Mental Health Law

our expertise

Our highly specialised mental health law team advises and represents people who have been made subject to the compulsory powers under the Mental Health Act 1983, whether it be detention in hospital or being made subject to a CTO or conditional discharge.

We also frequently advise on the numerous legal issues that arise when people are detained in hospital, for example in relation to:

• Compulsory medication
• Entitlement to aftercare
• Mixed-gender wards
• Transfers to and from prison
• Inquests concerning deaths in detention
• Consultation with and displacement of patients’ nearest relatives.

Members of the team have also advised charities and pressure groups including MIND and Rethink on aspects of government mental health policy and proposed reforms to mental health law, and regularly provide bespoke training on mental health law and practice to solicitors and others. Several members of chambers are part-time judges of the First-tier Tribunal (Mental Health).

It is our belief that a multi-disciplinary approach will challenge and reduce the stigma, prejudice and discrimination which individuals with mental health problems continue to face in all areas of their lives and in the courts. Garden Court Chambers therefore also offers specialists in other areas of law who have particular expertise in representing people with mental health problems, within the criminal justice system, in care homes, and in immigration detention.

Notable cases

Upadrasta v The Commissioner of the City of London Police [2023] EWHC 1853
High Court rules that a claim for false imprisonment and other wrongs should still proceed, even though the application for leave under section 139 Mental Health Act 1983 had been made to a Master rather than a High Court judge, and the opposing side had not been fully notified of the application.

R (Maher) v First Tier Tribunal (Mental Health) & Ors [2023] EWHC 34 (Admin)
A successful challenge to the First Tier Tribunal (Mental Health)’s refusal to provide reasons for its decision to discharge a patient subject to a hospital order and a restriction order.

DD v Sussex Partnership NHS Trust [2022] UKUT 166 (AAC)
A successful intervention on behalf of Mind in an appeal against a First Tier Tribunal’s decision that it did not have jurisdiction to hear an appeal when a patient’s status had changed.

CS v Elysium Healthcare & Secretary of State for Justice [2021] UKUT 186 (AAC)
The Mental Health Review Tribunal for Wales erred in law in finding that it lacked jurisdiction to determine a restricted patient's application once he had become a different type of restricted patient. The tribunal retained jurisdiction and was required to determine the patient's application. The individual became a different type of restricted patient as a result of the Court of Appeal quashing a sentence of imprisonment for public protection.

DA v Central and North West London NHS Foundation Trust [2021] UKUT 1010 (AAC)
A successful appeal from the First-tier Tribunal’s decision not to absolutely discharge DA but to remove all conditions of his conditional discharge. The Upper Tribunal found the reasons for this decision failed to meet the legal standard of adequacy.

AD'A v Cornwall Partnership Trust (Mental health) [2020] UKUT 110 (AAC)
A successful appeal against the First Tier Tribunal’s decision that it did not have jurisdiction following a transfer from s. 3 detention to s. 7 guardianship. The tribunal's jurisdiction arose from the s3 application, and none of the subsequent changes (including a new right to apply to tribunal, different tribunal powers, and different parties) affected that jurisdiction.

A Health and Social Care Trust v Mr O and Mr R [2020] NIFam 23, High Court of Northern Ireland
An intervention on behalf of Northern Ireland Human Rights Commission in case concerning conditionally discharged patients.

SLL v (1) Priory Health Care and (2) Secretary of State for Justice (Mental health) [2019] UKUT 323 (AAC)
A successful appeal to the Upper Tribunal concerning a failure to give adequate reasons.

LW v Cornwall Partnership NHS Trust and Associated Cases [2018] UKUT 408 (AAC)
The Upper Tribunal provided guidance on the relevance of the risk of relapse when considering an application for discharge.

R (C) v Secretary of State for Justice [2016] UKSC 2; [2016] WLR 34
The Supreme Court gave guidance on the entitlement of mental health patients to anonymity in civil proceedings.

R v Aitchison [2016] EWCA Crim 739
A successful appeal in the Court of Appeal quashing a sentence of Imprisonment for Public Protection (IPP) and substituting it for a hospital order with restriction post-Vowles.

South Staffordshire and Shropshire Healthcare NHS Foundation Trust and Another v The Hospital Managers of St George's Hospital and AU [2016] EWHC 1196 (Admin)
An intervention on behalf of the detained patient in the Trust's review of the Hospital Manager's discharge decision.

Inquest touching on the death of Matthew Westgarth (Doncaster Coroner, 2016)
Critical narrative decision in respect of NHS failures in discharge from psychiatric hospital without a care plan.

YA v Central and NW London NHS Trusts and Others [2015] UKUT 37 (AAC)
The Upper Tribunal provided guidance on the application of Rule 11 concerning the appointment of legal representatives where a patient does not have capacity.

Inquest touching on the death of Brian Quaintmere (Southwark Coroner, 2015)
Critical narrative decision of failures concerning death while in psychiatric care.

NL v Hampshire County Council (Mental health: All) [2014] UKUT 475 (AAC)
The Upper Tribunal provided guidance on the relationship between challenges to guardianship powers and deprivation of liberty pursuant to a care plan.

TW v London Borough of Enfield [2014] EWCA Civ 362
A challenge to the High Court's refusal of s.139(2) leave to bring civil proceedings. The Court of Appeal granted leave and considered what is practicable for an AMHP to comply with the s.11(4) duty to consult the patient's Nearest Relative.

C & Anor v Birmingham and Solihull Mental Health NHS Trust & Anor [2013] EWCA Civ 701; [2013] AACR 1
A patient has no right to challenge a decision of the tribunal to refuse to make a statutory recommendation.

MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC)
Appropriate treatment test – noting that the treatment deemed appropriate for a particular patient is determined by the patient’s medical condition and the risk a patient presents is a consequence or feature of that condition. 

MM v Nottinghamshire Healthcare NHS Trust [2013] UKUT 107 (AAC)
Considering what inference is to be drawn from the fact that an independent psychiatrist who had visited a patient did not submit a report to the tribunal. The tribunal’s duty and the only proper course is to decide on the evidence available rather than speculate on possible explanations of why the report was not produced.

MS v North East London Foundation Trust [2013] UKUT 92 (AAC)
Written reasons should a) state what facts the tribunal found b) explain how and why the tribunal made them and c) show how the tribunal applied the law to those facts.

Secretary of State for Justice v MP and Nottinghamshire Healthcare NHS Trust [2013] UKUT 25 (AAC)
Section 1(3) MHA [‘dependence on alcohol or drugs is not considered to be a disorder or disability of the mind for the purposes of defining ‘mental disorder’].

R (W) v (1) Dr Fintan Larkin, (2) Secretary of State for Justice and others [2012] EWHC 556 (Admin)
Warrants for transfer to prison and the requirements of a Responsible Clinician in completing the s. 50 Mental Health Act 1983 (as amended) proforma. 

AC, Partnerships in Care Ltd v Secretary of State for Justice [2012] UKUT 450 (AAC)
UT Judge Jacobs said that the tribunal’s jurisdiction is limited to issues of discharge. It has no power to impose conditions as to release, which is the exclusive preserve of the Parole Board. 

AM v West London MH NHS Trust & Secretary of State for Justice [2012] UKUT 382 (AAC)
It is not necessary to have specific information about aftercare in every case. 

DC v Nottinghamshire Healthcare NHS Trust and the Secretary of State for Justice [2012] UKUT 92 (AAC)
The tribunal can adjourn at the outset to investigate the possibility of imposing conditions – i.e. adjourn any time before it is under a duty to direct a discharge.

MA v Secretary of State for Health & Others [2012] UKUT 474 (AAC)
Guidance given on the interaction between proceedings in the Tribunal and Nearest Relative displacement proceedings in the Court Court

MB v BEH MH NHST & Secretary of State for Justice [2011] UKUT 328 (AAC)
There had been a breach of natural justice where ‘the application for discharge had no prospect of success’ and the patient was invited to withdraw the application.

PS v Camden and Islington NHS Foundation Trust [2011] UKUT 143 (AAC)
Case concerned referred CTO patient who did not wish to cooperate or participate in the tribunal proceedings. 

MP v Mersey Care NHS Trust [2011] UKUT 107 (AAC)
If detained patient made subject to CTO during period of deferred discharge, CTO will end on discharge taking effect as the s.3 app upon which CTO is based will not longer be in place.

JP v Birmingham and Solihull MH NHS Trust. Appeal number HM/535/2010 (Unreported 30 July 2010) (Administrative Chamber Upper Tribunal)
An appeal for JP based on a challenge to the reasons given by a First Tier MHT refusing discharge of a patient detained under s 37 and 41 of the Mental Health Act 1983. The challenge was based on a failure to give adequate reasons for preferring the evidence of the Responsible Clinician and the detaining authority over the evidence of independent experts by applying BB v South London & Maudsley NHS Trust [2009] UKUT 157 (AAC) which was similar on the facts.

KF v Birmingham & Solihull Mental Health NHS Foundation Trust [2010] UKUT 185 (AAC)
Affirmed AA:. s.72 ‘liable to be detained’ captures patients who, in the context of references, may be detained under the Act when the reference is made and a community patient at the time of the hearing. 

RM v St Andrew’s Healthcare [2010] UKUT 119 (AAC)
Non-disclosure order in relation to documents recording the fact the patient was being covertly medicated, set aside.

MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59 (AAC)
There may be instances when medical treatment is available for a patient but because of the circumstances of a particular case it is no longer appropriate – treatment has to be appropriate but need not reduce the risk. 

R (PP) v Secretary of State for Justice [2009] EWHC 2464 (Admin)
The Secretary of State’s decision to reject an application for a restricted patient to be granted trial leave to a medium secure unit was lawful.

R (X) v Secretary of State for Justice [2009] EWHC 2465 (Admin)
The Secretary of State’s decision was quashed because neither the question of risk to others nor the positive benefits to the patient had been considered and the reasons presented in the summary grounds of defence were patently not the reasons for the decision.

M v South West London & St George’s Mental Health NHS Trust [2008] EWCA Civ 1112 (07 August 2008).
Court held that the Secretary of State had acted unlawfully in transferring a convicted prisoner to hospital at the end of his sentence without reasonably being satisfied that the transfer was medically justified.

RD, R (on the application of) v Mental Health Review Tribunal [2007] EWHC 781 (Admin)
The communication by the medical member of a “very preliminary” view was lawful, even though it went to detainability and not merely to mental condition.

R (Surat Singh) v Stratford Magistrates' Court & Others [2007] EWHC 1582 (Admin); [2007] 1 WLR 3119; [2007] 4 All ER 407; [2008] 1 Cr App R 2; [2007] ACD 72; The Times, March 27
A challenge by way of judicial review of the exercise of a district judge's discretion to refuse to allow the claimant to advance the defence of insanity in summary-only proceedings. Leading case as to identifying the common law defence of insanity in summary proceedings.

R (O) v MHRT [2006] MHLR 326; (2007) 93 BMLR 110; (2007) A.C.D. 16
The tribunal may further consider a patient’s application to the tribunal, including the power to agree to the patient’s request for his application to be withdrawn remain extant after the tribunal has made a recommendation under this provision.

R (Care Principles Ltd) v MHRT; R (AL) v Care Principles Ltd & ors [2006] M.H.L.R. 365; (2007) BMLR 145
Whether a tribunal decision to discharge was lawful and adequately reasoned; whether a subsequent re-detention of the patient was lawful.

R (B) v (1) A Haddock (2) Dr J Rigby (3) Dr Wood (2006) H.R.L.R. 40; (2006) Lloyd’s Rep Med 433; (2007) 93 BMLR 52; Independent, July 13, 2006; (2005) 85 BMLR 57 (first instance)
The lawfulness of forced treatment under section 58 Mental Health Act 1983.

R (SC) v (1) MHRT (2) The Secretary Of State For Health & Secretary Of State For The Home Department [2005] MHLR 31; (2005) A.C.D. 102; (2005) A.C.D. 89; Times, January 24, 2005
The compatibility of section 75(3) of the Mental Health Act 1983 with Article 6 ECHR.

R (LI) v MHRT [2004] M.H.L.R. 150; (2004) A.C.D. 74
The lawfulness of a tribunal’s decision not to discharge; the adequacy and intelligibility of its reasons.

R (PS) v (1) Responsible Medical Officer (Dr G) (2) Second Opinion Appointed Doctor (Dr W) [2004] M.H.L.R. 1
The lawfulness of forced treatment under section 58 Mental Health Act 1983.

Holder v Law Society [2003] 1 WLR 1059; [2003] 3 All ER 62

R (Tagoe-Thompson) v Hospital Managers Of Park Royal Centre [2003] 1 WLR 1272; [2003] M.H.L.R. 326; [2003] M.H.L.R. 321: Times, December 13, 2002; Independent, February 17, 2003 (first instance)
Permission granted, but appeal refused where 2 out of 3 members appointed by hospital managers to hear a review decided to order discharge and the responsible medical officer refused to order discharge.