Abstract
There is continuing confusion over the precise effect and force of Mental Health Review Tribunal (‘MHRT’) decisions and the extent to which they may be lawfully overborne. That confusion has not been alleviated by the Court of Appeal judgment in the Von Brandenburg case, and it may even have been exacerbated by the case of H v Ashworth Hospital. Now that the latter decision has been considered by the Court of Appeal, and before the former decision comes before the House of Lords, this may be an opportune moment to place both cases in their true context and to attempt<br />to distil some definitive guidance on this troublesome point.
Highlights
There is continuing confusion over the precise effect and force of Mental Health Review Tribunal (‘MHRT’) decisions and the extent to which they may be lawfully overborne
Dyson LJ held that, even though the professionals believed that the patient would leave hospital if no aftercare was in place, the decision to re-section him was made upon grounds that had been rejected by the MHRT
The appeal in Von Brandenburg is likely to come before the House of Lords in early-2003
Summary
There is continuing confusion over the precise effect and force of Mental Health Review Tribunal (‘MHRT’) decisions and the extent to which they may be lawfully overborne. The clinical recommendations, which are provided in statutory Form 11,8 are focused upon the condition of the patient and the necessity for compulsion, and the medical practitioners who provide them must set out their own clinical opinions They are not required to state whether it is appropriate for a patient to be detained under MHA 1983, nor to consider any prior decision of a MHRT. It is difficult to see how a recent MHRT direction for discharge can directly impinge upon the doctor’s clinical opinion as to the fulfilment of each of these three criteria Whilst it must be founded upon the opinions of medical practitioners, an application for admission to hospital may be made only by an Approved Social Worker (‘ASW’) or the patient’s nearest relative.[9] The Act would appear to offer an unconstrained power in this regard, for it provides that:. “Nothing shall be construed as ... restricting the power of an approved social worker to make any application under this Act.”
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