Almost
everyone who is subject to a section of the Mental Health Act, including Sec.2,
3 & 4, Guardianship and Community Treatment Orders, is entitled to appeal
against their detention.
Prior
to the changes to the MHA made by the 2007 Act, the Mental Health Act
Commission was responsible for arranging and overseeing these appeals. The 2007
Act, however, transferred this duty to the Ministry of Justice, and the Mental
Health Tribunal became just one of the Tribunals in the First Tier system.
These tribunals cover everything from employment issues to Social Security and
Child Support.
A
Mental Health Tribunal consists of a Judge, a consultant psychiatrist, and a
specialist lay member, who is someone not a lawyer or a doctor but with a
particular interest in mental health, such as a social worker or a nurse. This ensures that there is a balanced
perspective when assessing whether or not a detained patient should be
discharged.
I
have had mixed feelings about this transfer of responsibilities, not least
because the now defunct Mental Health Act Commission kept useful statistics
relating to what happened to people who appealed.
For
example, in 2008, the last year that such records were kept, there were a total
of 7295 tribunals. Of these, 967 patients were discharged, which amounts to 13%
of all appeals.
However,
in addition to this, 5862 patients who appealed were discharged by their psychiatrist
prior to a hearing. In other words, it was clear that it was worth a patient
appealing, as they would have a good chance of being discharged before the
hearing simply because their psychiatrist either could not justify continued
detention, or (Heaven forbid) could not be bothered to write a report. Even if
the appeal did get to a hearing, they then had a 13% chance of being
discharged.
Unfortunately,
the Ministry of Justice does not keep such records, so we have no way of
knowing this sort of information.
Anyway,
the reason I am writing this blog is to highlight a document which has just
been released by the Department of Justice, titled Transforming Our Justice System.
There
are a lot of fine words in this document. It begins by boasting how wonderful
our present justice system is, before stating:
“The
transformation of the courts and tribunals across the country will be based on
three core principles that build on its established strengths: Just, Proportionate,
Accessible.”
It
is also keen to save costs, and sees one of the ways of doing this as using
technology to streamline the legal process.
It
breezes through somewhat vague plans for the criminal and civil courts before
reaching its plans for the Tribunal system, towards the end of the document’s
brief 16 pages.
On
the surface, there is nothing contentious about this section. It begins:
“Tribunals
are an essential component of the rule of law. They enable citizens to hold the
state and employers to account for decisions that have a significant impact on
people’s lives. The hallmark of the tribunals system is the delivery of fair,
specialist and innovative justice. That must not change.”
It
is keen to adopt “a more inquisitorial and problem-solving approach, focused
around the needs of individuals so that claimants can be more confident that
their needs will be understood.”
It
goes on to suggest that “Innovative ‘problem-solving’ opportunities will be
created to improve the determination of a range of issues which have
historically been spread across courts and tribunals. This ‘one stop shop’
approach is being piloted with property disputes which can be dealt with before
one specialist Judge”.
And
then it drops a bombshell: “The potential to extend this into other areas such
as Mental Health and Employment will be explored.”
And
that’s all. There is no detail as to exactly how these changes will come about.
But
what the vision statement is saying is that the Ministry of Justice are
seriously considering replacing the current Mental Health Tribunal, with its
three members, with a single Judge.
They
are actually thinking that it may be OK to dispose of the psychiatrist and the
lay member.
In
my view, the Tribunal psychiatrist has a very important role to play. They may
be the only psychiatrist not employed by the NHS (or a private hospital) to
interview and independently assess the patient. It is the patient’s only chance
to put their views about detention to someone not involved in their treatment.
The
lay member also has an important role to play, to explore the social dimension
of the patient, and to provide a “lay”, if also expert, opinion.
Unless,
like a Coroner, the Judge is qualified in both Law and Medicine, I find it hard
to understand how a Judge alone can make the complex judgments required to
reach a just conclusion in the absence of the other two Tribunal members.
I
know it’s only mentioned in passing, that this statement is a mere outline,
that there may be many changes before these proposals are initiated.
But
we need to be on our guards, if we want the Mental Health Tribunal to continue
to provide a check on the mental health system, and give detained patients a platform
on which to be properly heard.
