This is the final report of the Tribunal, Hospital Managers and Safeguards Working Group on the Reform of Part V of the Mental Health Act 1983 (which deals with a Mental Health Tribunal's powers). I chaired the Working Group, which formed part of the Independent Review of the Mental Health Act Tribunal chaired by Sir Simon Wesseley. Some of our recommendations were accepted and found their way into the final report of the Independent Review; others did not. Perhaps the main disappointments were that two fairly straightforward recommendations were not incorporated in the report: that the tribunal's discretionary power of discharge should be restored to what was intended by Parliament, and that tribunals dealing with a restricted case should be obliged to discharge the restrictions if they are no longer necessary to protect the public from serious harm.

1. TRIBUNAL, HOSPITAL MANAGERS AND RENEWALS WORKING GROUP
FINAL OPINION OF TRIBUNAL WORKING GROUP MEMBERS ON
PART V OF THE MENTAL HEALTH ACT 1983
§1 — INTRODUCTION
This paper lists the revisions to the existing tribunal framework in Part V of the Act
which are supported by the tribunal working group.
None of the recommendations has significant resource implications. The vast majority
are resource-neutral or resource-minimal. All of them will significantly benefit those
people subject to detention or compulsion under the Act.
A separate working group paper contains proposals for more fundamental changes
to the tribunal’s jurisdiction by giving it new roles different in kind to those it currently
exercises.
However, we would not wish it to be thought that the revisions to the existing
framework suggested here are less important. Indeed, they may well be more
important in terms of bringing about necessary change because they represent the
lessons of the last 35 years: the things that practitioners have identified through long
experience as legislative weaknesses or limitations that can easily be rectified, so as
to give the tribunal broader powers to ensure that people with mental health needs
are treated in the most humane and least restrictive way possible.
Proposal Why the working group support it
§1 — TRIBUNAL POWERS IN UNRESTRICTED CASES
1 The tribunal discharge criteria (and
also therefore the detention criteria)
should be tightened.
The proposal reflects concern that too
many individuals are detained or
subject to compulsion under the 1983
Act.
The requirement that a person’s mental
disorder must be of ‘a nature or
degree’ which warrants their detention
or makes that appropriate was
originally a socially acceptable
euphemism for “lunatic”. It was
intended, and at the time understood,
to set the level of mental disorder
required at a high level. We think that
most practitioners and tribunals are no
longer aware of the severity of disorder
that phrase was intended to convey
and that something more akin to a
best interests or benefit from admission
and treatment approach is applied
today.
1

2. 2 The Act should commence with a
set of statutory guiding principles,
such as the principles currently set
out in the Code of Practice.
This will give statutory effect to guiding
principles of the kind set out in the
Code of Practice and require a tribunal
to apply them when making decisions
about whether to detain or discharge
a citizen, e.g.
2. Guiding principles
(1) All persons dealt with under this Act
shall be cared for and treated—
(a) in accordance with the European
Convention on Human Rights;
(a) wherever possible, without recourse
to formal powers or compulsion;
(b) in the least controlled facilities
possible;
(c) in such a way as to promote to the
greatest practicable degree their
self-termination and personal
responsibility;
(2) Before a court, tribunal or
individual makes any decision under
this Act concerning a patient’s care or
treatment, or the use of compulsion,
the body or person in question shall
have regard to—
(a) the requirements of subsection (1)
above;
(b) the ascertainable wishes and
feelings of the patient;
(c) the likely effect on him of any
change in his circumstances;
(d) the suitability of the proposed care
and treatment in the context of his
age, gender, sexual orientation,
social, cultural and religious
background, and other personal
characteristics;
(e) any harm which he or other
persons have suffered or are at risk
of suffering;
(f) the likelihood of the care or
treatment alleviating or preventing
a deterioration of the patient’s
condition;
(g) his needs;
(h) how capable those caring for him
are of meeting his needs.
2

3. 3 A tribunal should be required to
specify the risks of continuing
detention or compulsion,
Some practitioners limit their risk
assessments to the harm that is likely if
the patient is released. When
considering its discretionary power of
discharge, a tribunal should be
required to record both its assessment
of the risks associated with discharge
(e.g. physical harm to self or others)
and the risks associated with continued
detention (e.g. loss of family contact,
income, employment prospects,
liberty, etc). Essentially a balance-sheet
approach.
4 The tribunal’s discretionary power of
discharge should be restored to
what was intended, and always
was the case, prior to the decision
in GA v Betsi Cadwaladr University
LHB [2013] 0280 (AAC).
The GA decision was completely at
odds with the history of the legislation,
the intention of Parliament and the
statutory scheme and may have had a
significant effect on the tribunal
discharge rate. The legislation needs to
be urgently amended so as to restore
the historic position since 1959 that a
tribunal may at its discretion discharge
a patient, subject only to the usual
judicial review principles, i.e. a decision
to discharge at the tribunal’s discretion
can only be challenged if irrational,
etc.
5 Provided a bed will be available
within the next 28 days, In
unrestricted cases a tribunal which
does not discharge a patient should
be able to direct transfer to another
hospital with a view to facilitating
their discharge from hospital at a
later date.
At present the tribunal may only
recommend transfer to another
hospital. In appropriate cases this will
enable a tribunal to direct a patient’s
transfer to a hospital nearer to their
home, to a less secure facility, etc.
If a tribunal is sufficiently expert to
overrule the responsible clinician by
rescinding the section and directing
discharge then a fortiori it is also
competent to overrule the responsible
clinician or hospital managers by
directing a relaxation of the conditions
of detention or compulsion, e.g. by
directing the patient’s transfer or the
grant of leave of absence.
6 In unrestricted cases a tribunal
which does not discharge a patient
should be able to direct that the
patient be granted leave of
absence.
At present the tribunal may only
recommend the grant of leave of
absence. A tribunal which is
competent to terminate detention is
competent to authorise a relaxation of
the conditions of detention.
3

4. Following such a direction, the
responsible clinician (RC) would have
the same power to revoke the leave of
absence and to recall the patient to
hospital, and the same power to vary
the conditions of leave, as s/he has in
the case of a patient to whom the RC
has granted leave, provided that s/he
acts in good faith and there has been
a relevant change of circumstances
since the tribunal made its decision.
7 In unrestricted cases a tribunal
should be able to direct that the
patient be received into
guardianship.
At present the tribunal may only
recommend reception into
guardianship.
Guardianship has always been
woefully under-used as an alternative
to detention or a CTO.
Such a power may unleash the
potential of guardianship as a light-
touch social services-led alternative to
detention or CTOs.
The tribunal may require the local
social services authority to provide a
care plan, and must take into account
its representations as to the suitability of
guardianship, but ultimately tribunal-
imposed guardianship as a means of
terminating detention would not
require local authority consent.
8 A tribunal should not have a power
to direct or recommend that a
patient is made the subject of a
CTO on such conditions as it thinks
fit.
A CTO regime is very different to
guardianship. A guardian’s powers are
limited by statute to specifying a place
of residence, requiring the patient to
attend specified activities and
requiring access to the patient.
Guardianship is therefore a light-touch
order. The statute already provides for
detained patients to be transferred into
guardianship and extending this power
to tribunal does not change the
existing framework.
CTOs are more extensive, the
conditions are not limited by statute
and potentially very invasive, the
underlying section 3 application
remains in force, and there is a power
of recall.
4

5. If tribunals are given a power to impose
CTOs, some patients will think twice
before applying for a review out of fear
that they may end up on a Draconian
CTO that will be in force for far longer
than the section 3 application to which
they are subject. Tribunals will come to
be seen by some as part of the state
apparatus that imposes compulsion
rather than as a court that exists solely
to review and terminate infringements
of liberty that are not justified.
The evidence may suggest that
tribunals are quite risk-averse when it
comes to CTO regimes (the tribunal
discharge rate in CTO cases is 3.4%, i.e.
96-97% of applications to discharge a
CTO are refused). The effect of giving a
tribunal a CTO power (or a power of
conditional discharge) may be that in
future some tribunals will discharge
subject to a CTO and recall civil
patients who presently they discharge
from section absolutely. One could end
up with an even larger number of
citizens subject to old section 3s and
civil powers of recall lasting many
years.
9 If CTOs are to continue, tribunals will
need much greater powers to
terminate CTOs (including an
unfettered discretionary power of
discharge) and power to vary the
conditions of CTOs it does not
discharge.
The tribunal discharge rate in CTO
cases is 3.4%, i.e. 96-97% of applications
to discharge a CTO are refused. If CTOs
are to remain then, given the terms of
reference, there will need to be much
tighter control over their use and
duration.
§2 — TRIBUNAL POWERS IN RESTRICTED CASES
Section 37/41 cases
10 Provided a place is available within
28 days, a tribunal should have
power to direct that a restricted
patient be transferred to another
hospital.
The reasons why a tribunal’s powers are
extremely limited are historical. When
the government lost the X case, it was
forced by the European Court of
Human Rights to empower tribunals to
release patients who it considered no
longer required detention in hospital.
5

6. However, it went no further than it was
required to do. It did not authorise a
tribunal to discharge restricted patients
who would still benefit from being in
hospital but no longer needed to be
detained in hospital; it did not authorise
a tribunal to recommend leave of
absence or transfer to a less secure
hospital; and it did not authorise a
tribunal to lift the section 41 restrictions
if satisfied they were no longer required
whilst continuing detention in hospital
under section 37.
It is illogical that a tribunal which is
authorised by statute to discharge a
restricted patient absolutely cannot
take many steps along the road to
discharge that fall short of this. There is
no good reason why a court/tribunal’s
powers should be less than those
exercisable by the Secretary of State or
civil servants.
11 Where no bed at another hospital is
available within 28 days, a tribunal
should have power to recommend
that a patient is transferred to a less
secure hospital of the kind
specified by it.
The tribunal should have a power to
reconvene if the recommendation is
not carried out.
Where a recommendation is not
carried out, the effect would be to set
the clock running for European
Convention purposes. In other words,
there would be the possibility of judicial
review proceedings or an ECHR
challenge if the patient was then
detained in more secure conditions
than necessary for a very prolonged
further period.
12 A tribunal should have power to
direct that a restricted patient be
granted leave of absence on such
conditions as it specifies.
Following such a direction, the
responsible clinician and Secretary of
State would have the same power to
revoke the leave and to recall the
patient to hospital, and the same
power to vary the conditions of leave,
as they have now provided they act in
good faith and there has been a
relevant change of circumstances
since the tribunal made its decision.
6

7. 13 A tribunal should have the power to
terminate the section 41 restrictions
if satisfied that they are no longer
necessary in order to protect the
public from serious harm.
The Secretary of State has this power
and the tribunal should have the same
powers as the Secretary of State and
civil servants. This falls squarely within
the tribunal’s area of expertise.
Section 47/49 and 48/49 hearings
14 The functions currently exercised by
the Parole Board in respect of
section 47/49 patients should be
exercised by the tribunal which
considers the patient’s case under
section 74.
It appears that the risk assessment
process undertaken by the Parole
Board substantially duplicates that
undertaken already by the tribunal. This
is a considerable waste of money and
resources. Even when one allows for
the fact that some financial and other
resources will need to be transferred
from the Parole Board to the tribunal to
compensate for that part of the work
which is not a duplication, there is an
opportunity for considerable financial
savings.
15 Where practicable the medical
member of the tribunal in such
cases should have significant
forensic experience
This recommendation addresses a
concern that the medical member in
such cases should have significant
forensic experience.
16 Consideration should be given to
co-opting members of the Parole
onto the tribunal
This would require an amendment to
the primary legislation.
17 Section 74 should be redrafted in
plain English
Many practitioners and patients find
section 74 confusing.
Conditional discharge
18 A conditionally discharged patient
shall be absolutely discharged by
the tribunal unless the tribunal is
satisfied that the special restrictions
are necessary in order to prevent a
risk of serious harm to the public.
Section 75 allows a tribunal to do one
of three things: nothing, vary the
conditions of discharge, direct that the
restrictions shall cease to have effect.
This is too general. The special
restrictions exist to protect the public
from serious harm and that should be
the test for absolute discharge in
section 75.
§3 — OTHER TRIBUNAL ISSUES
7

8. 19 Invalid applications: Where a
tribunal finds that a Part II
application is invalid, it shall record
its finding and direct the patient’s
release from detention or
compulsion pursuant to that
application. This shall not prevent
the patient’s detention under a
new, valid, application.
For many years it has been believed
that a tribunal has no authority to
discharge a section 2, 3 or 7
application which is invalid/materially
defective. In other words it is neither
bound to discharge the application
and nor does it have a discretionary
power to discharge it.
The supposed authority for this
interpretation is dicta of Ackner LJ in R
v Hallstrom and another, ex p W [1986]
1 QB 824. In fact, Neill and Glidewell
LJJ expressly refused to follow Ackner
LJ on this point and Ackner LJ did not
consider the earlier case of Re VE
(mental health patient) [1973] 1 QB 452
where the Court of Appeal indicated
that a patient held under an invalid
application should have been
discharged by the tribunal.
This recommendation provides a much
more cost-effective way of revoking
invalid applications than the present
mechanism.
The tribunal may defer its decision in
appropriate cases to enable a new
application to be made that complies
with the legal formalities.
20 A tribunal should have no such
power in Part III cases.
Part III orders are made by a court and
the authority to detain a person subject
to a Part III direction is not one which
derives solely from the 1983 Act (the
individual will be subject to a sentence
of imprisonment, remand in custody,
etc).
21 Tribunal membership: The statute
should include a requirement that
judges/legal members of the
tribunal (including the members of
an Upper Tribunal panel hearing a
mental health case) are able to
demonstrate suitable expertise and
experience as a solicitor or barrister
in practice of the application of the
Mental Health Act 1983
For economic reasons the current trend
is towards generic tribunal judges.
While that approach is convenient
from an administrative point of view it
must come at a cost in terms of the
effectiveness and confidence of the
judge and their understanding of
practice issues.
8

9. Indeed, the whole original purpose of
tribunals was that a conventional court
was not appropriate to the particular
field because of its specialist nature.
There is therefore an argument that
tribunal judges should demonstrate
experience and expertise in the field,
similar to the section 12(2) requirement
for medical practitioners.
This recommendation was opposed by
the tribunal but had the unanimous
support of all other working group
members.
22 Tribunal rules: Section 78 of the Act,
which deals with tribunal rules,
should require the Secretary of
State and the tribunal to seek to
ensure that the tribunal rules are as
simple and short as possible, in
plain English, understandable by
most applicants, and wherever
possible encourage informality and
flexibility.
There has been a very unhelpful
tendency in recent years for mental
health rules and procedures to
become ever more complicated. The
tribunal rules are significantly longer
than their predecessor rules. The rules
should be drafted so as to encourage
informality; keeps costs down by
minimising form-filling, directions and
interlocutory applications; and enable
the rules to be flexibly interpreted and
applied to suit the mental health and
needs of the patient. All of this is in
keeping with the original idea of
tribunals.
A
Anselm Eldergill, 11 September 2018
9

10. Indeed, the whole original purpose of
tribunals was that a conventional court
was not appropriate to the particular
field because of its specialist nature.
There is therefore an argument that
tribunal judges should demonstrate
experience and expertise in the field,
similar to the section 12(2) requirement
for medical practitioners.
This recommendation was opposed by
the tribunal but had the unanimous
support of all other working group
members.
22 Tribunal rules: Section 78 of the Act,
which deals with tribunal rules,
should require the Secretary of
State and the tribunal to seek to
ensure that the tribunal rules are as
simple and short as possible, in
plain English, understandable by
most applicants, and wherever
possible encourage informality and
flexibility.
There has been a very unhelpful
tendency in recent years for mental
health rules and procedures to
become ever more complicated. The
tribunal rules are significantly longer
than their predecessor rules. The rules
should be drafted so as to encourage
informality; keeps costs down by
minimising form-filling, directions and
interlocutory applications; and enable
the rules to be flexibly interpreted and
applied to suit the mental health and
needs of the patient. All of this is in
keeping with the original idea of
tribunals.
A
Anselm Eldergill, 11 September 2018
9