare for the Conditional Discharge have been made.

   The MHRT, if not discharging the person immediately, can also recommend that the Responsible Medical Officer makes an application for Supervised Discharge.

   People subject to Supervised Discharge

   The MHRT may end someone's liability to be subject to Supervised Discharge, and must do so:

   • in the case of someone who has not yet actually been discharged from hospital, if the MHRT is satisfied that the grounds for the Supervised Discharge application are not complied with at the time the MHRT considers the matter
   • in the case of someone who has left hospital, if the MHRT is satisfied that the conditions for renewing Supervised Discharge are not complied with.

   People subject to Guardianship

   The MHRT has a general discretion to end Guardianship, and must do so if:

   • at the time the MHRT considers the case, the person concerned does not have one of the four forms of mental disorder or
   • it is not necessary in the interests for the welfare the person, or with a view to the protection of others, that the person should remain under Guardianship.

   ---

   Overview page. Contents page. Introduction page.

   ---

   Copyright © Nigel Turner 1996
   
   This page last revised 26 June 1996
   While every effort has been made to ensure the accuracy and reliability of information in these pages, they are not intended to be relied upon as an authoritative statement of the law. The author cannot accept liability for errors or omissions.