Discharge from the Mental Health Act
This section looks at how your detention under sections 2, 3 and 37 of the Mental Health Act 1983 can end. Detention means that you are taken to hospital and treated against your will. This is also known as sectioning.
***** New emergency coronavirus legislation has been introduced. It means that there are some temporary changes to some of the information included below. You can read about the changes by clicking here. *****
- If you are under section 2, 3 or 37 you can:
- ask the hospital managers to discharge you,
- apply to a tribunal to appeal your section,
- get free representation from a mental health solicitor at a tribunal, and
- get help from an Independent Mental Health Advocate (IMHA).
- If you are under section 2 or 3, your nearest relative can discharge you. But your psychiatrist can prevent this if they think you are ‘dangerous’ to yourself or others.
- If you are on section 2 and you want to appeal, you have to apply to the tribunal within 14 days of being sectioned.
How can I be discharged?
You can be discharged by:
- your responsible clinician,
- your nearest relative,
- the hospital managers, or
- a tribunal.
You will also be discharged if the section you are under runs out and it is not renewed.
Your responsible clinician is usually your psychiatrist, but other professionals can sometimes be responsible clinicians. The staff at the hospital should tell you who your responsible clinician is.
Your ‘nearest relative’ is a legal term used in the Mental Health Act. It is not the same as the next of kin. You can find out more about nearest relatives in our ‘Nearest relative’ factsheet by clicking here.
When you are discharged from the Mental Health Act, this is not the same as being discharged from hospital. Even if you are not under section anymore, you might agree to stay in hospital as a voluntary patient (sometimes known as ‘an informal patient’).
Hospital manager reviews
What is a hospital managers’ review?
When you are detained under the Mental Health Act, you can ask the hospital managers to review your detention to see if they can discharge you. Ask the staff on the ward for an application form. You could try to get in touch with the ‘Mental Health Act administrator’, who can tell you about the process.
Who are the hospital managers?
The name “managers" can be confusing because it does not mean the people who run the hospital. The decision is actually made by 3 or more people called “associate managers” or “Mental Health Act managers”.
Who can ask for a hospital managers’ review?
You can apply for a hospital managers’ review at any time if you are under:
- section 2,
- section 3, or
- section 37.
You can ask for a review as many times as you like. But the hospital may have a policy that says how many times you can ask. They may say you cannot have a review if you had one recently or if you have a tribunal coming up.
Reports for hearing
To help the managers decide if they should discharge you, they get written reports before seeing you.
Medical, nursing and social care staff write reports. You have a right to see these reports. But sometimes you may not see all the information if it might harm your mental health to see it. They should give reasons if this happens.
What happens at a Mental Health Act managers’ review?
A Mental Health Act managers' review is normally held on the ward or in a separate room.
The following people will usually be there.
- The managers
- Your responsible clinician
- A nurse from the ward
- A social worker
Your nearest relative may be invited if you want them to be there. If you do not want your nearest relative there, they can share their views in the reports of the hospital team.
The managers will have read through the reports. After this they will give you a chance to speak. At the end of the hearing the hospital managers will decide if you should stay under your section. All of them have to agree for you to be discharged.
What if the hospital managers discharge me from section?
If they discharge you, you can leave the hospital. You can stay in hospital as a voluntary patient if the medical team agree to this.
How can I appeal to a tribunal?
The First Tier Tribunal is an independent panel that can discharge you from the Mental Health Act. The tribunal hearings take place at the hospital. The tribunal has to decide if you meet the criteria for being sectioned.
What can the tribunal do?
Tribunals have the power to:
- discharge you from your section,
- recommend that you get leave,
- recommend supervised community treatment instead of staying in hospital,
- decide on a delayed discharge or conditional discharge,
- transfer you to another hospital, or
- meet up again if their recommendations are not followed.
However, the hospital is not legally obliged to follow their recommendations.
Who can have a tribunal?
If you are detained under section 2, section 3 or section 37, you can apply to a tribunal to appeal against your section.
If you are detained under section 2, you have to appeal within 14 days from the start of your detention. The tribunal must take place within seven days of your application.
If you are detained under section 3, you can appeal to a tribunal once in the first six months of your detention. After that, you can apply once in each renewal period.
Your section 3 can be renewed after six months. After that, it can be renewed every 12 months. The hearing should take place within 8 weeks of your application.
If you are detained under section 37, you can only apply to a tribunal after the first six months of detention, and then once in each renewal period.
A section 37 can be renewed for six months and then 12 months after. As above, the hearing will usually take place around 8 weeks after you apply.
Delays to tribunals
If you have to wait longer for a tribunal hearing, you may be able to claim compensation under breach of the Human Rights Act. This says you have a right to a fair trial (Article 5 (4)).
How do I ask for a tribunal?
You apply using a T110 form. You can download the form from www.justice.gov.uk. The form may be available on your ward, ask staff about this. If you would find it difficult to fill in the form yourself, ask the staff or an advocate for help.
Who is involved in a tribunal?
A tribunal must each have a:
- legal member (usually a solicitor or a barrister),
- doctor (usually a psychiatrist),and
- lay member (a person who is not medically or legally trained) with some mental health experience.
You, the Responsible Clinician and social worker will be at the tribunal. The legal member will be in charge of the tribunal.
Your nearest relative or carer can go to the hearing if you want them to. You can have a solicitor if you want one. If you do not want to go to the hearing, then the tribunal will check that you have decided this yourself. If you have, then the tribunal may decide to have the hearing without you being there.
Evidence for the tribunal
The panel members get reports before the tribunal. These help them to decide if you should be discharged from the Mental Health Act or not. Reports usually include a medical report, a nursing report and a social circumstances report.
Before the tribunal, the medical member of the tribunal will meet you and look at your medical notes. But you do have a right to refuse this. Your solicitor may ask for you to see an independent psychiatrist, who will do a report. This gives the tribunal more information to make a decision.
You or your solicitor should be able to get copies of any reports that go to the panel members. Sometimes you will not see some if the information in the reports. This happens if the tribunal thinks that seeing the information would cause you harm.
What happens at a tribunal?
The tribunal is a legal hearing but should take place in an informal setting at the hospital.
At the hearing your Responsible Clinician and social worker may give evidence. The tribunal members might ask them questions. You may be able to ask them questions at certain times, your solicitor will tell you when. You can give evidence if you want to. The tribunal members might ask you questions.
You can ask for breaks at any time if you are finding the situation difficult. The tribunal members may not be able to agree to stop the hearing, but you can leave the room for a break. Your doctor or social worker may think that some of the information at the hearing might damage your health. If this is the case they can ask you to step out of the room for those parts of the hearing. The tribunal will decide whether to allow this or not.
Can my nearest relative discharge me?
Your nearest relative can discharge you if you are detained under section 2 or 3. They need to tell the hospital managers 72 hours before they want to do this. Your responsible clinician can stop them from discharging you if they think you may be a risk to yourself or others. If this happens and you are under section 3, your nearest relative can apply to the tribunal to discharge you. If you are under section 37 your nearest relative can apply to the tribunal.
You can find more information about ‘Nearest relatives’ by clicking here.
Can someone help me appeal to a tribunal?
If you appeal to the tribunal, you can get free legal representation through the Legal Aid scheme. This means you can get a solicitor to come to the tribunal with you.
You can get a list of mental health solicitors from the ward staff. If you don’t want this you can look on the law society website. They have a list of solicitors that you can search through. You can find this at www.solicitors.lawsociety.org.uk/
If you are under the Mental Health Act, you should be able to get help from Independent Mental Health Advocates. You may hear these shortened to IMHAs, pronounced “im-ha”. IMHAs can tell you about your rights under the Mental Health Act and get your voice heard. They could help you apply to the tribunal or find a solicitor. Staff on your hospital ward should be able to give you details of the advocacy service.
Reasons for discharge
If you do not meet the criteria to be under the Mental Health Act the tribunal must discharge you. The tribunal have to explain why they made that decision in writing. You should get a copy of their decision.
Sometimes you can challenge the decision of a tribunal. For example, you may feel the hospital didn’t give the tribunal important evidence. If this happens you could ask them to look at the decision again. This means that the tribunal could restart.
You could ask if you can appeal to the Upper Tribunal. This is where a judge looks at your case. You can only do this if you think the tribunal made a legal mistake. For example, if you think they got the law wrong. If the judge agrees there was a legal mistake the Upper Tribunal can look at the case again.
You need to challenge a tribunal decision within 28 days of getting the written decision. This is a complicated process, we recommend you get help from a specialist mental health solicitor to do this.
What if I am under a different section?
If you have a mental illness and are in the criminal justice system you may be under a different section of the Mental Health Act. These are known as “forensic sections”. You could be in the criminal justice system if you are arrested, going to criminal court or are in prison.
If you are under a forensic section, there are different rules about how you can be discharged.
You can find more information about:
You can find more information about:
- Mental Health Act by clicking here.
- Advocacy by clicking here.
- Section 117 aftercare by clicking here.
- Legal Advice by clicking here.
There is information about Tribunals available at the UK Department of Justice website - www.justice.gov.uk/tribunals.