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APPEARING BEFORE APPEARING BEFORE THE MENTAL HEALTH THE MENTAL HEALTH TRIBUNALTRIBUNAL

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IndexIndexThe Provisions of the Act relating to Tribunal hearings 3 – 6What is Evidence

7Section 24 Continuing Care Orders 8 - 16The Tribunal’s function in reviewing the Order 9What evidence is needed to satisfy the Tribunal of the s24 criteria 10 - 14How does the Tribunal determine the level of risk 12 What evidence is needed of the least restrictive alternative 15 – 16

Section 40 Community Treatment Orders 17 – 23The Tribunal’s function in reviewing the Order 18What evidence is needed to satisfy the Tribunal of the s40 criteria 19 - 24How does the Tribunal determine the level of risk 12 What evidence is needed of the least restrictive alternative 25 - 26

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Section 24Section 24

24.24. A person may be detained as an involuntary patient in an approved  A person may be detained as an involuntary patient in an approved hospital if – hospital if –

(a)(a) the person appears to have a mental illness; and the person appears to have a mental illness; and

(b)(b) there is, in consequence, a significant risk of harm to the person or there is, in consequence, a significant risk of harm to the person or others; andothers; and

(c)(c) the detention of the person as an involuntary patient is necessary to the detention of the person as an involuntary patient is necessary to protect the person or others; andprotect the person or others; and

(d)(d) the approved hospital is properly equipped and staffed for the care the approved hospital is properly equipped and staffed for the care or treatment of the personor treatment of the person

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Section 40Section 40

40. A community treatment order may be made for the treatment of a 40. A community treatment order may be made for the treatment of a person only ifperson only if

(a)(a) The person has a mental illness; andThe person has a mental illness; and

(b)(b) There is, in consequence, a significant risk of harm to the There is, in consequence, a significant risk of harm to the person or person or others unless the mental illness is treated; andothers unless the mental illness is treated; and

( c)( c) The order is necessary to ensure that the illness is properly The order is necessary to ensure that the illness is properly treated; andtreated; and

(d)(d) Facilities or services are available for the care and Facilities or services are available for the care and treatment of the treatment of the personperson

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Section 7 of the Act requires that:Section 7 of the Act requires that:

In exercising powers conferred by this Act in relation to an In exercising powers conferred by this Act in relation to an involuntary patient, the following principles must be observed:involuntary patient, the following principles must be observed:

a)a) restrictions on the liberty of the patient and interference with restrictions on the liberty of the patient and interference with the patient's rights, dignity and self-respect must be kept to the patient's rights, dignity and self-respect must be kept to the minimum consistent with the need to protect the patient the minimum consistent with the need to protect the patient and others;and others;

b)b) effect must, if practicable, be given to the patient's wishes so effect must, if practicable, be given to the patient's wishes so far as that is consistent with – far as that is consistent with –

(i)(i) the patient's best interests; and the patient's best interests; and(ii)(ii) the need to protect the patient and others. the need to protect the patient and others.

The Least Restrictive Alternative For The The Least Restrictive Alternative For The PatientPatient

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Bound by the Rules of Natural Bound by the Rules of Natural JusticeJustice

Section 56 of the Act states the Tribunal is bound by the rules Section 56 of the Act states the Tribunal is bound by the rules of natural justiceof natural justice.  .  

These rules require:These rules require:

That the Tribunal is fair; That the Tribunal is fair;

That unless there is a substantial risk of harm to the patient or others, That unless there is a substantial risk of harm to the patient or others, were the material disclosed, it does not operate upon material of were the material disclosed, it does not operate upon material of which the patient is not aware;which the patient is not aware;

It gives all parties an appropriate chance to participate in the hearing;It gives all parties an appropriate chance to participate in the hearing;

It gives all parties an opportunity to comment on material upon which It gives all parties an opportunity to comment on material upon which it intends to base its decision.it intends to base its decision.

  

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The EvidenceThe Evidence

The Tribunal will need to hear evidence from a person who has had the The Tribunal will need to hear evidence from a person who has had the care of a patient and who is qualified to express a view on each of the care of a patient and who is qualified to express a view on each of the section 24 or section 40 criteria. section 24 or section 40 criteria.

This need not be the same person. This need not be the same person.

The evidence will need to be sufficient that in relation to each criteria The evidence will need to be sufficient that in relation to each criteria the Tribunal can state that it is more likely than not that the criteria the Tribunal can state that it is more likely than not that the criteria are fulfilled. are fulfilled. 

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Section 24 Continuing Care Section 24 Continuing Care OrdersOrders

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When the Tribunal reviews a Continuing Care Order their role is to ensure When the Tribunal reviews a Continuing Care Order their role is to ensure that at the time of the hearing:-that at the time of the hearing:-

The section 24 criteria are fulfilled;The section 24 criteria are fulfilled;

The detention of the person as an involuntary patient is the least The detention of the person as an involuntary patient is the least restrictive alternative for the patient after balancing the patient’s restrictive alternative for the patient after balancing the patient’s right to freedom with the public’s need for safety.right to freedom with the public’s need for safety.

Review of a Continuing Care OrderReview of a Continuing Care Order

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To satisfy this criteria the hospital will need a person to give evidence of To satisfy this criteria the hospital will need a person to give evidence of the symptoms recently displayed by the patient and what recognised the symptoms recently displayed by the patient and what recognised mental illness these symptoms are usually associated with. mental illness these symptoms are usually associated with. 

This evidence should be given in written or oral form by a psychiatrist or This evidence should be given in written or oral form by a psychiatrist or a psychiatric registrar who has observed the patient’s symptoms.a psychiatric registrar who has observed the patient’s symptoms.

It is important that this evidence comprehensively describes both the It is important that this evidence comprehensively describes both the positive and negative symptoms that led to the patient’s admission on positive and negative symptoms that led to the patient’s admission on this occasion. this occasion.

The clinician should point out to the Tribunal the negative symptoms The clinician should point out to the Tribunal the negative symptoms which although not evident to the Tribunal at the hearing are present in which although not evident to the Tribunal at the hearing are present in the patient, such as lack of motivation, poor concentration and social the patient, such as lack of motivation, poor concentration and social withdrawal. withdrawal.

Parliament has used the word ‘appears’. It does not require florid or Parliament has used the word ‘appears’. It does not require florid or active symptoms to be present at the time of the hearingactive symptoms to be present at the time of the hearing..

The Person Appears to Have a The Person Appears to Have a Mental IllnessMental Illness

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In Consequence A Significant In Consequence A Significant Risk Of Harm Risk Of Harm Harm:Harm: Harm is defined in section 3 as including serious mental or physical Harm is defined in section 3 as including serious mental or physical

deterioration.deterioration.

  Harm can be mental, physical, financial, social, to employment, to a Harm can be mental, physical, financial, social, to employment, to a relationship, to the person or to another personrelationship, to the person or to another person

Risk of Harm:Risk of Harm: The risk that this harm will occur must be because of the mental illness The risk that this harm will occur must be because of the mental illness

The risk that the harm will occur must be significantThe risk that the harm will occur must be significant

‘‘Significant’ has the ordinary English meaning: major, noteworthy, Significant’ has the ordinary English meaning: major, noteworthy, momentousmomentous

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How Will the Tribunal Determine the Risk How Will the Tribunal Determine the Risk of Harm? of Harm? 

The best predictor of the future is the past.The best predictor of the future is the past.In order to assess risk the Tribunal will look at the patient’s past behaviour. In order to assess risk the Tribunal will look at the patient’s past behaviour. In order to gauge whether the behaviour is a consequence of the mental In order to gauge whether the behaviour is a consequence of the mental

illness, and the degree of risk that the behaviour will re-occur, the illness, and the degree of risk that the behaviour will re-occur, the Tribunal requires evidence of:-Tribunal requires evidence of:-

The current clinical situation of the patient, including insight, attitude and The current clinical situation of the patient, including insight, attitude and current symptoms current symptoms

The factors which will impact upon the patient on discharge, including The factors which will impact upon the patient on discharge, including treatment plan and level of support, level of compliance, stress of living treatment plan and level of support, level of compliance, stress of living in the community and the presence or absence of stress factors which in the community and the presence or absence of stress factors which have in the past led to an episode of illnesshave in the past led to an episode of illness

A key factor which the Tribunal will take into account is the likely timing A key factor which the Tribunal will take into account is the likely timing of the re-occurrence of the behaviour. That is, is the risk imminent, or of the re-occurrence of the behaviour. That is, is the risk imminent, or are we looking at a harm that may happen in 12 months time?are we looking at a harm that may happen in 12 months time?

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The Detention Is Necessary To Protect The The Detention Is Necessary To Protect The Person Or OthersPerson Or Others

The detention must be necessary not just advisable. The detention must be necessary not just advisable. 

It must be established that the person or others could not be It must be established that the person or others could not be protected in any other practicable manner. protected in any other practicable manner. 

That the detention will in fact afford protection from the harm.That the detention will in fact afford protection from the harm.

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Care or Treatment of The PersonCare or Treatment of The Person

The Approved Hospital Is Properly The Approved Hospital Is Properly Equipped And Staffed For The Care Or Equipped And Staffed For The Care Or Treatment Of The Person:Treatment Of The Person:

This requires evidence that the hospital can provide either care or This requires evidence that the hospital can provide either care or treatment for this particular patient.treatment for this particular patient.

It does not require the hospital to establish both. It would be sufficient It does not require the hospital to establish both. It would be sufficient that the hospital is providing care, that is a bed, food,looking after the that the hospital is providing care, that is a bed, food,looking after the patient’s physical needs without showing that they are providing any patient’s physical needs without showing that they are providing any form of treatment for the patient.form of treatment for the patient.

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Least Restrictive AlternativeLeast Restrictive Alternative

In order to determine if the order is the In order to determine if the order is the minimum consistent with safety, the minimum consistent with safety, the Tribunal requires evidence:Tribunal requires evidence:

That the patient cannot be a voluntary patientThat the patient cannot be a voluntary patient

In respect of a Continuing Care Order that the patient would In respect of a Continuing Care Order that the patient would not comply with a Community Treatment Order.not comply with a Community Treatment Order.

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Evidence Of Least Restrictive Evidence Of Least Restrictive AlternativeAlternative

The following are the types of evidence that the Tribunal will consider The following are the types of evidence that the Tribunal will consider when looking at the least restrictive alternative.when looking at the least restrictive alternative.

In any particular case however it will depend on the context of these In any particular case however it will depend on the context of these occurrences whether they are in fact indicative of another less occurrences whether they are in fact indicative of another less restrictive alternative not being in the interests of either the public’s or restrictive alternative not being in the interests of either the public’s or the patient’s safety. the patient’s safety. 

The patient has stated that without an order he would not comply with The patient has stated that without an order he would not comply with the treatment plan.the treatment plan.

The patient has attempted, or has in the past absconded from the The patient has attempted, or has in the past absconded from the hospital.hospital.

The patient is still unwell and is stating that he will leave the hospital.The patient is still unwell and is stating that he will leave the hospital.

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Section 40 Community Section 40 Community Treatment OrdersTreatment Orders

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Review of a Community Treatment Review of a Community Treatment OrderOrder

When the Tribunal reviews a Community Treatment Order their role is to ensure that at the When the Tribunal reviews a Community Treatment Order their role is to ensure that at the time of the hearingtime of the hearing

The section 40 criteria are fulfilled;The section 40 criteria are fulfilled;

After balancing the patient’s right to minimum interference and the need to protect the After balancing the patient’s right to minimum interference and the need to protect the patient and others the order is the least restrictive alternative in ensuring that the patient and others the order is the least restrictive alternative in ensuring that the patient’s illness is properly treatedpatient’s illness is properly treated

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To satisfy this criteria the treating team will need a person to To satisfy this criteria the treating team will need a person to give evidence that the person has been diagnosed as suffering give evidence that the person has been diagnosed as suffering a mental illness. a mental illness. 

This evidence should be given in written or oral form by a This evidence should be given in written or oral form by a psychiatrist or a psychiatric registrar who has observed the psychiatrist or a psychiatric registrar who has observed the patient’s symptoms.patient’s symptoms.

The Person Has a Mental IllnessThe Person Has a Mental Illness

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There is, in Consequence, a Significant There is, in Consequence, a Significant Risk of Harm to the Person or Others Risk of Harm to the Person or Others

Harm:Harm:

Harm is defined in section 3 as including serious mental or physical Harm is defined in section 3 as including serious mental or physical deterioration.deterioration.

  Harm can be mental, physical, financial, social, to employment, to a Harm can be mental, physical, financial, social, to employment, to a relationship, to the person or to another personrelationship, to the person or to another person

Risk of Harm:Risk of Harm:

The risk that this harm will occur must be because of the mental illness The risk that this harm will occur must be because of the mental illness

The risk that the harm will occur must be significantThe risk that the harm will occur must be significant

‘‘Significant’ has the ordinary English meaning: major, noteworthy, Significant’ has the ordinary English meaning: major, noteworthy, momentousmomentous

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How Will the Tribunal Determine the Risk How Will the Tribunal Determine the Risk of Harm? of Harm? 

The best predictor of the future is the past.The best predictor of the future is the past.In order to assess risk the Tribunal will look at the patient’s past behaviour. In order to assess risk the Tribunal will look at the patient’s past behaviour. In order to gauge whether the behaviour is a consequence of the mental In order to gauge whether the behaviour is a consequence of the mental

illness, and the degree of risk that the behaviour will re-occur, the Tribunal illness, and the degree of risk that the behaviour will re-occur, the Tribunal requires evidence of:-requires evidence of:-

The current clinical situation of the patient, including insight, attitude and The current clinical situation of the patient, including insight, attitude and current symptoms current symptoms

The patient’s level of compliance with treatment in the pastThe patient’s level of compliance with treatment in the past

The level of support and services offered to the patient in the pastThe level of support and services offered to the patient in the past A key factor which the Tribunal will take into account is the likely timing of A key factor which the Tribunal will take into account is the likely timing of

any issue arising with compliance. That is, is the risk imminent, or are we any issue arising with compliance. That is, is the risk imminent, or are we looking at a harm that may happen at some unknown point in the future?looking at a harm that may happen at some unknown point in the future?

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Unless the Mental Illness is TreatedUnless the Mental Illness is Treated

There is, in consequence, a significant risk of harm to the person or There is, in consequence, a significant risk of harm to the person or others unless the mental illness is treatedothers unless the mental illness is treated

The Treating Team do not need to establish that at the present time The Treating Team do not need to establish that at the present time there is a significant risk of harm to the person or othersthere is a significant risk of harm to the person or others

They have to establish however that that level of risk would be present They have to establish however that that level of risk would be present were the mental illness not treatedwere the mental illness not treated

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The Order is Necessary to The Order is Necessary to Ensure that the Illness is Ensure that the Illness is Properly TreatedProperly Treated

The order must be necessary not just desirableThe order must be necessary not just desirable

It must be able to ensure proper treatmentIt must be able to ensure proper treatment

Proper treatment is treatment that reduces the patient’s Proper treatment is treatment that reduces the patient’s symptomatology, reduces the risk of harm to themselves or others, symptomatology, reduces the risk of harm to themselves or others, has regard to the patient’s dignity and self respect and autonomy, and has regard to the patient’s dignity and self respect and autonomy, and does not produce side effects that significantly hamper the patient’s does not produce side effects that significantly hamper the patient’s ability to interact in the communityability to interact in the community

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Facilities or Services are AvailableFacilities or Services are Available The treating team must establish that the facilities or services for the The treating team must establish that the facilities or services for the

proper treatment of the patient are in fact available for that patient.proper treatment of the patient are in fact available for that patient.

They will need to give evidence of the way in which the patient will be They will need to give evidence of the way in which the patient will be cared for in the community, where and from whom will they receive cared for in the community, where and from whom will they receive their treatment, who will ensure compliance, who will assist the their treatment, who will ensure compliance, who will assist the patient with life stressors that have previously led to a deterioration of patient with life stressors that have previously led to a deterioration of their mental state, and what supports are available to the patienttheir mental state, and what supports are available to the patient

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Least Restrictive AlternativeLeast Restrictive Alternative

In order to determine if the order is the In order to determine if the order is the minimum consistent with the illness minimum consistent with the illness being properly treated, the Tribunal being properly treated, the Tribunal requires evidence:requires evidence:

That the patient cannot be a voluntary patientThat the patient cannot be a voluntary patient

That the illness cannot be properly treated without an orderThat the illness cannot be properly treated without an order

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Evidence of Least Restrictive AlternativeEvidence of Least Restrictive Alternative

The following are the types of evidence that the Tribunal will consider The following are the types of evidence that the Tribunal will consider when looking at the least restrictive alternative.when looking at the least restrictive alternative.

In any particular case however it will depend on the context of these In any particular case however it will depend on the context of these occurrences whether they are in fact indicative of another less occurrences whether they are in fact indicative of another less restrictive alternative not being in the interests of either the public’s or restrictive alternative not being in the interests of either the public’s or the patient’s safety. the patient’s safety. 

The patient has stated that without an order he would not comply with The patient has stated that without an order he would not comply with the treatment plan.the treatment plan.

The patient has in the past failed to comply with proper treatment.The patient has in the past failed to comply with proper treatment. The patient without proper treatment is likely to become a significant The patient without proper treatment is likely to become a significant

risk to himself or others.risk to himself or others.