If my NR applies to the tribunal, can they get representation?
They have the same right to appoint someone to represent them at their tribunal. This can be a legal representative or a non-legal representative.
They are also entitled to get free legal aid when applying to a Mental Health Act tribunal. They may be entitled to get legal aid when applying to a County Court.
If a tribunal is requested by the NR it says on the Rethink website that NR has the same right to represent themselves at the hearing - would that mean also that the person detained and the NR can both be legally represented inside that courtroom?
What would happen within the trial with the NR present? Would the panel of ‘experts’ e.g. Judges, social workers etc - call the NR and ask them questions about the person sectioned? What is their contribution in the hearing?
What would happen if the RC was delayed after 3 days (72hrs)? Who does the RC send the ‘barring report’ to?
Yes, the NR can have legal representation and Legal Aid provides funding for this without means-testing. I’ve had hearings with two solicitors, sometimes it’s effective but sometimes it’s a “too many cooks” situation. The NR would almost certainly give evidence at the hearing - they would be asked questions initially by their legal representative, and then the patient’s rep, the panel, and the RAs rep (which is rare but can happen) can all ask follow-up questions.
After 3 days the patient is automatically discharged from section as there’s no way to extend this time limit. The RC sends the barring order to the “Hospital Managers” but usually to the Mental Health Act Office/Legislation Team who exercise those powers.
I would imagine that could be a useful situation having two solicitors, NR and a patient all trying to figure out and building a strong case to get discharge - then at the hearing one solicitor might approach their questioning from a different angle whilst the patient’s lawyer takes it from a different view - gives the person detained more supportive airtime. I guess?
Would it best just to have the one solicitor representing the patient or the NR?
No-as there may be a potential conflict of interest between the two. This can arise quite unexpectedly i.e the NR may suddenly decide that they do not want the patient discharged after all… In my experience it is always preferable to have two representatives.
The important point about a s3 NR discharge tribunal is that the statutory criteria focus on whether the patient is ‘likely to act dangerously’ and that really raises the bar for the responsible authority. It is possible for a patient to meet the usual criteria for detention but to be discharged on the NR application as they are not likely to act dangerously.
Agreed. I’ve had tribunals where the NR didn’t want to be represented but effectively attended as a witness in support of the patient (and obviously as a party in NR applications). That’s fine as long as you’re clear that you’re not representing the NR.
In fact I don’t know how the legal aid would work if you were to represent both. Maybe L1-L2 on one file and L1-L3 on the other.