Mental Health Law and Practice by Professor Phil Fennell


Mental Health: Law and Practice is a comprehensive, authoritative and practical guide to the operation of mental health legislation in the UK.

This new edition builds on the success of Mental Health: The New Law (Jordans New Law Series) which was published in response to the Mental Health Act 2007.

This edition has been extensively revised to include all the latest developments including:

– changes to Tribunal system following the implementation of the Tribunals Courts and Enforcement Act

– the Mental Health Act Code of Practice 2008

– introduction of the Deprivation of Liberty provisions and accompanying Code of Practice

The text of the Mental Health Act 1983 (as amended) is reproduced in full, together with selected provisions from other relevant statutes.

March 2011 2nd edition Papercover £55.00 ISBN 978 1 84661 2404

Order your copy today om 28 days’ approval!
Telephone 0117 918 1492, Email or

Response of the Mental Health Lawyers Association to the Rule 35 Consultation

1. Introduction
The Mental Health Lawyers Association (MHLA) represents the overwhelming majority of solicitors and solicitors firms who represent those detained in hospital. Our members have been involved in many significant cases that have helped establish the rights of vulnerable people. The Association was founded in 2000 and has contributed to many consultations on issues that concern our members and those we represent. The Association is recognised as the organisation representing specialist lawyers in the field by bodies including the Law Society, the Judiciary, the charity MIND and the Ministry of Justice itself. We have met with a range of Government and parliamentary figures, including Ministers

2. Community Treatment Orders
In its response to the proposal of Community Treatment Orders (“CTOs”) in the Mental Health Act 2007, this Association opposed their introduction. We felt they were too restrictive on the liberty of patients and we did not consider there was any proof that they would work or otherwise be proportionate to the restrictions they would create. We felt resources would be better put into adequate aftercare support as we felt this was the key factor in patients relapsing. We did not consider “legalising” such supervision would generally be useful in this context. We noted this was a view in part supported by a Department of Health commissioned survey of community treatment orders equivalents from different parts of the world.

However the Association felt that if CTOs were to be introduced there needed to be a rigorous system of reviews to their imposition.

3. Consultation Responses
Q.1 Do you agree that the Tribunal ought to be able to determine a reference in respect of a community patient without a hearing, provided the patient has given valid consent.

The overwhelming response from our members is to oppose these plans for a number of reasons:

(a) A major concern of the Association is the issue of “valid consent”. How is this to be assessed? If a patient simply signs and returns a form there will be no proper appreciation of his or her capacity. If the assessment is to be carried out by Responsible Clinician (“RC”) then it could be said that this not a neutral assessment as the RC has an interest in the CTO continuing. In turn this would introduce a major flaw in the important statutory check on CTOs which Parliament had in mind when voting for this legislation. We note there will be no proposed access legal representation or IMHA as part of this process. In these circumstances we consider that European Convention on Human Rights will be breached at the same point s as set out in (b) below.

(b) We have considerable concern as to how effective a “paper review” can be in carrying out the Tribunal’s statutory duties. Few of us have ever been in Tribunal hearings where the taking of oral evidence has not been of considerable significance in the decision making of the Tribunal, even if this is simply to update evidence before the Tribunal, so that it reflects the exact position when the Tribunal makes its decision. We do not consider it satisfactory, nor compliant with Articles 6 or 8 of the European Convention on Human Rights, or perhaps Article 5, that a paper review only is carried out. Some of our members still recall proceedings under 1959 Mental Health Act where evidence was tested with much less rigour than now especially because of more paper hearings; they fear a return to those “dark days”.

(c) It has been said that many patients do not want intrusive referrals. However there are a range of reasons we are aware of as to why patients may not want to take part in hearings. First, patients whilst wanting to get off a CTO, frequently do not to come back to hearing in a hospital where they were detained. Often they fear that something they say or do in a hearing will “recall” them back onto a detaining section; something of course which is all too easy with a CTO. Others simply do not want to meet the clinical team, especially with the Responsible Clinician, unnecessarily, again fearing for their liberty. Patients in these situations need support from both Independent Mental Health Advocates (“IMHAs) and legal representatives to exercise their rights. Here referrals may have a critical role to play in that the patients will hopefully meet with both legal representatives and IMHAs when they might not otherwise have done so thereby potentially giving them the confidence to exercise their legal rights to challenge the CTOs.

(d) We understand that some have expressed the view that if patients are generally “happy” on a CTO that they should not be forced to be involved in a Tribunal hearing. However, this can hardly generally be the case otherwise why is the CTO required at all? The original logic behind such a section was to deliver a degree of coercion into community treatment: if the patient is happy to accept it, why the need for coercion?

(e) We are greatly concerned that without regular reviews into CTOs they will simply drift on for years as there will be no effective challenge to them in cases where perhaps for the reasons outlined in (c) above.

4. Other Questions
We have nothing to add to what we have outlined above at this stage.

We appreciate that there may be financial and administrative reasons why the Tribunal is considering removing automatic referrals in CTO cases. However for the reasons set out above this Association strongly opposes them and considers that consequential breaks in the European Convention on Human Rights will arise. We note, also, that neither the Tribunal nor the Department of Health has commissioned any research into why certain patients are not exercising their rights in this area.

We would be very happy to discuss these issues further

Mental Health Lawyers Association 9th August 2011

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MHLA Response to Draft Guidance on IMHAs



  1. The Mental Health Lawyers Association (MHLA) has received a copy of the draft document on the Role of Independent Mental Health Advocates (IMHAs) in Tribunal hearings. MHLA would like to comment on the document and put forward their views on IMHAs at such hearings.


  1. MHLA accepts that there has been confusion and difficulties at Mental Health Tribunals in relation to the role of IMHAs


  1. The problem has arisen due to the lack of statutory definition of the IMHA’s role at Tribunals. MHLA welcomes the provision of a Guidance Note to assist all parties and attendees at Tribunals.


  1. MHLA takes the view that IMHAs must only be present at Tribunals on the expressed request of the patient and that this must be communicated to the Tribunal office at least 24 hours before the hearing and must also communicate this to the legal representative. Such communication shall be in writing.  MHLA feels that this will allow the legal representative to discuss the role of the IMHA at the hearing taking into account the particular client and their needs and requirements.  MHLA are of the opinion that some of the confusion arises due to the IMHA attending at the last minute, at the door of the Tribunal and there is no opportunity to clarify and agree on matters regarding the way in which the hearing will proceed.


  1. MHLA is concerned that the attendance of an IMHA could be as an active participant, assisting the patient with understanding evidence; as a witness, giving evidence; as an observer, supporting the patient, by their presence or even as a ‘representative’ on behalf of the patient.  Clearly, it would be of assistance to the Tribunal and all parties for this to be clarified at the beginning or prior to the start of the hearing so as to avoid any short adjournments during proceedings.


  1. The role of the IMHA should not interfere with the role of the legal representative acting on behalf of the patient.  The role of the legal representative is very clearly defined and does not require any further clarification. MHLA accepts that there may be situations when the IMHA takes on the role of representative under Rule 11(1).


  1. MHLA agrees on the position of Non-disclosure of material should extend to the IMHA. The legal representative is bound by the Rules relating to non-disclosure but IMHAs are not bound by the same Rules unless they are the ‘representative’ and give undertakings. Again, we are of the opinion that this causes difficulties and is best avoided by the IMHA not being involved in matters regarding non-disclosure where the patient is legally represented.


  1. MHLA accepts that there may be occasions when an IMHA may be asked to give evidence. We are of the opinion that this situation is no different when the patient has asked for a person (friend or family) to attend and give evidence to the Tribunal. Such issues are discussed with the legal representative and their client beforehand and this is communicated to the Tribunal at the beginning of the hearing when preliminary matters are being discussed.


  1. The proposal in the Guidance Note setting out such matters regarding evidence from an IMHA, is supported by MHLA.


  1. MHLA does accept that an IMHA’s role does not include the asking of questions of any parties (or of the Tribunal Panel) during the proceedings where the patient is legally represented. Such action must be addressed at the beginning of the hearing and enforced during the hearing, should it arise.


  1. MHLA is aware that there have been issues with note keeping by parties and attendees at Tribunal hearings. MHLA’s position on this is that only the Tribunal Judge and the legal representative should take written notes. MHLA accepts that witnesses do take brief notes in relation to points in order to refer to these when they give evidence.  In relation to IMHAs, MHLA can see no reason why just note taking would be necessary or justified. MHLA would like there to be clear guidance on this position generally. It is our opinion, that should parties feel that such notes are necessary, then they should be surrendered to the Tribunal panel at the end of the hearing for disposal.


  1. MHLA accepts that an IMHA can access the full written reasons for the decision by asking for a copy from the patient.


  1. MHLA broadly welcomes the draft guidance on the role of IMHAs at Tribunals and such guidance will be of assistance for all persons concerned with the smooth running of Tribunals.




11 November 2010



Mind’s Care in Crisis Campaign

Care in Crisis: an inquiry into acute mental health services

Is crisis care working? Mind’s Care in Crisis campaign is calling for evidence to be submitted to its independent inquiry investigating the state of acute and crisis mental health services. This includes all adult in-patient care, crisis resolution teams, emergency departments, crisis houses and alternative approaches.

Mind will use this evidence to campaign for improved care across all adult acute and crisis mental health services in England and Wales. We are keen to hear from everyone with experience, knowledge and ideas on any aspect of this crucial part of mental health care, including lawyers, advisers, advocates, interpreters and tribunal members. We are interested in both individual and organisational views.

If you can help, please complete the Care in Crisis inquiry survey, write to Alison Cobb, Senior Policy and Campaigns Officer, Care in Crisis, Mind, Freepost (WD 2336), London. E15 4BR or email The deadline for submitting evidence is 17 November 2010.