What Exactly is the Ministry of Justice Intending to Do with Mental Health Tribunals?

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.