DMH 200 Regional Chairman, MHRT Southern
Region
SUBMISSION TO JOINT COMMITTEE ON MENTAL HEALTH
BILL
Professor Jeremy Cooper
Mrs Carolyn Kirby
His Honour Judge Phillip Sycamore
Mr John Wright
1. There are in excess of 22,000 applications
and referrals to the Mental Health Review Tribunal [MHRT] per
annum across England and Wales from detained mental patients,
seeking discharge from their section by a tribunal. Of these applications,
over 11,000 result in effective hearings.
2. The authors of this document are Professor
Jeremy Cooper [Regional Chairman, England South], Mrs
Carolyn Kirby [Chairman, Wales], Mr John Wright [Regional
Chairman, England North], who are the judicial officers tasked
with ensuring the effective judicial operation of the Mental Health
Review Tribunals in England and Wales; and His Honour Judge
Phillip Sycamore, Liaison Judge for the MHRT. The Regional
Chairmen[224] have
statutory responsibility for the appointment of the members of
each tribunal panel, together with a number of further statutory
powers and duties in relation to the judicial management of the
tribunal process, set out in the Mental Health Review Tribunal
Rules 1983. In addition to these statutory functions, the Regional
Chairmen have a number of responsibilities concerning the recruitment,
training, appraisal and discipline of tribunal members. The Liaison
Judge was appointed in 2002 by the Lord Chancellor to provide
leadership, direction and guidance to the Tribunal and to the
Regional Chairmen in anticipation both of the Mental Health Bill,
and the planned transfer of responsibility from the Department
of Health to the Department of Constitutional Affairs. Although
the MHRT is funded and administered by the Department of Health
[and in Wales by the National Assembly], it is accountable to
the judicial officers to provide effective administration of all
matters related to a tribunal hearing. The Liaison Judge reports
directly to the Lord Chancellor.
3. Although there are many matters contained
in the draft Mental Health Bill upon which we could comment,
we are limiting our contribution in this written submission to
those parts of the draft Bill that deal with the proposed new
Mental Health Tribunal [in particular pp 35-74].
4. The unanimous and strongly held position of
all four authors of this submission is that the proposed new tribunal
structure is unwieldy, unnecessary and unworkable. We believe
that the paradigm shift from a reactive to a proactive tribunal
has not been thought through at a level of detail necessary to
vouchsafe its capacity to achieve what it is intended to achieve,
which we understand to be a further strengthening of a patient's
right to have decisions about their liberty assessed with rigour
and independence. This commendable goal, which we entirely support,
can however be adequately and effectively safeguarded by relatively
minor changes to the current legislation. The proposed new tribunal
system with its monolithic straitjacket obliging every detained
patient and his or her treating team to appear before a tribunal
within a very short space of time following initial detention,
is hugely resource intensive and disproportionate to its aims.
It proposes a system that is cumbersome to the point that is
probably unworkable.
5. The Mental Health Act 1983, reinforced by
the Human Rights Act 1998 and extensive judicial review based
case-law, already provides a number of safeguards to a detained
patient's rights, in particular a robust route to a speedy challenge
to detention at regular intervals, in line with Article 5 of the
European Convention on Human Rights. The fact that around 50%
of the total number of detained patients in England and Wales
already make use of this right to challenge their detention, and
all patients who have not opted to apply to a tribunal will have
their cases automatically referred to a tribunal hearing, at
regular intervals [see s. 68 Mental Health Act 1983], provides
strong testimony to the robustness of the present system. All
patients currently have access to non-means tested legal advice
and representation by lawyers on the Law Society's specialist
Mental Health Lawyers Panel. The provision whereby the medical
member of a tribunal, who is an experienced consultant psychiatrist,
examines the patient in private before a hearing provides a further
direct link between the detained patient and the tribunal, a link
that case law has ruled to be entirely compatible with European
Convention rights: S v MHRT [2002] EWHC 2522 Admin. In
addition, each patient has the right to be examined by an independent
expert of their choice as part of the process of preparing for
a tribunal challenge to their detention, at which that expert
can give written and verbal evidence. Tribunal hearings are conducted
in a probing and rigorous manner, whilst also preserving the integrity
and dignity of the patient. Tribunals will not hesitate to discharge
a patient if they are not satisfied that the criteria for detention
have been established, and do in fact discharge patients in c.
12% of cases. In all the above circumstances we ask the question:
Why is it necessary to replace this largely effective system in
such a wholesale manner, when it is already broadly achieving
the goals that it is intended to achieve?
6. Our principal concerns in this respect can
be summarised as follows:
- Because of the particular nature of the patient/doctor
relationship the parties engaged in the new tribunal process [patient,
legal representative, treating team and social workers] will be
confused as to whether they are attending a judicial hearing,
or an extended case conference. The hearings will be neither fully
judicial, nor fully case conference. In contrast the current tribunal
has a clear judicial function. The panel listens to the evidence
from the hospital concerning a patient's diagnosis, treatment
and after-care plan, and in the light of this evidence decides
whether a reasonable case has been made for continuing detention.
Under the new system a tribunal will be asked to consider and
approve something completely different, a 'care and treatment
plan'. This could well involve taking written and verbal evidence
from up to 3 medical experts: the treating clinician, the Expert
Panel member, and the patient's own independent expert, all of
whom may have differing views regarding the correct diagnosis,
the appropriate treatment, the levels of risk and so on. We fail
to understand how a panel consisting of a lawyer, a lay member
and a clinical member can perform any meaningful judicial function
in such a context? How are they to be expected to evaluate the
competing 'care and treatment' plans in a judicial sense, and
what is the outcome expected from them? Are they expected to
write their own 'care and treatment' plan, as a synthesis of all
three experts, to prefer one over another, or to reject all three
plans, and adjourn for further advice?
Closely connected to these concerns is the likelihood
that as a result of these proposed new procedures the tribunal
will effectively become the detaining authority, as detention
cannot continue without its authority. This is in complete contrast
to the current position, whereby the tribunal is asked to review
the lawfulness of the hospital's decision to detain the patient.
We wonder how in these circumstances a subsequent discharge application
by a patient to the tribunal which authorised his or her detention
in the first place, can satisfy the requirement for an independent
and impartial tribunal?
- Linked to the above point is our concern that
the levels of bureaucracy and paperwork required of clinicians
under this new system, will rapidly cripple the capacity of clinicians
to carry out their clinical work. Busy practitioners already find
it hard to find the time necessary to prepare adequately for tribunals,
testified by the fact that in only 50% of cases do doctors manage
to write the patient's tribunal medical reports within the statutory
time limits set out in the legislation. Under the proposed new
system, not only will doctors continue to be writing these reports
for patients who are challenging their detention, they will also
be required to write a report to a tribunal for every single patient
they propose to detain for more than 28 days, a formidable extra
workload. This task will be further complicated by the requirement
of a further report from an Expert Panel Member, which is likely
to arrive late in the 28 day cycle, and may throw up a conflicting
view to that of the treating doctor. Add to this workload the
fact that the doctor will now have to attend a tribunal for each
of his or her detained patients within 28 days of their detention,
and the workload seems unreasonable and probably impossible to
manage.
- The proposed tribunal system is far too mechanistic,
and fails to take account of the volatile nature of mental illness
justifying sectioning a patient. Around 25% of patients who currently
apply to a tribunal withdraw their application prior to the application,
often at the last minute, although the administrative apparatus,
bookings, reports etc. necessary for the hearing to take place
have all been assembled. This can be for a variety or reasons,
but is often connected to their conclusion perhaps on medical
grounds that a tribunal is not in their best interests, or perhaps
they have become more ill, and do not want a hearing. It is not
clear how this statistic has been factored into the new proposal,
if at all, and how a patient's wish not to have a hearing
is to be taken into account.
7. What is clear is that efficient management
of this new system will place massive demands upon the tribunal
administration, demands that in our view the tribunal as currently
administered will be quite unable to meet. Whilst this is not
the forum in which to raise issues concerning the current administration
of the MHRT, it is important that we place on record our evidence-based
observation that [at least in England] the MHRT administration
is regularly failing to deliver a reliable, professional service
to tribunal users, a failure that it will require a long time
to turn around. The draft Bill fails to explain how the MHRT administration
that is currently systemically unable to deliver an effective
tribunal service, will find the resources to deliver a tribunal
that will far larger, and infinitely more complex.
8. Another major concern is the workforce requirement
associated with the new tribunal. If we take the Department of
Health's own workforce figures set out in the Explanatory Notes
to the Draft Bill on p. 134, we estimate that they will require
the recruitment, appointment, and training of c. 2375 new part-time
tribunal members, a task that is literally impossible to achieve
in the time scales, if at all. Where is the evidence of sufficient
personnel in clinical and medical field wanting to come forward
to do this work on such a grand scale? In the most recent competition
to appoint new medical members, there were only c. 60 applicants
for 16 posts, despite extensive advertising in all the relevant
professional journals. At the very least therefore we believe
that a commitment to creating a cadre of full-time tribunal members
will be essential to render these targets even remotely achievable.
We also believe that the tribunal workforce requirements are in
any event an underestimate as they fail to take sufficient account
of the likely increased length of tribunal hearings; of the likely
implications of the recent European Court ruling in the case of
H.L v UK, 5th October 2004 Appl. 45508/99;
of the fact that there are increasing disincentives to doctors
to offer their services to engage in the tribunal as Expert Panel
members or clinical members; and of the fact that no reliable
evidence has been produced to give us confidence that there are
sufficient number of lawyers who would wish to avail themselves
of the opportunity to join this new tribunal, as legal members.
9. Closely linked to the problem of recruiting
sufficient applicants for the tribunal posts, is the problem of
appointing and training new members. Currently the DCA has responsibility
for the recruitment of all MHRT members using a sophisticated
and highly developed process of pre-sifting, sifting, and interview
against established competences. A sift panel, involving a representative
of the DCA, a DCA-trained lay member, and a Regional Chairman
or nominated deputy can sift through c. 14 applications a day.
If a panel were to sift every day, five days a week, it would
therefore take about 34 weeks just to get through the 2375 sifts
required to call the minimum number of applicants. The DCA recommends
however, a ratio of interviews to posts of 3:1. To achieve this
ratio will require 102 continuous weeks of sifting, 5 days per
week. Interview panels can normally interview 4 candidates a
day. Thus, with an interview panel sitting every day, it will
take c. 9 years to complete the sifting and interviews
on a 3.1 ratio. This would be followed by training, with each
new member required to attend a 3-day induction programme before
being deemed competent to sit on a tribunal. If an induction training
event can hold a maximum of 100 delegates, around 24 3-day events
will need to be organised to meet this requirement, in addition
to the on-going training requirements for existing members. The
numbers are simply unrealistic.
To the best of our knowledge none of the above sifting,
interviewing and training requirements have been accurately costed
into the draft budgetary assumptions for the draft Bill.
10. There are a number of other issues that concern
us about the tribunal aspects of the draft Bill that can only
be touched upon in such a brief submission, but include:
a. The draft Bill proposes to reserve to secondary
legislation a number of central issues that ought to be the subject
of primary legislation, including for example the definition of
a 'clinical member,' which we have demonstrated must be central
to establishing the viability of the underpinning tribunal apparatus,
and the membership of the Expert Panel. In addition, the Bill's
proposed 'guiding principles', as set out in Clause 1 of the
draft Bill can apparently be disapplied by the Code of Practice,
which is also the subject of secondary legislation.
b. The draft Bill's failure to address the potential
range of conflicts of interest facing Expert Panel members providing
reports and evidence to tribunals is a further serious failing,
in the context of the proposed tribunal. With such proposed large
scale involvement of doctors on various sides of the tribunal
process, the potential for conflicts to dislocate the fluent running
of the system is high.
c. We are aware that the evidence of a number
of experts to the Joint Committee has indicated areas where there
is potential for human rights challenges to be mounted. The tribunal
will be the forum in which most of these challenges will take
place, which will add considerably to its already massive proposed
workload.
d. Little account has been taken by the draft
Bill's architects of the fact that each tribunal hearing will
inevitably last longer as the panels will be considering many
more issues than at present, across a wider spectrum. This will
have its own impact upon the capacity of the system to meet the
deadlines proposed.
e. It is impossible
to envisage how the number of hearings contemplated within the
scope of the draft Bill can actually be held within the time limits
which the draft Bill imposes. Failure to do so will result in
judicial reviews of the tribunal (an expense in themselves) with
possible liability to damages awards on the same basis as those
now being awarded to patients in England because of the failures
of their current administration: see R on the Application of
KB et al, v MHRT and the Secretary of State [2002] EWHC 735 (admin).
11. There can be no doubt whatsoever that the
administration costs of the MHT will rise very significantly over
those of the current MHRT, if it is to embrace the proposed new
system. This will not only be due to the vastly increased number
of hearings, but also to the need to chase far more reports, organise
the attendance of and reports from the Expert Panel and arrange
the large number of adjourned hearings which will inevitably arise
from the non-availability of key people due to excessive demands
on their time.
12. In summary, as the judicial officers with
ultimate responsibility for vouchsafing the quality of the tribunal
that is expected to underpin the operation of the proposed draft
Bill, we wish to express our grave concerns as to the feasibility
of its core assumptions. We believe it is essential that we give
oral evidence to the Joint Committee, in order to be able to explain
why we believe that the new system will not work.
October 28 2004
224
All references to Regional Chairmen hereafter include the Chairman,
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