The first limb: mental disorder, nature and degree

The 2007 amendments to the MHA altered the definition of mental disorder from the four categories used in the 1983 Act, ‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind’, to ‘any disorder or disability of the mind’ (Branton and Brookes Reference Branton and Brookes2010). The aim of this change was to widen the application of the Act to people with personality disorders that did not previously meet the stricter criteria of a psychopathic disorder with the presence of ‘abnormally aggressive or seriously irresponsible conduct’ (HM Government 2007: note 19). The amendments also qualified that ‘disorders or disabilities of the brain are not mental disorders unless (and only to the extent that) they give rise to a disability or disorder of the mind as well’ (HM Government 2007: note 17).

A mental disorder is a prerequisite for detention under the MHA. However, the legal definition of mental disorder within the MHA does not necessarily correlate with a code in a diagnostic manual such as the ICD or DSM. Instead, specific criteria of the Act must apply: the characteristics of the mental disorder termed ‘nature’ and ‘degree’ and the potential consequences of that mental disorder, namely the risks to the person’s health or safety or the safety of others.

The terms ‘nature’ and ‘degree’ are not synonymous with one another and must be specifically applied to that individual’s disorder. The term ‘nature’ refers to the mental disorder itself, its chronicity and pattern over time, its prognosis and the patient’s previous response to treatment. The word ‘degree’ refers to the current manifestation of the disorder. The tribunal need only be satisfied that either nature or degree are present for detention to continue, not both. This was laid out in the case of R v Mental Health Review Tribunal for South Thames Region Ex p. Smith [1998] (Boxes 5 and 6).Footnote ^a

Readers will notice the use of the term ‘appropriate’ in the statutory criteria. Simply describing what the disorder is and its nature and degree is not sufficient. Indeed, every person with schizophrenia has a mental disorder that has a nature, but the crux of this limb is describing why its nature or degree makes liability to detention appropriate (which can also be thought of as whether it is proportionate).

The second limb: necessary to manage risk

The second limb of the test links the mental disorder’s nature and/or degree to one of three risks: the risk to the patient’s own health or safety, or the risk to others. It is therefore important that the written and oral evidence includes a comprehensive risk assessment. However, not all risks are perpetuated or precipitated by a person’s mental disorder and therefore the presence of risks alone does not necessarily mean the statutory criteria are met. Readers will notice the use of the term ‘necessary’ in this limb. You must therefore justify how these risks are associated with the mental disorder, and in turn, justify why ongoing detention under the MHA is necessary to provide treatment and why this cannot be done in a less restrictive setting. Detention must be necessary to manage this, not simply desirable to the clinical team (Box 7).

A point of complexity can be the relationship (if any) between mental disorder and interpersonal violence. Clinically, violence is frequently multifactorial and it can be difficult to reliably discern whether violence arises solely from mental disorder or from other criminogenic factors. This is particularly so for those where personality disorder is being relied on as the mental disorder of nature or degree. The takeaway for readers is that the risk limb can only be met if these risks are related to the mental disorder being relied on as being of nature or degree. Risks emanating solely from criminogenic factors or secondary diagnoses may not be relied on.

If detention is necessary only because the required aftercare is not available, then you must explain why that aftercare is not available. This may lead to the hearing being adjourned for appropriate aftercare to be put in place (Box 5).

The wording for section 2 of the MHA is slightly different, using the terms ‘warrant’ and ‘justified’ rather than ‘appropriate’ and ‘necessary’. This may appear trivial, but in 2012 an appeal was made to the Upper Tribunal owing to the inappropriate test being made in a section 3 case (MS v North East London Foundation Trust [2013]). The decision was set aside because applying the wrong legal criteria was considered a serious legal error. The Upper Tribunal also made clear in their decision that the difference in language reflects the difference in purpose and that the conditions for detention are less demanding for section 2 than for section 3.

The third limb: appropriate treatment

The definition of appropriate treatment was clarified in the case of SF v Avon and Wiltshire MH Partnership and RB [2023] (Box 5). This made it clear that this is as crucial as the other limbs of the test. Treatment is not limited to pharmacological interventions. Section 145 of the MHA defines treatments as ‘nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care’ (HM Government 2007: notes 38 and 39). However, it must be related to a therapeutic endeavour and be progressing the patient towards discharge. Restrictive measures that deprive an individual of their liberty solely in order to maintain their safety do not qualify as treatment. Furthermore, a patient’s refusal to cooperate with this treatment or a perceived likelihood that this treatment will be ineffective does not negate this limb of the legal test.

Section 2 authorises detention for assessment and therefore the third limb, of appropriate treatment being available, is not a criterion for detention. However, the powers of section 2 still allow treatment to be delivered.

Statutory and non-statutory powers

The Ft-T has certain statutory powers that are enacted under section 72 of the MHA. For unrestricted patients, the tribunal may direct that a patient who is ‘liable to be detained under this Act’ be discharged if the statutory criteria for ongoing detention are not met. For those unrestricted cases where it does not discharge, the Ft-T has discretionary powers to make statutory recommendations that the patient be granted leave of absence, be transferred to another hospital or into a guardianship with a view to facilitating discharge at a future date. The Ft-T may also recommend that the responsible clinician consider making a CTO. Although there is no legal obligation for a clinical team to comply with such recommendations, the Ft-T can ‘further consider his case in the event of any such recommendation not being complied with’ (section 72(3)). Therefore, professional witnesses should be prepared to explain their reasoning for not acting on such recommendations. The Ft-T does not have the power to make statutory recommendations in restricted cases. However, it may make extra-statutory recommendations that are similar, but are informal and non-binding and with no associated power for the Ft-T to reconvene if they are not met.

Community treatment orders

A CTO can be recommended by the patient’s responsible clinician for those who have been detained under section 3 of the MHA or for patients detained under Part III of the Act who are not restricted. The Ft-T may hear appeals from patients who wish to be discharged from a CTO. The patient can apply for discharge from a CTO within the first 6 months of its imposition, and then once during each subsequent period of renewal. If the CTO is revoked following a recall to hospital, then the patient must be automatically referred to the Ft-T by the hospital managers. The Ft-T must be satisfied that the statutory criteria to remain on a CTO are met as specified under section 17A (Box 8), and the burden of proof remains on the supervising hospital. Otherwise, the tribunal must discharge the CTO.

Sections under Part III of the MHA (Table 1)

For restricted patients detained under section 37/41 of the MHA, the tribunal has the power to grant a conditional discharge or absolute discharge. A section 41 restriction order can be imposed only by the Crown Court at the time of sentencing if ‘it appears to the court…that it is necessary for the protection of the public from serious harm, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large’ (Sentencing Council 2020). Indeed, the word ‘serious’ qualifies the concept of ‘harm’ rather than this being based on perceived likelihood, imminency or frequency of committing further offences (R v Birch (1990)). The discretion as to whether a restriction order is imposed is for the Court, even if this is contrary to medical recommendations.

The tribunal’s powers to discharge restricted patients is laid out under section 73 of the MHA. This is ordinarily in the form of a conditional discharge, whereby the patient would no longer be detained in hospital, but would remain liable to be recalled to hospital by the Secretary of State for Justice. Patients are therefore discharged with conditions in place. These must not amount to a deprivation of liberty (Secretary of State for Justice v MM [2018]). A patient who breaches these conditions risks being recalled to hospital by the Secretary of State for Justice.

For a conditional discharge to be granted by the tribunal, the panel must be satisfied that the statutory criteria are no longer met as laid out under section 72 of the MHA. A tribunal may defer the direction for conditional discharge if practical arrangements are still outstanding to meet the proposed conditions. However, the patient must otherwise meet the criteria for conditional discharge with no further treatment required.

The tribunal can vary the conditions of the conditional discharge or remove them all together while also not absolutely discharging the patient from the liability to being recalled (DA v Central and North West London NHS Foundation Trust [2021]).

The tribunal has the power to grant an absolute discharge whereby the conditions and liability to recall from the restriction order would cease to have an effect. The burden of proof for an absolute discharge lies with the patient, making this different from other applications to the tribunal. There is no legal test as such, but there is case law of relevant factors to consider that may be of interest (R (on the application of SC & SoS Health [2005]).

Section 47/49 of the MHA refers to sentenced prisoners transferred to hospital for treatment under the Act. Patients may appeal their section, but the tribunal has no power to discharge the patient. The role of the tribunal is simply to notify the Secretary of State for Justice whether it would have discharged the patient if they had the power to do so. It is the Secretary of State who then has the power to subsequently remit the patient back to prison. For those on an indeterminate sentence (such as a life sentence or an imprisonment for public protection) who have surpassed their minimum tariff imposed by the sentencing judge, the patient may only be released into the community following a parole hearing. If the tribunal would have discharged the patient had they been subject to a section 37/41, then in addition to notifying the Secretary of State for Justice of this, the Ft-T may also provide a discretionary recommendation as to whether the patient should remain in hospital or be remitted to prison while awaiting a parole hearing.

Writing a tribunal report

The better your written report, the smoother the tribunal hearing will go. The panel will focus on areas that are not covered in the report, so the more comprehensive the report, the less they will have to ask you. Further to this, a succinct, polished report will give a good impression of your competence before the hearing. With this in mind, the following offers guidance on how to prepare written evidence to the tribunal (Box 9). Reports must comply with the 2013 practice direction made by the Senior President of Tribunals, which should be considered essential reading (Tribunals Judiciary 2013).

Start with an introductory paragraph to set the scene. Here you can describe your role, any established diagnoses, the MHA section under which the patient is detained and, if applicable, any forensic or legal considerations. It is useful to include how long you have been involved with the patient’s care.

Next provide a clear timeline of events. This should include a brief summary of relevant contact with mental health services. For example, ‘In March 2019, Mr Jones suffered a relapse of his schizophrenia and presented with agitation and paranoia. It was likely due to medication non-adherence. He was detained under section 3 of the Mental Health Act’. Establish the triggers and circumstances for significant incidents or relapses and be ready to talk about how these factors have been addressed. This will show the panel that you have a good understanding of the patient and will later fit into describing the nature of the mental disorder.

The practice direction requires you to summarise the patient’s progress since admission and it specifically prohibits you from cutting and pasting from electronic records. Focus on the relevant issues and provide summaries and any pattern of incidents that may support your opinion about the legal test. If you feel it necessary to provide the tribunal with a detailed log of incidents, then consider putting this in an appendix rather than in the main body of the report.

The legal test is applied on the day of the hearing, so the panel will expect a comment on current mental state, as this indicates the current degree of mental disorder. Include a reflection on any changes from the point of admission and what might have caused these changes. Reference should be made to the patient’s insight into their mental disorder, their need for treatment and the risks they pose. A patient’s insight may have a significant bearing on whether the statutory criteria are met.

You must give your opinion on risk to the patient’s health and safety and the protection of others. However, you must describe how these risks manifest in relation to the patient’s mental disorder. In the case of a patient with an index offence (the specific criminal offence that they were convicted of), give a brief formulation of this incident. What were the factors that led to the offence? How have they been addressed? What might happen if the patient is discharged now? Who are the potential future victims? In cases where risk to others is significant, then consider attaching a copy of the patient’s latest HCR-20 violence risk assessment as an appendix to the report.

The conclusion should explain clearly why you believe the patient does or does not meet the statutory criteria for ongoing detention. Address each limb of the test in turn (Box 4), including why detention is necessary and your opinion on whether treatment in the community is possible.

The practice direction requires you to provide a report written specifically for the hearing and not simply an addendum to an earlier report. Only file an addendum if you are directed to do so by the Ft-T, which it may do when adjourning a hearing.

Giving oral evidence

Before a trainee or specialist and associate specialist (SAS) doctor gives oral evidence, they should have observed a hearing and have supervised experience of writing a medical report (Tribunals Judiciary 2019). Furthermore, the patient’s responsible clinician should be present at a hearing if a trainee or SAS doctor is giving oral evidence without supervision (Tribunals Judiciary, 2015). Core training years are a good time to gain observational experience of tribunals and we recommend observing as many as possible.

Conclusion

This article aimed to be an educational resource for professionals giving evidence to the Ft-T, developed from both medical and legal perspectives. It is hoped that this improves confidence in approaching how to map medical concepts onto the legal test that, in turn, should improve the quality of evidence at tribunals, to the benefit of all involved.

This article comes at a time of important policy development around the MHA, which includes the role of the tribunal as one of its core safeguards. The 2019 independent review of the MHA sought to increase the frequency at which patients can appeal their detention to a tribunal and enhance their powers, such as giving patients the means to appeal treatment decisions to the tribunal. Although the latter was not adopted in the Draft Mental Health Bill 2022, it reflects ongoing political scrutiny of the MHA and the wish to adopt principles of choice and autonomy, least restriction, therapeutic benefit and the person as an individual. It is likely that the role of the Ft-T in achieving this aim will be considered again as part of future legislative reform.