‘Is the Tribunal really a Safeguard?’

1. ‘Is the Tribunal really a Safeguard?’ ‘Taking Stock’ Manchester – 15/10/10 John Horne - Law School, Northumbria University

2. A safeguard for whom? • The Public? • The Responsible Authority? • The State? • The Patient.

3. E.C.H.R. compliance Article 5(4) ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’

4. A safeguard against unlawful/unjustified detention/compulsion? • Tribunal’s task is to consider lawfulness of detention/compulsion at the time of the hearing. • Lord Bingham in Von Brandenburg (2003): “.... the tribunal has no power to consider the validity of the admission which gave rise to the liability to be detained: see ex parte Waldron [1986] QB 824, 846........... “

5. But if Article 5(1)(e) is obviously breached? Article 5(1) ‘Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …………………………………. (e) the lawful detention of persons … of unsound mind …’

6. A safeguard against continued unlawful/unjustified detention/compulsion? Yes • Most (but not all) detained/compelled patients can access; • There is provision for references (albeit inadequate?); • In some instances, a duty to discharge. • In unrestricted cases, a power to discharge. • ... and a forthcoming Tribunal hearing does ‘concentrate the mind’. and yet....................

7. Couldn’t the Tribunal be a greater safeguard than it is? • Shouldn’t the Tribunal be a greater safeguard than it is? • achievable without any legislative change needed?; • as a consequence of amendments to Part 5 of the MHA?

8. Key features of the Tribunal Firm recognition that: • the Tribunal is a Court; • the ‘overriding objective’ is to deal with cases ‘fairly and justly’; • its decisions are to be respected (e.g. consider ‘re-sectioning’).

9. Progress over the years........ (but still room for considerable improvement) • Free legal representation; • Increased expectations in respect of quality of the evidence – e.g. the Practice Direction; • The more demanding ‘non-disclosure’ test; • Greater willingness to enforce professional compliance; • Greater transparency in respect of the MM’s role; • More detailed reasons; • A determination to reduce delays .... and damages for breach of Art. 5(4); (cont.)

10. Progress over the years........ (cont.)(but still room for considerable improvement) • The removal of the burden of proof from the patient; • The ‘fair-minded and informed’ observer test re bias on the panel; • The specialist experience on the panel when patient is < 18 yrs; • The cohort of salaried judges (and recently the appointment of a salaried MM); • The widening of the RP panel to include ‘ticketed’ salaried judges; • Deferred CD patients no longer being left ‘in limbo’; • The easier reviewing/appealing process; • The creation of the Upper Tribunal.

11. Ripe for immediate improvement • Less delay; • Greater professional commitment to the tribunal process; • Tribunal assistants as the norm; • Responsible authorities always providing the Section B information; • More comprehensive reports – filed in sufficient time; • More detailed reasons; • Better – and better funded - legal representation.

12. Legal representation – a diversion “.... It is not just a matter of knowing the law. It is also about time spent listening and building up a relationship and rapport, and becoming privy to their confidences. It is a privileged position to be a party to their innermost confidences, and such a relationship cannot be abandoned lightly . What am I to say to a client I have represented for the best part of 20 years, when I tell them my legal aid quota has run out and they will now have to see someone else? They will not understand the market place which is now the legal aid system” Luke Grant (Solicitor, Worcestershire) Letter to the Law Society Gazette 2/9/10

13. Brooke L.J. in R v Legal Aid Board ex parte Duncan(High Court) (2000) “We are worried, however, that the Board [as the Legal Services Commission was then called] has not yet appreciated how difficult mental health law is ......... Mental health law is difficult enough today. Reading the report of a psychiatrist, identifying its areas of weakness, commissioning evidence from the appropriate expert to challenge it, and representing a client at a tribunal requires expert professional skills born .... of education and practical experience. It is not like going down to the magistrates' court as a duty solicitor, arduous though those duties are. In the fairly near future the demands made on skilled solicitors in this field are going to increase exponentially..................”

14. Ripe for immediate improvement (cont.) • Section 117/CPA/MDT meetings always happening before tribunal hearings (not “next week”) ; • Adjournments being no longer necessary for ‘negative’ reasons – inadequate reports, non-attendance of key players, etc. – BUT still being used ‘in the interests of justice’. • When declining to discharge, Tribunals noting in their reasons the plans they have been told about re future leave, transfer etc. AND the next panel as a matter of course accessing that previous decision; • Legal reps. appreciating that their role continues post–hearing, and the Legal Services Commission recognising that, and IMHAs ‘reminding’ them.

15. ... And now the debateable ‘stuff’........ .....but first a reminder of the Tribunal’s twin straitjackets: • The statutory criteria which are so easy to satisfy; • The tribunal’s powers which are so limited.

16. Criteria in respect of s.3 and s. 37 patients • Mental disorder of a nature or degree which makes it appropriatefor him/her to be liable to be detained in a hospital for medical treatment? • Necessaryfor the health or safety of the patient or for the protection of other persons that he/she should receive such treatment? • Appropriate medical treatment is available for him/her? • Appropriate to discharge under its discretionary powers? [Barred s. 3 NR applications only - likely to act in a manner dangerous to self or others?]

17. Duties/Powers in respect of ‘unrestricted’ patients • The patient shall be discharged immediately from liability to be detained. OR  • The patient shall be discharged from liability to be detained on ............ OR  • The patient shall not be discharged from liability to be detained.

18. Statutory power to ‘recommend’ (unrestricted patients only) With a view to facilitating discharge on a future date, the Tribunal recommends that: - • the patient be granted leave of absence • the patient be transferred to another hospital • the patient be transferred into guardianship • the responsible clinician consider whether to make a CTO. In the event of any such recommendation not being complied with by …………….. the Tribunal will decide whether to reconvene.

19. The debateable ‘stuff’? I would like to see Tribunals.... • Continuing to be so much more than a ‘rubber-stamp’; • Continuing to make extra-statutory recommendations; • Being less ready to silence participants with the phrase ‘Not within our remit’; • Making greater use of the panel’s expertise.

20. The overriding objectiveRule 2 • The overriding objective is to deal with cases fairly and justly • Dealing with a case fairly and justly includes: • Dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; • Avoiding unnecessary formality and seeking flexibility in the proceedings; • Ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; • Using any special expertise of the tribunal effectively; and • Avoiding delay, so far as compatible with proper consideration of the issues.

21. Back (once more)tothe debateable issues....... For example, I would like to see Medical Members as standard practice... Not just thoroughly perusing the Notes, but also.... • Reviewing the treatment forms – Forms T2, T3 etc; • Checking there has been a proper capacity assessment; • Scrutinising and debating the ‘diagnosis’ and treatment plans.

22. And possible statutory changes? How about ‘unrestricted patient’ panels being empowered to: • Formally recommend much of what is presently the subject of extra-statutory recommendations – with the power to reconvene if not acted upon; • ‘Report’ concerns to the Care Quality Commission (and others?); • Vary CTO conditions; • Impose CTOs (with the power to defer).

23. ... and I cite in support .... Lady Hale in ‘Mental Health Law’ (Sweet & Maxwell 5th ed. (2010)): “Another curiosity is that, unlike their powers in relation to CD restricted patients, the tribunal have no powers to alter the conditions to which a community patient is subject ............ It is curious that ..... the tribunal have no power to make a CTO over an unrestricted patient, while they do have the equivalent of both powers over a restricted patient. One (unconvincing) explanation may be that the circumstances in which they have the power to discharge a restricted patient are more limited.”

24. And possible statutory changes? (cont.) How about ‘restricted patient’ panels being empowered to: • Direct transfer to conditions of lesser security, with the power to defer; • Formally recommend much of what is presently the subject of extra-statutory recommendations e.g. leave, with the power to reconvene if not acted upon; • ‘Report’ concerns to the Care Quality Commission et al. [Incidentally should the SoS really be empowered to vary conditions attached by a tribunal to a conditional discharge? (s.73(5))]

25. ... and I cite in support .... Professor Taylor et al in ‘Limits to the value of MHRTs for offender patients’ (British Journal of Psychiatry; 1999): “... We recommend ... an additional power for MHRTs – to direct moves between levels of security.” .............................................................................................................................. Richardson & Thorold in ‘Law as a Rights Protector: Assessing the MHA 1983’ (1999): “ ...Tribunals must be given the power to order a transfer. They must also be given greater power to force the provision of after-care arrangements, ultimately a power to direct...”

26. Back to the question – ‘Is the Tribunal really a Safeguard?’ • Yes it is ................but it can/should be a greater safeguard than it is at present. • The First-tier Tribunal (MH) has now been with us for two years – should its role & functioning now be the subject of a research study?

27. Some Upper Tribunal Decisions

28. Access to the First-tier Tribunal (Mental Health)

29. S. 3 patients who become subject to a CTO.AA v Cheshire and Wirral P’ship NHS Found’n Trust [2009] UKUT 195 (AAC) • UT Judge Rowland decided that an application to a MHT by a patient whilst subject to a s. 3 does NOT lapse if between date of appl’n and the hearing date the patient becomes subject to a CTO. The hearing date is not ‘abandoned’ – the hearing proceeds to consider the application as an appeal against the CTO. • This decision is comparable to that in Re M (1998) (High Court). However it flies in the face of the decision of Stanley Burnton J. in R (on the application of SR) v MHRT (2005) (Admin. Ct.). In that case a s. 3 pt. became subject to SD (formerly s. 25 A MHA 1983) between appl’n and hearing. The Judge concluded that the application had lapsed, and that if the patient wished to challenge the SD a fresh application would have to be made.

30. AA v Cheshire and Wirral Partnership NHS Foundation Trust (cont.) • Judge Rowland distinguished the reasoning of Stanley Burnton J. in Re SR. A major difference of course between a CTO and SD is that whilst the former is in existence the s. 3 ‘hovers’, and is reactivated should the CTO be revoked, whereas when a patient was made subject to SD the s. 3 was discharged. • There are practical consequences to Judge Rowland’s decision, not least the fact that reports will have been prepared in respect of a section 3 detention rather than a CTO, so the hearing may well need to be adjourned for fresh reports etc. • However the appl’n remains ‘alive’. Rowland J recognised that “this decision will plainly have implications for other cases, but …. parties need to co-operate sensibly with each other and the First-tier Tribunal….. In particular.… it is also clearly incumbent on all parties to inform the tribunal whether or not a postponement of any hearing that has already been fixed will be required in the light of any change of circumstances.”

31. KF v Birmingham and Solihull Mental Health NHS Foundation Trust [2010] UKUT 185 AAC • This case considered (amongst other matters) the fate of a reference to the MHT of a s. 3 pt. who was placed on a CTO prior to hearing. • The UT saw no reason to hold that references to the MHT should be treated any differently to applications, and so following AA, ruled that the reference doesn’t lapse. • “The application or reference still falls to be determined by the tribunal in accordance with the patient’s status at the time of the actual hearing and subject to the relevant criteria under section 72(1)(a)-(c).”

32. Non-disclosure

33. The ‘new’ test for ‘non-disclosure’ Rule 14(2). The Test: “(a) Disclosure likely to cause that person or some other person serious harm, and (b) having regard to the interests of justice, direction for non-disclosure proportionate?” If ‘yes’, then no disclosure of the particular document to that person. ......................................................................................................... Rules 14(5) & (6) Tribunal may give direction for disclosure to rep. if satisfied (a) disclosure to the rep. would be in the interests of the party and (b) the rep would not be likely to disclose either directly or indirectly to any other person without the Tribunal’s consent.

34. RM v St. Andrew’s Healthcare [2010] UKUT 119 (AAC) “What if a patient’s best interests medically clash with his best interests legally? Can they be reconciled? If not, which prevails? That is what I have to decide. There is no entirely satisfactory answer. Any answer creates problems.” Judge Jacobs. • Addendum Reports of RC and Nurse revealed covert medication. • First –tier Tribunal panel agreed on non-disclosure. Decision appealed. • Would non-disclosure be “proportionate, having regard to the interests of justice” (Rule 14(2)(b))? • Judge Jacobs concluded that it would not be. He directed disclosure.

35. RM v St. Andrew’s Healthcare (cont.) Jacobs J: “The tribunal may hold a hearing with the patient present. If it does, his legal team will not be able to present the real case. They cannot disclose the covert medication. Nor can the medical witnesses or the tribunal. Everyone in the room will know what the patient does not. They will be reduced to performing a mere mummery. Justice will not be done at the hearing; it will only seem to be done. The real proceedings will have to be conducted out of the patient’s sight and knowledge.” “Without knowledge of his covert medication, the patient will continue to believe that his symptoms do not justify his continued detention. He will not mentally be able to accept the need to engage with treatment. At the best, his chances of taking steps towards his ultimate release will be hampered by lack of knowledge of the real reasons for his detention.”

36. And another earlier case on non-disclosure........... Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) “However, rule 14 does not provide the only procedure by which disclosure of documents can be withheld. The medical records of many patients contain documents from third parties which, irrespective of any harm to the patient that may ensue from their disclosure, may be sensitive. For example, a relative of a patient may provide details of his/her own medical condition which may be relevant to that person’s ability to look after the patient if the patient were returned home; or simply set out reasons why, if the patient were returned home, relatives or potential carers would be unable to cope.....”

37. Public Hearing?

38. AH v West London MHT and SSJ [2010] UKUT 264 (AAC) • 51 yr old patient continuously detained for > 23 years (mostly at Broadmoor HSH). First-tier Tribunal refused request for a public hearing. He appealed. • U.T. have not yet made a final decision (they adjourned for more information). But they said the relevant factors in deciding re a public hearing are: • Is it consistent with the subjective and informed wishes of the applicant (assuming he is competent to make an informed choice)? • Will it have an adverse effect on his mental health in the short or long term, taking account of the views of those treating him and any other expert views? • Are there any other special factors for or against a public hearing? • Can practical arrangements be made for an open hearing without disproportionate burden on the authority?

39. Mental Disorder?

40. DL-H v Devon P’ship NHS Trust v Sos for Justice [2010] UKUT 102 (AAC) Judge Jacobs: “It is important to understand the purpose for which the criteria were devised. The specific criteria in ICD-10 are labelled as diagnostic criteria for research, and the Introduction to ... DSM-IV (4th ed.) contains this warning: “... In most situations, the clinical diagnosis of a DSM-IV mental disorder is not sufficient to establish the existence for legal purposes of a ‘mental disorder’.” That leaves open the question of how a patient’s mental state is to be classified for the purposes of the MHA. The answer cannot depend on the manual that happens to be used. This is an issue that will have to be considered by the Upper Tribunal in an appropriate case. There must be an answer that provides protection for patients from vague or differing definitions while ensuring that those who present a danger are not left free to harm themselves or others for failing to meet over-prescriptive criteria.”

41. Availability of Appropriate Medical Treatment?

42. MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59 (AAC) • Patient had an antisocial personality disorder, linked with sadomasochism. He challenged a tribunal decision not to discharge his ‘notional’ s. 37. He was detained at Rampton HSH. • First-tier Tribunal had concluded: • Taking a long term view, ‘appropriate positive psychotherapeutic treatment is available here’; • Alternatively, the patient had been engaging in and benefiting from the specialist nursing care and ‘milieu’ therapy on the ward. “The latter is professional shorthand for nursing and specialist day to day care under clinical supervision of an approved clinical [sic], in a safe and secure therapeutic environment with a structure [sic] regime.” (Jacobs J. in UT) (c.f. para. 6.16 Code) • lll

43. MD v Nottinghamshire Health Care NHS Trust (cont.) Appeal was based on two arguments: • Detention without the possibility of reduction of the risk posed by the patient was containment, and that is not treatment. Argument rejected by the UT Judge: “The treatment has to be appropriate, but it need not reduce the risk”; look at the wording of s.145(4): “ Any reference to medical treatment, in relation to mental disorder shall be construed as a reference to medical treatment the purpose of which is to alleviate or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.”

44. MD v Nottinghamshire Health Care NHS Trust (cont.) The second argument? 2. If there was no prospect of the patient progressing beyond ‘milieu’ therapy, his detention became no more than containment – not treatment. UT Judge accepted that “if that were the position, there might come a point at which detention was no longer appropriate” but on the facts the tribunal had found there was potential for the milieu to benefit the patient in both the short and the longer term, and this the UT Judge accepted. Appeal rejected.

45. MD v Nottinghamshire Health Care NHS Trust (cont.) Judge Edward Jacobs: “I have not given a definition of either ‘available’ or ‘appropriate’. Nor have I drawn the boundary between containment and treatment. Those are matters of fact and judgment for the tribunal. It is an expert body and it has to use that expertise to make its findings and exercise its judgment. In doing so it has to grapple with difficult issues of evidence and principle that affect the liberty of the subject. That can only be done, as the tribunal did in this case, on the evidence before the tribunal and in the circumstances of a particular patient’s case at the time of the hearing before the First-tier tribunal.”

46. DL-H v Devon P’ship NHS Trust v Sos for Justice [2010] UKUT 102 (AAC) Judge Jacobs: “.. [There is a] danger that a patient for whom no appropriate treatment is available may be contained for public safety rather than detained for treatment ...... The tribunal must investigate behind assertions, generalisations and standard phrases. By focusing on specific questions, it will ensure that it makes an individualised assessment for the particular patient. • What precisely is the treatment that can be provided? • What discernible benefit may it have on this patient? • Is that benefit related to the patient’s mental disorder or to some unrelated problem? • Is the patient truly resistant to engagement?”

47. Equality of arms

48. MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59 (AAC) Judge Jacobs: “ ... [The tribunal] is ... a body with its own expertise. Its use of that expertise is an important contribution to ensuring equality of arms. The psychiatrist on the panel makes an examination of the patient and the panel uses its collective knowledge, experience and expertise to assess the evidence. Both those tasks are performed independently. They reduce the need, which may exist in the court system, for the patient to have their own expert evidence. Patients are of course entitled to produce evidence on their own behalf. My point is simply that greater access to experts is not a necessary, or the only, way to ensure equality of arms that the law requires.”

49. ‘Parties’ in the Upper Tribunal

50. RH v South London and Maudsley NHS Foundation Trust (Restriction Order) [2010] UKUT 32 (AAC) • Judge Rowland expressed considerable concern in this case about the failure of both the Trust and the SoS to be legally represented. • He recognised that “this lack of engagement may be partly because the right of appeal to the UT is a new one” . • He compared the UT route with “... the past, [when] challenges to decisions of MHRTs were brought by way of proceedings in the Admin Court for judicial review.” He went on: • “Now there is a statutory appeal on a point of law to the UT. The First-tier Tribunal is not a party to such an appeal and the managers of the hospital are a respondent with the SoS for Justice also being a respondent in a case where a pt. has been subject to a restriction order.”