Dr Choong writes of his perception that the number of Mental Health Act Section 2 detentions is rising, and refers to ‘an uncritical approach to using guidance that results in Section 2 being used much more frequently now’ and the ‘waste of time and resources in dealing with the inevitable extra tribunals’. ^{Reference Choong1}

His perception mirrors the national picture. From 1998/9 to 2008/9, total uses of Section 2 in National Health Service (NHS) hospitals in England went from 20 874 to 23 482 ² and the numbers continue to rise (25 622 in 2009/10). ³ Total use of Section 3 dropped slightly for the period 1998/9 to 2008/9, ² from 22 738 to 21 538. There was a corresponding increase in conversions from Section 2 to Section 3 (4048 to 5145). ² Data have to be examined carefully as figures may be given for England alone or England and Wales, give NHS and independent hospital figures either separately or together, and refer to total uses or admissions. Data usually refer to instances of detention, not the number of different individuals detained.

As to mental health tribunals being a waste of time and resources, I think there is room for another view. In 2007/2008, 21 849 applications were received, of which 10 380 were withdrawn before the hearing and 9137 were heard (3157 outstanding at year end); of those that were heard, 17% resulted in the section being discharged, which means over 1550 patients. ⁴ It is not possible to say in how many cases the responsible clinician discharged the section in advance of the hearing because the impending hearing focused his or her attention on the question of whether continued detention was justifiable, but if this was the case in even 10% of those cases, this would amount to over 1000 patients being released from detention of doubtful legality because of a forthcoming tribunal.

If patients are first placed on Section 2 and then converted to Section 3, they will be entitled to two tribunal hearings within the first few months of detention, rather than the one they would have if Section 3 were used initially. Moreover, the first tribunal would occur within weeks of admission, instead of up to several months later. Given the substantial number of detentions that are ended by tribunals, the decision to use Section 3 rather than Section 2 initially would appear to result in a large number of people being detained on doubtful grounds for longer than necessary.

Statistics on mangers’ panels are not published, so it is much more difficult to make a comparable argument about their usefulness based on objective information about their decisions.

As a clinician, I believe that the discipline of having to prepare for mental health tribunals by thinking through the reasons why my patients should be detained often leads to better decision-making and less restrictive care plans. The time it takes to write reports and attend tribunals seems a fair price to pay to ensure that those detained against their will have an effective right to challenge their situation.