S.86 MHA - "removal of alien patients"

I am wondering if any of you could assist me at all in relation to a s86 referral to MHRT by the Secretary of State for a client of mine. My client is a US citizen with no right to remain in the UK. He was initially detained under s.2, now s.3, with a firm diagnosis of paranoid schizophrenia. The Managers are applying for compulsory repatriation as he is refusing to return to the US.

When I was told by the Hospital that they were making a request to the Secretary of State, I initially thought the referral would be under The Immigration Act, but have now received a copy the referral and can see that it is for a MHRT Hearing. Our firm has not had one of these before, I have no immigration training and am unsure what the MHRT is determining and how……

Firstly, do you know if our Legal Aid covers this, I am presuming yes as it is a referral to the MHRT.

I have looked at s86 in some depth and can see that the Secretary of State can issue the Warrant authorising the removal of my client for his care and treatment if it is in his best interests to remove him, but the “approval” of the appropriate Tribunal must be given.

I cannot find any guidance on what the statutory criteria the MHRT would consider when deciding whether to give their “approval”, and likewise how they decide what is in his best interests. Clearly for s3 the Tribunal considers the criteria under s72 as to whether continued detention in hospital for treatment is appropriate and necessary. But I am at a loss to see where their powers extend to give “approval” to the Secretary of State and upon what criteria?

It may be that I am looking in the wrong sections, but I have reviewed MHA s86 and s72, Tribunal Procedure Rule 32 and also Section 38 of the Mental Health Act Reference Guide and cannot find anything that helps me any further.

Are you able to offer me any guidance or point me in the right direction to further my reading before I decide whether to continue to represent?

The Scottish and English Mental Health Regimes may be rather different, but I faced a similar situation in 2015 in K V mental Health Tribunal for Scotland 2015 SLT (Sh.Ct) 197. This ultimately was not successful for the patient, but I draw it to your attention in relation to the Art.8 discussion.

S.86 is pretty stark, but it seems to me that the SofS would have to obtain approval for removal and be satisfied, whatever the merits, the SofS or the MHRT are acting in compliance with Art.8. In short, is the decision proportionate. I can send a copy of the case if it helps.

Best Wishes,
David W Cobb

Hi David

Thank you very much for responding to my question. Yes, if you could please send a copy of the case I would be grateful.
Many thanks

Could you sent an e-mail address to davidcobb@amadvocates.co.uk please?


Hi Wendy

There is a profoma that has be completed before the SOS will make the reference. The profoma requires information about were for example the hospital the patient will be going to