What is the Mental Health (Care and Treatment) (Scotland) Act 2003?


The Mental Health (Care and Treatment) (Scotland) Act 2003, which came into effect on 05 October 2005, is an Act of the Scottish Parliament which enables medical professionals to detain and treat people against their will on grounds of mental disorder, with the Mental Health Tribunal for Scotland and the Mental Welfare Commission for Scotland providing safeguards against mistreatment.

An Act of the Scottish Parliament to restate and amend the law relating to mentally disordered persons; and for connected purposes.

It largely replaces the Mental Health (Scotland) Act 1984.

Refer to Chronology of UK Mental Health Legislation and the Mental Health (Public Safety and Appeals) (Scotland) Act 1999.

Detention Certificates

The act provides for short-term detention certificates and emergency detention certificates.

Short-term certificates are referred to by the act as the ‘preferred gateway’ to detention, and lead, notionally, to up to 28 days’ detention during which treatment may be administered against the will of the detainee, and can also lead to compulsory treatment orders, which have longer term implications for the detainee’s liberty.

Detainees can apply to the Mental Health Tribunal for revocation of short-term certificates.

Emergency certificates lead, notionally, to up to 72 hours’ detention, and can also lead to detentions under short-term certificates.

Emergency certificates do not enable treatment against the will of detainees, except for urgent treatment, and there is no formal process of appeal against them.

Unless a certificate is completed for someone who is already in a mental health hospital, both forms of detention are preceded by detention of up to 72 hours in what are called ‘places of safety’, while transport to hospital is arranged.

Also, short-term detentions may be extended for periods of up to three ‘working days’, to facilitate applications to the Mental Health Tribunal for compulsory treatment orders.

Saturdays, Sundays and Scottish bank holidays are not counted as working days.


The law is based on a set of principles. These principles should be taken into account by anyone involved in a person’s care and treatment.

Past and Present Wishes

Patients should be given the information and support they need to take part in decisions about their care and treatment. To help service users get their views across, the Act puts in place the right to access independent advocacy services. It also puts in place advance statements as a way to help service users say what care and treatment they would and would not want to have. The Mental Health Commission in Scotland examines cases where a person’s advance statement has been overridden.

The Views of any Carer, Guardian or Welfare Attorney

Carers should be involved in decision-making and should be given information they need to help them in their role. We will be developing guidance this year to help service providers and carers with the problem of patient confidentiality and sharing information.


A patient’s care plan should reflect their needs as an individual. A Mental Health Tribunal reviews care that looks for a compulsory treatment order that lasts longer than 2 years or the service users can request this if they wish to appeal a compulsory treatment order after 3 months.

The Care and Treatment that will be of Most Benefit

This should be reflected in a care plan. In addition the Act puts in place safeguards when consent to treatment has not been given.

On many occasions a patient’s care and treatment becomes much to the opinion of any one person, with a psychiatric disorder (mentalis confusio), latest labels that of chemical imbalance or chemical disorder, perplex and confuse not only the patient, but those whom may be designated decision makers on a patient’s behalf. Family members all too often are not given any information, nor the correct questions to ask.

All too often the system fails to accept a lack of science behind these labels. “where is that chemical test for this chemical imbalance?” Truth is that like the word illness: no such disease exists, nor any chemical as where is this chemical test; well paid professionals or populus of institutions together, with no clear facts and no willingness to discuss any way except that of psychiatry & adding of substance of those many same category as Class substances.

Individual Abilities and Background

Important things about a person such as their age, gender, sexual orientation, religion, racial origin or membership of any ethnic group should be taken into account by people providing care and treatment.

People providing care should also make sure that:

  1. Any restrictions on a person’s freedom are the least necessary.
  2. The person being treated under the act shouldn’t be treated any less favourably than anyone else being treated for a mental illness, or other mental disorder.
  3. Carer’s needs are taken into account.
  4. The person being treated is getting services that are right for them.
  5. When a person is no longer receiving compulsory treatment, he or she should still continue to get care and treatment if it is needed.
  6. If the person being treated is under 18, his or her welfare is of the highest priority.

What is Therapeutic Jursiprudence?


Therapeutic jurisprudence (TJ) studies law as a social force (or agent) which inevitably gives rise to unintended consequences, which may be either beneficial (therapeutic) or harmful (anti-therapeutic).

These consequences flow from the operation of legal rules or legal procedures – or from the behaviour of legal actors (such as lawyers and judges). TJ researchers and practitioners typically make use of social science methods and data to study the extent to which a legal rule or practice affects the psychological well-being of the people it affects, and then explore ways in which anti-therapeutic consequences can be reduced, and therapeutic consequences enhanced, without breaching due process requirements.

Refer to Mental Health Tribunal and Mental Health Court.

Early Development

The term was first used by Professor David Wexler, of the University of Arizona Rogers College of Law and University of Puerto Rico School of Law, in a paper delivered to the National Institute of Mental Health in 1987. Constance Backhouse, a leading legal historian from Canada, has published a biography of Wexler and his work. Along with Professor Bruce Winick of the University of Miami School of Law, who developed the area with Wexler, these law professors suggested the need for a new perspective, TJ, to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process. In the early 1990s, legal scholars began to use the term when discussing mental health law, including Wexler in his 1990 book Therapeutic Jurisprudence: The Law as a Therapeutic Agent, and Wexler and Winick in their 1991 book, Essays in Therapeutic Jurisprudence. The TJ Approach soon spread beyond mental health law to include TJ work in criminal law, family and juvenile law, health law, tort law, contracts and commercial law, trusts and estates law, disability law, constitutional law, evidence law, and legal profession. In short, TJ became a mental health approach to law generally.

The approach was soon applied to the way various legal actors – judges, lawyers, police officers, and psychologists and criminal justice professionals – play their roles, suggesting ways of doing so that would diminish unintended antitherapeutic consequences and increase the psychological well-being of those who come into contact with these legal figures. In 1999 in a Notre Dame Law Review article TJ was applied to drug treatment courts (DTC) for the first time and the authors asserted that DTCs were TJ in action and that TJ provided the jurisprudential underpinnings of DTCs. TJ has emerged as the theoretical foundation for the increasing number of “problem-solving courts” that have transformed the role of the judiciary. These include, in addition to DTCs, domestic violence courts, mental health courts, re-entry courts, teen courts, and community courts.

Some countries embraced the TJ movement more than others: particularly the United States where it originated, as well as Canada, Australia and New Zealand, with England slower until recently, while nevertheless developing some problem-solving courts. More recently, TJ concepts have entered into the systems of various other countries, such as Israel, Pakistan, India, and Japan.

Now, the field is fully international and robust, as evidenced by the recent launch of the International Society for Therapeutic Jurisprudence, a society with a comprehensive and authoritative website.

Reframing Roles

Therapeutic Jurisprudence also has been applied in an effort to reframe the role of the lawyer. It envisions lawyers practicing with an ethic of care and heightened interpersonal skills, who value the psychological well being of their clients as well as their legal rights and interests, and to actively seek to prevent legal problems through creative drafting and problem-solving approaches. TJ also has begun to transform legal education, in particular clinical legal education.


Traditionally, TJ was closely associated with problem-solving courts, such as drug treatment courts, because such courts were designed to invite the use of TJ practices (such as procedural justice, judge-client personal interaction, demonstration of empathy, active listening, and the like). Many desire the expansion of problem-solving courts, but for a number of reasons, especially economic ones, expansion on a large scale seems unlikely; in fact, in some jurisdictions, economic factors have even led to the elimination of such courts. For these and other reasons, a current interest on the part of many TJ scholars and proponents is to “mainstream” TJ – that is, to try to apply TJ practices and principles in “ordinary” courts, especially in criminal, juvenile, and perhaps family matters.

In order to mainstream TJ, a first analytical step is to see to what extent existing provisions of current codes are “friendly” to TJ – that is, whether their legal structure is sufficient to permit the introduction of TJ practices. If so, educational programs should be instituted to discuss how the law may be implemented in a more therapeutic manner. If not, a discussion would be necessary about the desirability and feasibility of legal reform. The analytical methodology in use here employs the metaphor of “wine” and “bottles”, where the TJ practices and techniques are the wine and the governing legal structures are the bottles. The mainstreaming project is facilitated by a Blog entitled Therapeutic Jurisprudence in the Mainstream.

Related Concepts

TJ has been described as a subset of legal psychology, meaning the scientific study of mind and behaviour as it affects or is affected by the law. As well, the term psychological jurisprudence has been used to describe study of the law as it is affected by and affects mind and behaviour. Another related concept is restorative justice. The fields of forensic psychology and forensic psychiatry also operate at the juncture of law and the mind.

The idea that the law can have a therapeutic role should not be confused with any idea that psychological therapies should be attempted to be used for legal ends (such as coercion) rather than clinically for clinical reasons. TJ theorists have also warned against the legal system uncritically accepting psychological experts and theories, and to not allow legal issues to masquerade as clinical ones if they are not.

Coming from the opposite direction, a related approach now dubbed ‘jurisprudent psychology’ (originally therapy) looks at whether psychological interventions are conducted fairly and consistently with legal concepts of justice.

TJ is also linked to the positive criminology perspective, which is a conceptual approach to criminology that places an emphasis on social inclusion and on forces at individual, group, social and spiritual levels that are associated with the limiting of crime.

What is a Mental Health Court?


Mental health courts link offenders who would ordinarily be prison-bound to long-term community-based treatment.

They rely on mental health assessments, individualised treatment plans, and ongoing judicial monitoring to address both the mental health needs of offenders and public safety concerns of communities. Like other problem-solving courts such as drug courts, domestic violence courts, and community courts, mental health courts seek to address the underlying problems that contribute to criminal behaviour.

Mental health courts share characteristics with crisis intervention teams, jail diversion programmes, specialised probation and parole caseloads, and a host of other collaborative initiatives intended to address the significant overrepresentation of people with mental illness in the criminal justice system.

Refer to Mental Health Tribunal and Therapeutic Jurisprudence.

Brief History

In the United States in the early 1980s, Judge Evan Dee Goodman helped establish a court exclusively to deal with mental health matters at Wishard Memorial Hospital. The mentally ill were frequently arrested and had charges pending when the treatment providers sought a civil commitment to send their patient for long-term psychiatric treatment. Judge Goodman’s court at Wishard Hospital could serve both purposes. The probate part of the mental health court would handle the civil commitment. The criminal docket of the mental health court could handled the arrest charges. The criminal charges could be put on diversion, or hold, allowing the patient’s release from jail custody. The civil commitment would then become effective and the patient could be sent to a state hospital for treatment. Judge Goodman would schedule periodic hearings to learn of the patient’s progress. If warranted, the criminal charges were dismissed, but the patient still had obligations to the civil commitment.

In addition to arranging inpatient treatment, Judge Goodman often put defendants on diversion, or on an outpatient commitment, and ordered them into outpatient treatment. Judge Goodman would have periodic hearings to determine the patient’s compliance with the treatment plan. Patients who did not follow the treatment plan faced sanctions, a modification of the plan, or if they were on diversion their original charge could be set for trial.

Judge Goodman’s concept and the original mental health court were dissolved in the early 1990s. In 1995, Judge Goodman was reprimanded for nepotism.

In the mid-1990s, many of the professional mental health workers who had worked with Judge Goodman sought to re-establish a mental health court in Indianapolis. Representatives of the county’s mental health service providers and other stake holders began meeting weekly. The group decided to accept the name of the PAIR Programme (PAIR stood for Psychiatric Assertive Identification and Referral). After, a couple years of lobbying the local authorities in Marion County, Indiana, the mental health court began as a formal program in 1996. Many consider this to be the nation’s first mental health court in this second wave of mental health court initiatives. Since the PAIR Programme did not operate with any new funds, there was not much scholarly research and therefore the accomplishments of Judge Goodman and the PAIR Programme are frequently overlooked. The current PAIR Programme is a comprehensive pretrial, post-booking diversion system for mentally ill offenders. A programme launched in Broward County, Florida was the first court, to be recognised and published as a specialised mental health court. Overseen by Judge Ginger Lerner-Wren, the Broward County Mental Health Court was launched in 1997, partially in response to a series of suicides of people with mental illness in the county jail. The Broward court and three other early mental health courts, Anchorage, AK, San Bernardino, CA, and King County, WA, were examined in a 2000 Bureau of Justice Assistance monograph, which was the first major study of this emerging judicial strategy.

Shortly after the establishment of the Broward County Mental Health Court, other mental health courts began to open in jurisdictions around the US, launched by practitioners who believed that standard punishments were ineffective when applied to the mentally ill. In Alaska, for example, the state’s first mental health court (established in Anchorage in 1998) was spearheaded by Judge Stephanie Rhoades, who felt probation alone was inadequate. “I started seeing a lot of people in criminal misdemeanours who were cycling through the system and who simply did not understand their probation conditions or what they were doing in jail. I saw police arresting people in order to get them help. I felt there had to be a better solution,” she explained in an interview. Mental health courts were also inspired by the movement to develop other problem-solving courts, such as drug courts, domestic violence courts, community courts and parole re-entry courts. The overarching motivation behind the development of these courts was rising caseloads and increasing frustration – both among the public and among system players – with the standard approach to case processing and case outcomes in state courts. In February 2001, the first juvenile mental health court opened in Santa Clara, California.

Since 2000, the number of mental health courts has expanded rapidly. There are an estimated 150 courts in the US and dozens more are being planned. An ongoing survey conducted by several organisations identified more than 120 mental health courts across the country as of 2006. The proliferation of courts was spurred in large part by the federal Mental Health Courts Programme administered by the Bureau of Justice Assistance, which provided funding to 37 courts in 2002 and 2003.

In England, UK, two pilot mental health courts was launched in 2009 in response to a review of people with mental health problems in the criminal justice system. They were considered a success which met needs that would have otherwise gone unmet; however they required financial support and wider changes to the system, and it is not clear whether they will be more broadly implemented.


Mental health courts vary from jurisdiction to jurisdiction, but most share a number of characteristics. The Council of State Governments Justice Centre has defined the “essential elements” of mental health courts. The CSG Justice Centre, in a publication detailing the essential elements, notes that the majority of mental health courts share the following characteristics:

  • A specialised court docket, which employs a problem-solving approach to court processing in lieu of more traditional court procedures for certain defendants with mental illness.
  • Judicially supervised, community-based treatment plans for each defendant participating in the court, which a team of court staff and mental health professionals design and implement.
  • Regular status hearings at which treatment plans and other conditions are periodically reviewed for appropriateness, incentives are offered to reward adherence to court conditions, and sanctions are imposed on participants who do not adhere to the conditions of participation.
  • Criteria defining a participant’s completion of (sometimes called graduation from) the programme.

Court Process

Potential participants in a mental health court are usually screened early on in the criminal process, either at the jail or by court staff such as pretrial services officers or social workers in the public defender’s office. Most courts have criteria related to what kind of charges, criminal histories, and diagnoses will be accepted. For example, a court may accept only defendants charged with misdemeanours, who have no history of violent crimes, and who have an Axis I diagnoses as defined by the DSM-IV.

Defendants who fit the criteria based on the initial screening are usually given a more comprehensive assessment to determine their interest in participating and their community treatment needs. Defendants who agree to participate receive a treatment plan and other community supervision conditions. For those who adhere to their treatment plan for the agreed upon time, usually between six months and two years, their cases are either dismissed or the sentence is greatly reduced. If the defendant does not comply with the conditions of the court, or decides to leave the program, their case returns to the original criminal calendar where the prosecution proceeds as normal. As a rule, most mental health courts use a variety of intermediate sanctions in response to noncompliance before ending a defendant’s participation. An essential component of mental health court programs for protection of the public is a dynamic risk management process that involves court supervised case management with interactive court review and assessment.

As in other problem-solving courts, the judge in a mental health court plays a larger role than a judge in a conventional court. Problem-solving courts rely upon the active use of judicial authority to solve problems and to change the behaviour of litigants. For instance, in a problem-solving court, the same judge presides at every hearing. The rationale behind this is not only to ensure that the presiding judge is trained in pertinent concepts, such as mental illness, drug addiction, or domestic violence, but also to foster an ongoing relationship between the judge and participants. Although the judge has final say over a case, mental health courts also take a team approach in which the defence counsel, prosecutor, case managers, treatment professionals, and community supervision personnel (for example, probation) work collaboratively to, for example, craft systems of sanctions and rewards for offenders in drug treatment. Many mental health courts also employ a full-time coordinator who manages the docket and facilitates communication between the different team members.


Some have criticised mental health courts for deepening, as opposed to lessening, the involvement of people with mental illness in the criminal justice system. They argued that this was particularly true in mental health courts that focus on misdemeanour offenders who would have received short jail sentences or probation if not for the mental health court. These critics urged mental health courts to accept defendants charged with felonies, which many of the more recent courts, such as the Brooklyn Mental Health Court, have started to do.

Critics have also raised concerns about the use of mental health courts to coerce people into treatment, the requirement in some courts that defendants enter a guilty plea prior to entering the court, and about infringement on the privacy of treatment information. Furthermore, many have noted that the rise of mental health courts is, in large part, the result of an underfunded and ineffective community mental health system, and without attention to the deficiencies in community treatment resources, mental health courts can only have a limited impact. Finally, it has been noted that when scarce mental health services are redirected to those who have come in contact with the criminal justice system, it creates a perversion in the system were a person’s best bet for obtaining services is to get arrested.


Several studies of the Broward County court were released in 2002 and 2003 and found that participation in the court led to a greater connection to services. A 2004 study of the Santa Barbara County, California, Mental Health Court found that participants had reduced criminal activity during their participation. An evaluation of the Brooklyn Mental Health Court documented improvements in several outcome measures, including substance abuse, psychiatric hospitalisations, homelessness and recidivism. In a 2011 meta-analysis of literature on the effectiveness of mental health courts in the United States, it was found that mental health courts reduced recidivism by an overall effect size of -0.54. In 2012, an Urban Institute evaluation found that participants in two New York City mental health courts were significantly less likely to re-offend than similar offenders whose cases are handled in the traditional court system. A review published in 2019 concerned with drug-using offenders with co-occurring mental health problems found that mental health courts may help people reduce future drug use and criminal activity.

What is a Mental Health Tribunal?


A mental health tribunal is a specialist tribunal (hearing) empowered by law to adjudicate disputes about mental health treatment, primarily by conducting independent reviews of patients diagnosed with mental disorders who are detained in psychiatric hospitals, or under outpatient commitment, and who may be subject to involuntary treatment.

The usual composition of the panel varies by jurisdiction but may consist of a legal member, a medical member and a community/specialist member. The legal member may be a senior lawyer or judge (often senior counsel) and acts as the chair; the medical member may be a senior (e.g. consultant) psychiatrist and has often held clinical responsibility for detained patients before; and the community/specialist/’non-legal’ member is neither a lawyer or medical doctor but has relevant qualifications (often at postgraduate level) and/or specialist experience in mental health, either as a mental health professional or a specialist layperson.

Attendees may include the patient, a patient advocate, legal representatives (lawyers), any family (especially next of kin), and mental health professionals involved in the person’s care (typically including the clinician with primary responsibility for the patient) or brought in for an independent view. The hearings may be held privately or may be open to the public, depending on the jurisdiction and individual circumstances.

Many Western developed nations use a tribunal model (they may be termed review boards) for mental health. There is usually provision to appeal decisions to a court (judicial review). By contrast some countries use an entirely judicial (courts) model, while some have no oversight or review body at all.

Refer to Mental Health Court and Therapeutic Jurisprudence.

International Legal Context

The World Health Organisation (WHO) observes that most countries around the world use some type of ‘independent authority such as a review body, tribunal or a court to confirm involuntary admission based on medical/psychiatric/professional expertise.’ Such authorities generally also adjudicate findings of incapacity to consent to or refuse medical treatment, and the issuing of community treatment orders (outpatient commitment) in countries that have them.

In countries that use the courts, although they have the advantage of unambiguous legal status, the court process can become a ‘rubber stamp’ exercise where judges make decisions in the absence of patients, representatives or witnesses, and endorse medical recommendations without independent analysis. Independent tribunals of specially selected members with expertise in the area are said to be more competent bodies if operated properly.

Many countries require that every person recommended for detention or involuntary treatment be reviewed in a legal hearing, with legal representation provided. Some countries with fewer resources may initially only require a paper review in straightforward cases, or may not review very short detentions (e.g. less than 72 hours). However, the WHO states that there must always be a right of appeal in a timely manner as well as “ongoing, automatic, mandatory and regular reviews of status.” The hearing authority should not be influenced by any external instruction at all. A balance is required between avoiding delays in necessary admission/treatment, reviewing as soon as possible, preventing harm, and recognising rights to mental health care as well as to refuse treatment.

International legal agreements which can have a bearing on mental health tribunals include the Convention on the Rights of Persons with Disabilities (Article 13 Access to justice), the Universal Declaration of Human Rights or regional human rights conventions such as Article 5(4) (liberty and security of person) and Article 6 of the European Convention on Human Rights (right to a fair trial). However, tribunals are not necessarily legally enabled to deal with humans rights claims. In particular, claims for rights to mental health care and support still generally remain outside their remit, though they can sometimes make non-binding recommendations regarding care plans or supervisory arrangements.

The Principles for the Protection of Persons with Mental Illness (‘MI Principles’), adopted by the United Nations General Assembly in 1991, has some basic standards concerning the need for a legal hearing for patients who are detained or treated against their will or whose capacity to make decisions is questioned. Principle 17 (Review body) includes 7 points. Point 1 states: “The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account.” The final point states: “A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility.”

By Country

England & Wales

The Mental Health Tribunal in England is now technically known as the First-tier Tribunal (Mental Health) but in practice is often called the Mental Health Tribunal. The First-tier Tribunal, created by the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) in 2008, is subdivided into chambers: Mental Health Tribunals come within the Health, Education and Social Care Chamber.

The Mental Health Review Tribunal for Wales was created by the Mental Health Act 1983 and has separate, but similar, procedural rules.

A new Upper Tribunal was also created by the TCEA 2007. It hears appeals (and sometimes judicial reviews) relating to decisions of the First-tier Tribunal and MHRT for Wales. Appeals from the Upper Tribunal are heard by the Court of Appeal.

A tribunal panel has three members: the legal, medical and specialist lay member. Some patients held in the mental health system after facing criminal charges are termed ‘restricted’ patients and are subject to additional controls via the Secretary of State for Justice’s Mental Health Casework Section, but are still reviewed by the Mental Health Tribunal (often led by a Circuit Judge). Three patients in the early 2010s were allowed to have their hearings in public, with the media in attendance.


The Mental Health Tribunal for Scotland was created on 05 October 2005 by virtue of section 21 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

Northern Ireland

The Mental Health Review Tribunal for Northern Ireland was set up under the Mental Health (Northern Ireland) Order 1986.


Mental Health Tribunals in Ireland are administered by the Mental Health Tribunals Division of the Mental Health Commission. The related law is the Mental Health Act 2001. The Tribunal panel consists of a psychiatrist, a lawyer (either a solicitor or a barrister) and a lay member.

Other European Countries

In many other jurisdictions, where mental health reviews are stipulated they tend to be carried out by a judge rather than by specialist tribunals. Turkey does not yet have a single coherent mental health law and there is no established system of review or appeal of detentions.


As it has a federal system of government, the tribunals vary by state in Australia. Examples include the Mental Health Review Tribunal of New South Wales and the Mental Health Review Tribunal (NT) (Northern Territories).

New Zealand

In New Zealand there is a right to apply for a review in a family court prior to applying for a Mental Health Review Tribunal. Rarely a hearing at the High Court is possible. The related legislation is the Mental Health (Compulsory Assessment & Treatment) Act 1992 (and Amendment Act 1999 of the same name).


As Canada has a federal system of government, Mental Health Review Boards are specific to each province or territory in Canada. For example, British Columbia’s operates under its Mental Health Act. Ontario has instead a Consent and Capacity Board which operates under the Mental Health Act as well as the Health Care Consent Act, the Substitute Decisions Act and other legislation. The tribunals are also subject to the constitutional rights of Section 7 of the Canadian Charter of Rights and Freedoms. Appeals may rarely reach the Supreme Court of Canada. In addition, each province and territory has a separate Review Board (Criminal Code), established under the Criminal Code, which adjudicates mentally disordered offenders found unfit to stand trial or not criminally responsible by reason of mental disorder.

Republic of South Africa

South Africa has Mental Health Review Boards in each province, as mandated by the country’s Mental Health Care Act 2002. Although the Act has been noted for improving aspects of the mental health system, the review boards “contend with limited resources, administrative challenges and limited political support.”


Japan has regional Psychiatric Review Boards, but their independence is questioned. The members are appointed by the governor of each region, who is the same person who orders involuntary detentions. Half or over half of each panel is made up of psychiatrists, who are often owners of the hospitals, and only one legal member. Furthermore, there is no right of appeal to a higher judicial court or to legal representation.

United States

The United States uses a purely judicial model, rather than mental health tribunals (‘mental health boards’ in the US are regional government groups that monitor or advise on policy etc.). Civil commitment hearings are generally held before a judge, and operate under the laws of that state.


India has traditionally had no oversight body, even since the 1987 Mental Health Act. However a Draft Mental Health Care Bill (2012) looks to set up a national Mental Health Review Commission and state Mental Health Review Boards.


Mental health in China has traditionally had no oversight body or national mental health law. The new Mental Health Care Act 2012 creates some rights for detained patients to request a second opinion from another state psychiatrist and then an independent psychiatrist; however there is no right to a legal hearing and no guarantee of legal representation.

What is the Mental Health Tribunal for Scotland?


The Mental Health Tribunal for Scotland is a tribunal of the Scottish Government to hear applications for, and appeals against, Compulsory Treatment Order, and appeals against Short Term Detention Certificates made under the Mental Health (Care and Treatment) (Scotland) Act 2003, and other matters in relation to that Act, for example, appeals against Compulsion and Restriction Orders.

Refer to Chronology of UK Mental Health Legislation and Mental Health Review Tribunal (England and Wales).


The Mental Health Tribunal for Scotland was established on 05 October 2005, under the Mental Health (Care and Treatment) (Scotland) Act 2003.

Its headquarters are located in Hamilton, although it has staff who work throughout Scotland.

The Tribunal discharges its functions through panels of three members: a legal member (who acts as Convener), a medical member and a general member. The judicial arm of the Tribunal is supported in its functions by the staff of the Scottish Courts and Tribunals Service (SCTS).

The primary role of the Tribunal is to consider and determine applications for compulsory treatment orders (CTOs) under the 2003 Act and to operate in an appellate role to consider appeals against compulsory measures made under the 2003 Act. The Tribunal also plays a monitoring role by periodic review of compulsory measures.

You can find out more about the Tribunal here.

What is the Mental Health Review Tribunal (England and Wales)?


In England, the First-tier Tribunal (Mental Health), more commonly known as the Mental Health Tribunal, is an independent quasi-judicial body established to safeguard the rights of persons subject to the Mental Health Act 1983. It provides for consideration of appeals against the medical detention or forced treatment of a person who was deemed to be suffering from a mental disorder that was associated with a risk to the health or safety of that person or others.

Prior to an overhaul of the tribunal system in 2008, its functions were carried out by the Mental Health Review Tribunal, which was a standalone body. In 2008 the Mental Health Review Tribunal was formally abolished as a standalone body and merged with the Health and Social Care Chamber of the newly established First-tier Tribunal (FTT). A new Upper Tribunal was also created, which hears appeals against decisions by the FTT. In Wales, the corresponding body is the Mental Health Review Tribunal for Wales.

Refer to Chronology of UK Mental Health Legislation and Mental Health Tribunal for Scotland.

Tribunal Hearings

Mental Health Tribunals are independent quasi-judicial bodies that operate under the provisions of the Mental Health Act 1983 and the Mental Health Review Tribunal Rules 1983. A Tribunal’s main purpose is to review the case of a patient detained under the Mental Health Act and to direct the discharge of any patient for whom the statutory criteria for discharge have been satisfied. In some cases, the Tribunal also has the discretion to discharge a patient who does not meet the statutory criteria. Such cases usually involve making a balanced judgement on a number of serious issues such as the freedom of the individual, the protection of the public and the best interests of the patient.

Tribunal Panel Members

The Lord Chancellor makes appointments to the panels of members for each region. In the case of medical and specialist members, the Secretary of State for Health (for cases in England) or the Secretary of State for Wales is also consulted. The Regional Chairperson’s appoint the members who are to sit at a particular hearing and there must be a legal member, a medical member and a specialist member appointed for each Tribunal hearing to form a legal quorum. In the event that one or two members are not present, the third member can technically open the tribunal and then immediately adjourn the hearing until another two members are able to attend. Any decisions formed by the tribunal are that of the tribunal, rather than the particular judicial member. There will be no dissenting judgement.

Role of the Legal Member (Legal Judge)

The legal member’s role is to preside (i.e. take the chair) at all tribunal hearings. They are known as the president and will sign all decisions, documents, recommendations and judgments as the president, on behalf of the whole tribunal. Their responsibilities also include making sure that the proceedings are conducted fairly, that the legal requirements of the Mental Health Act 1983 are properly observed within the rule of law and advise on any questions of law which may arise. They are also responsible, in consultation with other judges of the Tribunal, for drafting the reasons for the decision, and for signing the record of the decision. The legal members are required to have “such legal experience, as the Lord Chancellor considers suitable”. They are normally senior legal practitioners such as solicitors or barristers, but in ‘restricted patient panel’ (RPP) cases (also known as forensic cases) the level must be that of a Circuit Judge or higher. A small number of Recorders, who are also Queen’s Counsel might sit as RPP members.

Role of the Specialist Member (Specialist Judge)

The specialist member undertakes a check and balance role to the Tribunal under the Tribunal Rules. They will be a professional outside the legal and medical profession, but might hold legal or healthcare qualifications. Most specialist judges are senior or experienced practitioners or therapists with at least 5-7 years standing and will hold a range of experience within the mental health sector. Most specialist members are educated to postgraduate level in mental health, they may hold an advanced degree in psychology or forensics in RPP cases. The specialist judge will have extensive background knowledge of professional practice within the mental health field, health and/or social services. Members can be drawn from the NHS, voluntary organisations, adult social services or the private health sector. Specialist judges may also be mental health social workers, probation officers, approved mental health professionals, psychologists, mental health nurses and occupational therapists. They will be able to offer information to the other judges of the Tribunal on matters relating to health and social care matters and often healthcare legal matters in context (i.e. Codes of Practice, best practice etc.). Generally, specialist judges are appointed in office for a term of 5 years and this is reviewed every 5 years until the age of 70, which is the statutory retirement age for all judges.

Role of the Medical Member (Medical Judge)

The medical member has a dual role to perform. They are required by the Tribunal Rules to carry out an examination of the patient before the hearing and to take any steps that they consider necessary to form an opinion of the patient’s mental condition. In England, the pre-medical examination is not a requirement to hear a case. At the hearing they, together with the other judges, have the judicial responsibility of deciding whether or not the patient should continue to be detained or remain on a community treatment order. If the medical member’s opinion of the patient differs significantly from other medical witnesses then this should be made known at the beginning of the hearing. This is because it would be unfair and contrary to a basic principle of natural justice if the Tribunal members were to take notice of information that had not been shared with all the other parties at the hearing. The medical member is invariably a consultant psychiatrist of several years’ standing. He or she will be able to advise the other members of the Tribunal on any medical matters. Medical members are generally senior doctors, with at least 7 years experience and are often drawn in from Consultant level. Generally, medical judges are appointed in office for a term of 5 years and this is reviewed every 5 years until the age of 70, which is the statutory retirement age for all judges.

Course of the Tribunal

Tribunals normally sit in private and take place in the hospital or community unit where the patient is detained. Physical location aside, the tribunals resemble court hearings, during which appropriate witnesses are invited to speak in turn. These include the detained person, their solicitor, the member of the multi-disciplinary team responsible for the detained person’s care in hospital, known as the Responsible Clinician (RC, usually a consultant psychiatrist), a representative of the nursing staff at the hospital and the Approved Mental Health Professional (AMHP). Additionally, the RC and AMHP (or more frequently the patient’s care coordinator) are required to submit written reports on the person’s state of health to the Tribunal in advance of the hearing. Sometimes the primary inpatient nurse for the patient may also submit a written report.

How the Decision is Made

Each member of the Tribunal is entitled to an equal voice on questions of law, procedure and substance. All the members participate in the making of decisions and, although the legal member is expected to draft and sign the written record, this is done only after taking into account the contributions of the other members. If the members do not all agree then a decision of the majority of members of the Tribunal is taken as the decision of the Tribunal.

The Tribunal will consider the case and the patient as presented on the day. The Tribunal cannot question the circumstances that gave rise to the detention. The Tribunal decides whether or not to end the patient’s detention in hospital. The Tribunal has the power to order a deferred discharge which may be conditional (for example that an aftercare package is put in place).

Decisions of the Tribunal can be appealed to the Administrative Appeals Chamber of the Upper Tribunal, or to the High Court, by way of Judicial Review.

Organisation and Oversight

The Bodies

Technically the Mental Health Review Tribunal consists of two distinct bodies, within a single non-departmental public body.

  • The first body is the Judicial Tribunal itself with the responsibility for hearing applications or references concerning people detained under the Mental Health Act 1983.
    • The Tribunal members are appointed by the Ministry of Justice.
    • There is a Liaison Judge appointed to the Tribunal to lead its development.
  • The second body is the Mental Health Review Tribunal Secretariat.
    • This is staffed by members of the Department of Health, and has responsibility for the administration of the Tribunals.

Regional Chairperson

There is a Regional Chairperson appointed for each of the two Tribunal regions (the North Region and the South Region), based in London and Manchester. Regional Chairperson’s responsibilities include appointing members to particular hearings, ensuring that all the statutory requirements are complied with, making judicial decisions and giving such directions as are necessary to ensure the speedy and just determination of every case. Regional Chairperson’s are also responsible for organising training for members, for overseeing the members’ appraisal and mentoring scheme and for handling complaints about a member’s conduct.

Organisation of the Tribunal

The Secretary of State for Health is responsible for meeting the expenses of Tribunals in England and for providing accommodation and staff. Administration is carried out at the Secretariat offices in Leicester. The Welsh Assembly has similar responsibilities for Tribunals in Wales and administration is carried out at the Secretariat office in Cardiff. All the Secretariat staff are civil servants and are completely independent of the hospital authorities. The Regional Chairperson and the Secretariat work closely together to make sure that the whole Tribunal process is closely managed. The role of the Home Office is confined to cases involving ‘restricted patients’.

Tribunals operate independently of all Government Departments.

Fairness of Decisions

A study in 2017 by Jewell and Colleagues, looked at the correlation between a number of predictors and the outcome of the MHRT decisions: The study commented that their “findings imply that decisions at MHRT are not biased in terms of age, sex, ethnicity, mental health diagnosis, or even index offence”, rather its findings “suggest that by reducing levels of agitated behaviour, verbal aggression and physical violence on the ward, working towards being granted unescorted community leave, and specifically targeting items on the HCR-20 risk assessment” patients can increase their chance of discharge.


Jewell, A., Dean, K., Fahy, T. & Cullen, A.E. (2017) Predictors of Mental Health Review Tribunal (MHRT) outcome in a forensic inpatient population: a prospective cohort study. BMC Psychiatry. Springer Science and Business Media LLC. 17(1). doi:10.1186/s12888-016-1188-8.