Tuesday, 4 March 2014

Ian Brady’s Mental Health Tribunal – anything to learn?

In June 2013, Ian Brady had a week long mental health tribunal to appeal against his detention in Ashworth Hospital. He claimed that he had only feigned mental illness, and he wanted to be transferred back to prison on the grounds that he was not suffering from mental disorder of a nature or degree that made it appropriate for him to receive medical treatment.

In 1966 Ian Brady and Myra Hindley were convicted of the murders of five children. Myra Hindley spent the rest of her life in prison. However, Ian Brady was later transferred to a special hospital, and has remained in high secure hospitals until the present day.

This hearing was remarkable in several ways. Tribunals are normally held in private: the only people at most tribunals are the patient, his or her legal representative, and professionals involved in their care. But at Brady’s request, this one was held in public. It was only the second time that a hearing has been held in public. It was also the longest hearing that I can recall; generally, hearings take between 1-3 hours. It is reported that his legal costs amounted to £250,000.

He lost the appeal. Judge Robert Atherton concluded that: “Mr Ian Stewart Brady continues to suffer from a mental disorder which is of a nature and degree which makes it appropriate for him to continue to receive medical treatment and that it is necessary for his health and safety and for the protection of other persons that he should receive such treatment in hospital and that appropriate medical treatment is available for him”.

This decision was made at the end of June 2013. However, the written decisions were only published at the end of January 2014.

At the time of the original decision, the Daily Mirror described Brady as “unhinged and insane”. However, the written decision, which runs to 115 pages, is far more measured, although essentially reaching the same conclusion.

For many reasons, there was a high level of publicity surrounding this tribunal. This was the first time that Ian Brady had been at a public hearing since his original conviction in 1966. He and Myra Hindley have been notorious ever since their conviction for their truly appalling crimes, and interest in Brady is bound to continue until his death.

I’ve now read all 115 pages of the written adjudication. It makes fairly interesting reading.

It is important to understand that a Mental Health Tribunal can only decide on certain issues. In the case of Brady, these are that:

  • Brady is then suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment;
  • it is necessary for his health or safety or for the protection of others that he should receive such treatment; and
  • appropriate medical treatment is available for him.
If the Tribunal is not satisfied on these points, then the patient must be discharged. In Brady’s case, this would have meant a return to prison, which is what he wanted.

One of the remarkable things about the Tribunal’s reasons for their decision is the weight of medical evidence presented by psychiatrists, clinical psychologists and nurses involved with his care, as well as evidence provided by psychiatrists acting on behalf of Brady. In total, seven professionals gave evidence.

The hearing first had to decide whether or not Brady was suffering from mental disorder of a nature and/or degree making it appropriate for him to be treated in a hospital. There appeared to be no dispute that Brady had a severe personality disorder. On balance, the unanimous conclusion was that he had a personality disorder “which includes antisocial and narcissistic traits”.

The main area of dispute appeared to be regarding whether or not he additionally suffered from paranoid schizophrenia. The Ashworth professionals maintained that he did, while those representing Brady maintained that he did not. Brady himself stated in the Tribunal that he only pretended to exhibit symptoms of paranoid schizophrenia.

There is considerable discussion about “nature or degree”. The Ashworth contingent argued that his paranoid schizophrenia was indeed of both a nature and degree, while Brady’s supporters contended that “it is neither of a nature nor degree which makes it appropriate to continue his detention in hospital for treatment. They accept that he suffers from paranoia but attribute that to his personality disorder and regard any mental illness as being of minor importance”.

The problem with all this is that it is very difficult to argue against “nature or degree”. If  it is decided that someone does indeed have paranoid schizophrenia, then it is by definition of a “nature” to make it appropriate for them to receive treatment, even if the condition might be in remission and therefore not of a “degree”. Perhaps inevitably, those arguing on Brady’s behalf would fail to convince a Tribunal if the Tribunal had concluded, as they did, that Brady did indeed have paranoid schizophrenia.

Once the Tribunal had concluded that Brady had both mental illness (paranoid schizophrenia) and mental disorder (personality disorder), and that these were of a “nature and degree” that required treatment in a hospital, it was a simple step for them also to conclude that it was also necessary for his health or safety and for the protection of others. His defense could then only rely on whether or not “appropriate treatment” was available for him.

The Tribunal accepted that treatment would not include the use of medication, and that “Mr Brady is very unlikely to take part in any psychological treatment.” They therefore considered at length the definition of “treatment”.

The Tribunal stated that:
“Section 145(1) Mental Health Act 1983 provides “medical treatment” includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care. The Tribunal observed that this sub-section does not seek to provide a comprehensive definition. It sets out various actions which may be taken when seeking to assist a patient. There may be a degree of overlap of the nature of that assistance encompassed by the items mentioned but they must also connote some different action. Thus, in the opinion of the Tribunal whilst “specialist care” may include “nursing” it must also encompass other actions. Conversely, “nursing” does not necessarily encompass “specialist care”. This indicates the width of meaning of the term “treatment”.

The Tribunal considered, and clearly approved of, one of the witnesses, Professor Eastman, who “had divided the treatment of patients with mental health problems into three different forms, which had been referred to during the case as limbs one, two and three.”

 The Tribunal went on to describe these three treatment “limbs”:
“Limb one is treatment of the patient’s core disorder; limb two is seeking to give the patient the skills necessary to cope with situations that they had previously found difficult or stressful but without attempting to change the core disorder; limb three is management focused on managing the patient’s environment so that conflict in situations is minimised. This includes management in the hospital when the patient is on leave from the hospital and when the patient is in the community; “this neither alters the core disorder nor gives skills to the patient.””

While Brady’s defenders sought to disregard such things as nursing care and the building of a therapeutic relationship Brady as constituting “treatment”, the Tribunal ultimately disagreed, and adopted a much wider definition of treatment which was not confined purely to medical concepts of treatment.

The Tribunal therefore concluded, after 115 pages of argument and consideration of all the available evidence, that “it has been demonstrated by this evidence that it is necessary in the interests of his own health and safety that he be detained in hospital for treatment and that appropriate treatment is available.”

Brady did not, therefore return to prison.

While the findings of this Tribunal did not particularly contribute to case law regarding treatment, if nothing else, the publication of the Tribunal’s findings gives an insight into the workings of Tribunals which are generally invisible to the general public.