The New Mental Health Act: A guide to the appeals process - information for service users and their carers

4 When can I appeal to the Tribunal?

Short-term detention

You and your named person can apply to the Tribunal to have this detention cancelled.

Compulsory treatment order ( CTO)

If you are on a CTO you and your named person can ask the Tribunal to change or cancel your order. (If your appeal is unsuccessful you can make further appeals although the act sets a limit on the number of appeals you can make in any year.) In general you cannot appeal until you have been on the order for 3 months.

Orders related to criminal proceedings/offence

If you are on a compulsion order you and your named person can appeal to the Tribunal to:

• be conditionally discharged
• cancel the restriction order
• cancel the restriction order and change the measures set out in your compulsion order
• cancel the compulsion order.

If you are on a compulsion order with restrictions you and your named person can appeal to the Tribunal to cancel the order or to vary the conditions of the order.

If you are on a transfer for treatment direction or a hospital direction you can appeal to the Tribunal against your detention in hospital. If you are successful you will return to prison to serve the remaining part of your prison sentence. There are time limits on when you can first appeal and how often you can appeal in any year.

Security levels

From 1 May 2006 if you are in the State Hospital and subject to a CTO, compulsion order (with or without restrictions), a hospital direction or a transfer for treatment direction you will be able to appeal to the Tribunal that you are being held in conditions of greater security than are necessary for your care and treatment. Other people can also appeal on your behalf. These are:

• your named person
• any guardian or welfare attorney you may have
• the Mental Welfare Commission.

If you are successful the hospital will have to transfer you to a hospital with more suitable security for you. A place must be found for you within the time set by the Tribunal. If not, the hospital will need to tell the Tribunal and a further hearing will be held.

If you are a restricted patient Scottish Ministers will have to agree the hospital you are to be transferred to is suitable.

Transfer to a hospital in Scotland

If your RMO thinks that you should be transferred to another hospital in Scotland for care and treatment for your mental disorder and you do not wish to go, then you or your named person can appeal to the Tribunal against this transfer. If you are successful and the transfer has taken place the Tribunal can order that you are transferred back to the hospital you were in before the transfer.

If you are transferred to the State Hospital you must make your appeal within 12 weeks of being told or of the transfer taking place (if you were not told about the transfer in advance). If the transfer is to a hospital other than the State Hospital you must make your appeal within 28 days.

Transfer to a hospital outside Scotland

If your doctor tells you that he/she is considering transferring you to a hospital in another country, and you do not wish to be transferred, you should inform Scottish Ministers of your wishes or preference about the proposed move. This must be done within 7 days of being formally told about your transfer. You can appeal to the Tribunal against the proposed move. You cannot be transferred until the Tribunal has decided your appeal. (You cannot appeal to the Mental Health Tribunal for Scotland after you have been transferred. However, you will have rights to appeal to the Tribunal or court in the country to which you have been transferred.)

Appeal against unlawful detention

If you are in hospital, but not subject to a compulsion under the Act, you should be able to discharge yourself from the hospital when you wish. If for any reason this appears not to be the case you and a number of other people on your behalf can apply to the Tribunal for an order requiring the hospital managers to discharge you.

These people are:

• your named person
• if you are a child, any person who has parental responsibilities for you
• a mental health officer
• the Mental Welfare Commission
• any guardian or welfare attorney who has been appointed under the Adults with Incapacity Act to look after your interests
• any other person having an interest in your welfare.