CHAPTER ONE – WHAT IS THE MENTAL HEALTH TRIBUNAL?
Introduction
The Mental Health Tribunal (Mental Health Review Tribunal in Wales) is a branch of the Tribunals Service (which forms part of HMCTS: His Majesty’s Courts and Tribunals Service), that sits within the Health, Education and Social Care Chamber.
All patients subject to ‘sectioning’ under the Mental Health Act 1983 have a right to appeal against that sectioning (save for those patients subject to short-term emergency powers, and those subject to interim orders or remand by the criminal court). Such right satisfies the requirements of the European Convention on Human Rights (‘the ECHR’) and the Human Rights Act 1998, in that it provides a fair hearing and a means to challenge any Article 8 interference (the right to respect for private and family life). The Mental Health Tribunal is entirely independent of the Responsible Authority (the body – usually an NHS Trust – which is exercising its powers under the Mental Health Act 1983 to detain a patient or make them liable to be detained, sometimes also referred to as the ‘Detaining Authority’).
These appeals are heard by a panel provided by the tribunal service. Appeals can arise via an application by the patient (or by the Nearest Relative), or via the process of automatic referrals (or ‘references’) by the hospital manager.
The term ‘appeal’ is used in its most basic sense: it is an appeal against the use of the Mental Health Act 1983 and not an appeal against a court order to a higher court. Therefore, a Mental Health Tribunal decision is a first instance decision.
The Mental Health Tribunal fulfils a judicial function and those attending a tribunal hearing should understand that they are attending what is essentially a court hearing. The apparent informal nature of a Mental Health Tribunal hearing can sometimes lead attendees, including professionals, to forget the judicial nature of the process. However, the informal nature of the hearing is solely for the benefit of the patient; to put them at ease and facilitate their participation. A legal professional will assist the panel far better when they keep its judicial function at the forefront of their mind. The burden of proof is on the Responsible Authority and the panel must weigh up the evidence and make findings of fact, on the balance of probabilities, and then apply the law to those facts. These core fundamentals should not be lost in the midst of the perceived informality of the process.
A Mental Health Tribunal three-person panel comprises a legally-trained judge (often a senior and experienced barrister or solicitor); a medical member, who will be a consultant psychiatrist (practising or retired); and a specialist member. The specialist member (sometimes referred to as the ‘lay member’, but undoubtedly more appropriately referred to as a ‘specialist’) can come from a variety of backgrounds, but predominately will have a social care background.
The Tribunal Rules stipulate that hearings are to be held in private, unless ordered otherwise and that it is in the patient’s interests or the interests of justice for it to be held in public. This is due to the highly private and confidential nature of the patient’s medical information being discussed, and it is this that makes it so difficult for legal practitioners to gain any real insight into the hearing process.
Appointment & Training
Appointments to the Mental Health Tribunal are made by the Judicial Appointments Commission (JAC), which is an independent body set up in 2006 under the terms of the Constitutional Reform Act 2005. It advertises judicial vacancies, receives applications, and then assesses applicants against a series of ‘competencies’: the ability to assimilate and clarify information; to work with others; to exercise judgement; to possess and build knowledge; to manage work efficiently; and to communicate effectively.
The process to become a Mental Health Tribunal judge is the same process through which court judges are appointed. It is a long and arduous year-long process which involves a written application, online exams, references, and a ‘selection day’ which includes role plays and an interview. At present, applicants cannot specifically elect to be appointed to the Mental Health Tribunal but are asked to rank their order of preference between the various tribunals (which include Immigration & Asylum, Tax, and Social Entitlement). Successful applicants are then notified of the chamber and jurisdiction to which they will be deployed.
The majority of Mental Health Tribunal judges sit part time as ‘fee-paid’ members and are paid a daily fee rather than a full-time salary. There is a group of full-time salaried Mental Health Tribunal judges in England who are appointed from the fee-paid ranks and take on more senior responsibilities.
Medical members and specialist members are also appointed by the JAC through similar processes.
Training is provided by the Judicial College and includes initial intensive on-boarding, followed by yearly minimum training updates. All panel members are also regularly appraised.
Jurisdiction
The Mental Health Tribunal’s powers derive from the Mental Health Act 1959 which established the Mental Health Review Tribunal. Subsequent amendments were made by the Mental Health Acts 1983 and 2007.
In England, the tribunal is now referred to as the Mental Health Tribunal, but it remains as the Mental Health Review Tribunal in Wales. The Health, Education and Social Care Chamber does not encompass the Welsh Mental Health Review Tribunal, which operates via s.65 of the Mental Health Act 1983. The Welsh tribunal’s procedure is governed by the Mental Health Review Tribunal for Wales Rules 2008. The Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 govern the English Mental Health Tribunal.
Prior to the Tribunals, Courts and Enforcement Act 2007, the only means to challenge a decision of the Mental Health Tribunal was by way of judicial review. Since the 2007 Act, a tribunal judge can set aside a decision if there is a clear error of law, and can grant permission to appeal to the Upper Tribunal. The Upper Tribunal hears appeals from both the Mental Health Tribunal and the Mental Health Review Tribunal.
The inquisitorial nature of the Mental Health Tribunal
Whilst the function of the Mental Health Tribunal is judicial in nature, proceedings are generally ‘inquisitorial’ as opposed to ‘adversarial’. In court proceedings, the process is adversarial with two (or more) opposed sides, often legally represented, setting out their respective cases and the judge applying strict rules of evidence and procedure throughout. Sanctions can be as severe as having an entire claim struck out for lack of compliance with those rules or for breaches of previous court orders. In an ‘inquisitorial’ hearing, the panel can be more proactive in asking questions and apply a greater degree of flexibility to managing the process. The Mental Health Tribunal will go well out of its way to afford the patient a fair hearing. Legal representatives who are used to appearing in court and who might not have encountered an inquisitorial process before, should adapt their approach accordingly. A combative approach will not be well received by a tribunal panel, and almost certainly would not be in the best interests of the patient.
As well as a non-combative approach, the inquisitorial nature of the Mental Health Tribunal means that the strict rules of evidence do not apply as they would in court. The patient does not need to provide any form of pre-disclosed written statement; they can say what they like on the day. Evidence before the tribunal is often, by its very nature, full of hearsay (taken from previous records, notes and other professionals’ reports), and fresh information can be sprung on a legal representative mid-hearing in a manner that a court-seasoned practitioner might describe as being ‘ambushed’. Tribunals can take short breaks to enable a witness to go and find something out, if deemed necessary. Legal practitioners must learn very quickly that a Mental Health Tribunal hearing is far more collaborative than it is combative.
The Code of Practice & the Guiding Principles
Section 18 of the Mental Health Act 1983 requires the Secretary of State (and Welsh equivalent) to establish a Code of Practice which must embody a set of ‘guiding principles’. It is vital for any legal practitioner working in the area of mental health law to be familiar with both the Code and the guiding principles, which are set out as follows:
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Least restrictive option and maximising independence where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. Wherever possible a patient’s independence should be encouraged and supported with a focus on promoting recovery.
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Empowerment and involvement patients should be fully involved in decisions about care, support and treatment. The views of families, carers and others, if appropriate, should be fully considered when taking decisions. Where decisions are taken which are contradictory to views expressed, professionals should explain the reasons for this.
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Respect and dignity patients, their families and carers should be treated with respect and dignity and listened to by professionals.
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Purpose and effectiveness decisions about care and treatment should be appropriate to the patient, with clear therapeutic aims, promote recovery and should be performed to current national guidelines and/or current available best practice guidelines.
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Efficiency and equity providers, commissioners and other relevant organisations should work together to ensure that the quality of commissioning and provision of mental healthcare services are of high quality and are given equal priority to physical health and social care services. All relevant services should work together to facilitate timely, safe and supportive discharge from detention.
The Code of Practice applies to medical practitioners, approved clinicians, hospital managers and hospital staff in relation to the admission of patients to hospital, as well as to Guardianship and Community Treatment Orders. It applies to doctors and other professionals providing medical treatment to patients suffering from a mental disorder, as well as to patients who are in hospital informally, or indeed not in hospital at all.
SUMMARY
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The Mental Health Tribunal acts as an independent ‘check and balance’ on the powers arising out of the Mental Health Act 1983.
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Almost all patients subject to the powers of the Act are entitled to appeal against their section.
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The Judicial Appointments Commission is in charge of appointing those who sit on the Mental Health Tribunal panels.
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The Mental Health Tribunal’s jurisdiction derives from the Mental Health Act 1959 (as amended), and the Tribunal’s procedure is governed by the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, and Welsh equivalent.
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The process is inquisitorial rather than adversarial.
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The Upper Tribunal hears appeals from the Mental Health Tribunal and the Mental Health Review Tribunal in Wales.
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The Code of Practice and guiding principles are essential reading for all practitioners in mental health law.