Advocacy for Discharge from a Section or CTO Protocol (England & Wales)

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This protocol is a draft. It has not yet been accepted as protocol and may be incorrect or poorly cited. Please do not use this in your work until it has been accepted.

Please see #protocols on Slack to discuss this protocol further.

This is the protocol for advocating for someone to be discharged from detention or Community Treatment Order (CTO) under the Mental Health Act 1983 (MHA). This can be used both for people who are detained in hospital (‘sectioned’) and those who are discharged to CTOs.

This protocol is mostly written addressed to people who are acting as an advocate for someone else, but it can also be used if you are advocating for yourself.

This protocol only applies to people detained in England and Wales. Not all of it applies to all sections of the MHA - generally, the sections are specified. Other than s37 hospital orders where mentioned, this protocol does not apply to people who are detained under the so-called ‘criminal justice’ sections, as that process for discharge and release is different.

In this protocol, ‘detained’ is used to refer both to people who are sectioned and people who are under a CTO.

When to Advocate for a Discharge

If the person who is detained wishes to be discharged you should start planning this with them as soon as possible after they are admitted/placed under a CTO.

What to do Before Advocating for a Discharge

You should explain the options to the detained person, as well as the pros and cons of each one.

Together you should make thorough plans for:

  • What approach you are going to take
  • What you will need to do to prepare for this
  • What will happen
  • Anything that might be particularly difficult and how you will deal with this
  • What support the detained person can access during this period
  • What next steps you will try if the approach you take is not successful

You should explain that the way you present how they are doing and their support networks to psychiatrists might not be the way they actually operate in real life (eg. using language around coercion when the support the person has is fully non-coercive) and explain the reasoning behind this (coercion, control and hierarchy are what the institution of psychiatry is based on and what clinicians look for in order to authorise a discharge).

Additionally, you can use this opportunity to advocate for the person’s ‘care team’ to follow the guidance in the Care Programme Approach (CPA) (England) or the Care and Treatment Plan (CPA) (Wales) which sets out how different services should be brought together to support someone after hospital, and which is regularly ignored by psychiatrists. If someone is aiming to be discharged from sections 3, 37 or 45A you can also advocate for section 177 aftercare, which can provide access to funding and services that may be useful for the person.

Ways to be Discharged

Responsible Clinician

One way to be discharged from section or CTO is to arrange a meeting with the Responsible Clinician (RC) of the person who is detained. The RC is typically a psychiatrist or other senior clinician who is in charge of the person’s ‘care plan’.

If someone is under a CTO, their first CTO can last up to 6 months, after which it should be reviewed by their RC. There should also be a review 2 months before the CTO is planned to end. Following review each time it ends, the CTO can then be extended for a further 6 months and then for a year at a time. All of these reviews present an opportunity to meet with the person’s RC to argue for discharge and for the CTO to be revoked.

Many organisations recommend asking for a meeting with the person’s RC as the first approach to discharge. We would generally only recommend asking for a non-scheduled meeting if the RC has previously been sympathetic, has been actively planning discharge or has shown willingness to listen to arguments for discharge. Otherwise if the RC meeting is not successful you may jeopardise the person’s other options (such as increasing the likelihood that the RC will issue a barring report for a Nearest Relative discharge).

Legally, someone is supposed to be discharged when they no longer fit the criteria for their section or CTO. This means proving that they can ‘manage their mental health’ without hospital/without a CTO, and that they have the support network necessary for this.

You should ask the detained person to speak to their RC, either in-person or by email, to ask for a meeting to consider discharge.

In the meeting with the RC, you should stress that the detained person is not ‘a risk to themselves or others’. If you are an advocate, be calm and authoritative and as ‘professional’ as possible (eg. wearing smart clothes, wearing a lanyard and carrying a clipboard), even if this is not how you present day-to-day.

Psychiatry looks for the most ‘normative’ coping strategies and support systems. Therefore it is best to present things in this manner even if this is not the language or way of seeing things you actually operate using.

If someone has been sectioned/placed under a CTO because they are viewed to be a ‘risk to themselves’ from self-harm or suicidality, you should stress that they do not have intent or methods to harm themselves or attempt suicide. For example, for questions such as ‘Do you feel suicidal?’ you could encourage the detained person to give answers such as, ‘I have some intrusive thoughts to do with sucide but I do not have a plan to act on them and I use coping skills to deal with these thoughts safely’. It is helpful for people to think about things they can say they are looking forward to in the short-, medium- and long-term to show that they have ‘plans for the future’ and to have a plan for both coping mechanisms and support they can utilise in ‘crisis’ periods.

You should stress the support systems the person has. Psychiatrists most favour ‘traditional’ forms of support such as biological family, a long-term partner and/or institutional support. If you do advocacy through an organisation, you can frame this as institutional support for the person.

If the person has been sectioned/placed under a CTO because they are viewed to be a ‘risk to others’ (this is most often people who are pscyhiatrised as experiencing some kind of psychosis, or to a lesser extent cluster B personality disorders, and people who are racialised as Black and therefore viewed as dangerous by racist psychiatrists), you should stress the support that there is in the community that would prevent them from harming others. Psychiatrists can be more likely to agree if this is framed using language to do with security and coercion, even if this is the opposite of the supportive/caring relationships you have actually formed.

If the person has been sectioned/placed under a CTO because they are experiencing a restrictive eating disorder, using language around persuasion and coercion around support the person has around mealtimes can also be helpful.

Nearest Relative

If the detained person has a somewhat supportive spouse or family, the easiest way to be discharged from a section or CTO is using the nearest relative. ‘Nearest relative’ (NR) is a term defined under the MHA that gives a member of family for someone who is detained under sections 2, 3, 4 or 37, on a CTO or under a guardianship certain powers regarding the ‘care’ of the detained person.

The MHA contains a list of who can be an NR. A responsible clinician will go down this list in order until they find someone. Someone may be a nearest relative even if the detained person is estranged from them or has a bad relationship with them. The list is: Spouse or civil partner (including cohabitee for more than 6 months) Child Parent (an unmarried father must have parental responsibility) Sibling Grandparent Grandchild Uncle or aunt Nephew or niece

The MHA contains some other rules about nearest relatives: Must be aged 18 or over unless they are the mother, father, husband, wife or civil partner. Must live in the UK, Channel Islands or the Isle of Man unless the detained person usually lives abroad themselves.

As well as these rules for specific situations: Children subject to a care order: Local authority is NR, unless the person is aged 16-17 and has a husband, wife or civil partner. Permanently separated from partner: Partner cannot be NR. Two people from the same group: The older person is NR. Lived with a relative or are cared for by one of your relatives: That relative becomes NR (eg. If a grandchild is the carer but the person also has a mother, the grandchild is NR). Lived with someone who is not related for more than 5 years: They are added to the bottom of the list of relatives after niece and nephew. Half relatives (eg. half sibling) Can be NR, but ‘full blood’ relationships take priority. Adoptive relationships (eg. adoptive parent or child): Can be NR in the same positioning as a non adoptive relationship. Step-relationships (eg. step-parent): Cannot be your nearest relative.

If the person who is an NR does not want to be so and someone else agrees to, the NR should write to the hospital saying that they are transferring their powers to someone else. If someone who is detained wants to change their nearest relative themselves (called ‘displacement’) they can do this under section 29 of the MHA which sets out the grounds for changing. These are: NR cannot act because of health reasons. NR has ‘unreasonably objected’ to a section 3 or guardianship application. NR has tried to discharge you ‘without considering all of the circumstances’. NR is ‘unsuitable to act’. The detained person doesn’t have a nearest relative from the list. It is not practical to identify the NR. Displacement is a complicated legal process so you should get specialist legal advice if possible. We recommend the firm Bindmans who operate across England and Wales and have strong expertise in the MHA.

In order for someone to be discharged, the NR must fill out a letter and post it to the hospital managers. A template NR discharge letter can be found here. The hospital then has 72 hours to discharge the person unless a senior clinician issues a barring report. You should aim for the NR to get their letter in on Friday afternoon as the hospital managers will still have to respond on Monday but usually don’t work over the weekend so there is less time for them to do admin and therefore less time for things to get in the way of discharge.

This process is the same whether the person is detained under 2, 3, 4 or 37, or under a CTO.

Tribunal

If the NR approach is not possible or doesn’t work, the next option for discharge is usually the Mental Health Tribunal.

The Mental Health Tribunal (also known as the First Tier Tribunal, or FTT) is a panel of people who are not part of someone’s ‘treatment plan’ who can make decisions about discharge.

Tribunal hearings take place at the hospital (or, during the COVID-19 pandemic, via video call).

When someone can apply to the Tribunal depends what section they are detained under: S2: Person can apply within 14 days after sectioning and then the hearing should happen within 10 days in England or a week in Wales. S3: Person can apply any time within the first 6 months of sectioning. If the s3 is renewed, applications can then be made once in the second 6 months and then once every 12 months. The hearing should happen within 8 weeks of your application or sooner if the case is deemed to be urgent. NR can apply if a NR discharge was blocked due to a senior clinician issuing a barring report, within 28 days of the report being made. S7 guardianship: Person can apply once at any time within the first 6 months of sectioning. If the guardianship is renewed, can apply once in the next 6 months and then once every 12 months. Hearing should happen a few weeks after application. CTO: Person can apply once at any time in the first 6 months of the CTO. If the CTO is extended, can apply once in the next 6 months and then once every 12 months. Hearing should happen within a few weeks after application. NR can apply if a NR discharge was blocked due to a senior clinician issuing a barring report, within 28 days of the report being made. S37 hospital order: Person or NR can apply once in the second 6 month period and then once every 12 months. Hearing should happen within a few weeks after application.

To apply to the Mental Health Tribunal the person who is detained and you should download and fill out an application form and then post or email this to HM Courts and Tribunals Service (the address is on the form).

It does not cost anything to apply to the Mental Health Tribunal.

We strongly recommend seeking legal representation to represent the person who is detained at the tribunal. This makes it much more likely that the tribunal will be successful. Legal aid is always available for mental health solicitors to represent people at Mental Health Tribunals.

We recommend the firm Bindmans who operate across England and Wales and have strong expertise in the MHA.

IMHAs (Independent Mental Health Advocates) are sometimes allowed to speak at Tribunals but other advocates are generally not. If discharge is not successful, the Tribunal decision can be appealed.

Hospital Managers Review

After an appeal to the Mental Health Tribunal, the last option for discharge is a Hospital Managers Review.

Hospital Managers are an independent panel appointed to decide whether people should be discharged. They are essentially a group of administrators and usually have no or minimal legal, medical or mental health training.

Hospital managers legally must do a review if someone’s RC wants to renew their section or CTO, even if the detained person hasn’t challenged this decision. They almost always go along with what the RC suggests. Hospital managers should (but aren’t required to) hold a review if someone who is detained asks them to, if the RC has issued a barring report to an NR discharge or if someone’s section or CTO is coming to an end and their RC has not held a review.

There is no set system for asking for a Hospital Managers Review, and there is no maximum or time limit on how many times someone who is detained can ask for one. Hospital Managers Reviews are usually held in hospital, although can be held in other locations such as outpatient centres (and during the COVID-19 pandemic, are usually being held over telephone or video call).

At the meeting, the person who is detained should, with assistance of an advocate if they wish, explain fully why they should be discharged. Their RC and any other relevant clinicians will be asked to give their views.

When making a case to a Hospital Managers Review, use the same arguments you would use for advocating against sectioning or in a discharge meeting with a RC. It is also helpful to plan to talk about ways in which the detained person is ‘complying’ (eg. attending activity groups if in hospital, or keeping to the conditions of their CTO ‘without resistance’).

Hospital managers are legally supposed to make a decision that is the ‘least restrictive option that maximises [the detained person’s] independence’, based on their circumstances. Although this is generally not how they approach it in practice, it can be helpful to use and base your arguments around this phrasing.

If the Hospital Managers Review is not successful, the detained person can apply to them again whenever they wish. However, the Managers may hold a ‘paper review’ (where the detained person is not present) instead of a proper meeting if they believe that the person’s ‘circumstances have not changed’ since the last review or since a Tribunal, or if the person’s RC is extending their section or CTO and they haven’t or haven’t yet challenged this.

What to do after Advocating for Discharge

After doing this advocacy you must debrief with the detained person and your buddy, if you have one. You should talk about how the experience was and any next steps you are going to take.

If the discharge application was unsuccessful, you should make plans for trying again a different way if this is what the detained person wants. You must continue to regularly support the detained person, as well as helping them to process any feelings around the discharge application (they can be extremely dehumanising, and if unsuccessful, can lead to feelings of hopelessness and despair).