Hot on the heels of the judgment in MH v UK
, which found that there are positive obligations to enable a person to exercise their right to bring proceedings to seek a review of the lawfulness of their detention where they would be unable to do so without assistance, a new study has examined how many patients who are detained under the Mental Health Act 1983 might fall into this category. The study is by Nuwan Galappathie, Rajendra Kumar Harsh, Mathew Thomas, Amina Begum and Danielle Kelly, and is published in The Psychiatrist
(paywall, sorry, but you can still read the abstract). The study looked at patients in a secure hospital, and the results may vary across other types of hospital, but it found that 78% of patients were aware of the Tribunal’s power to discharge (far fewer were aware of its powers to recommend leave or transfers). It found that patient’s who understood the Tribunal’s powers received more completed hearings per year, both overall and by patient’s application. This means that the mechanisms to make a referral to a Tribunal on behalf of a patient are not compensating for the patient’s inability to exercise that right himself.
Another finding was that very few patients understood that the Tribunal was independent. The authors’ hypothesised that lack of awareness of the Tribunal’s independent status may discourage detainees from making an application.
The authors recommended that hospital managers consider the capacity to patient’s to make an application to the Tribunal, and consider referring cases to the Secretary of State (for a Tribunal referral) every 12 months. The paper does not discuss the ruling in MH v UK (no doubt because it was written before the judgment came out), but clearly this advice would be strengthened by that ruling.