Mental Health Tribunal in UK Law

Particularly given the preponderance of that opinion in the written reports, it was inappropriate for the Tribunal to determine the issues before them as if the only significant evidence was the oral evidence, and in any event without giving the Hospital and the local authority the option of calling Dr Heads or Dr Lomax (neither of whom, incidentally, could be said to be other than independent of Ashford), provided that could be done without undue delay.

Secondly, it appears from Mr Lloyd's note that at no stage of the hearing before the Tribunal announced their decision were the parties before the Tribunal informed of the findings of Dr Cashman as a result of his interview with H.

However, when they make their decisions the ASW and the doctors cannot know whether the decision of the Tribunal will subsequently be held to be unlawful. In my judgment, it is sufficient if they are advised, on substantial grounds, that the decision is unlawful, and that either proceedings for judicial review of the decision have been commenced or that such proceedings are imminent. The patient's remedy is to apply to the Mental Health Review Tribunal.

Indeed, in our experience where a tribunal refuses an application for a discharge it usually gives reasons for doing so that involve a positive finding that the patient is suffering from a mental disorder that warrants his or her continued detention.

(4) The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued.

The mere fact that an arguable case for judicial review has been demonstrated is not a sufficient reason for granting a stay. If the patient refuses to return to the hospital following the grant of a stay, the machinery of the Act can be mobilised to ensure that he does: see, for example, section 18. Even in such a case, the court should not grant a stay in the absence of cogent evidence of risk and dangerousness.