Missing reports, absent tribunal members and a defective database – the Mental Health Review Tribunal secretariat is, according to many, in meltdown
Now there are fears the government may resort to desperate measures to implement its controversial draft Mental Health Bill, which could double the number of tribunal hearings to 40,000 a year and place more pressure on an already troubled system.
Although many measures within the draft legislation have been widely opposed amid predictions of an increase in the number of people detained, one element that has won support is the proposal to strengthen the tribunal as a safeguard (see panel).
But Community Care understands that the Department of Health is looking at new measures that would weaken that safeguard, including the introduction of paper-based tribunals that would replace oral hearings for so-called "uncontentious" cases and a fast-track system that would allow one or two people to make a decision about whether a patient should be released.
Professionals have condemned both proposals.
Law Society president Kevin Martin says: "We want urgent action to make the current mental health system work properly before the government even considers implementing the Mental Health Bill. This will require a significant increase in resources. The system is failing to deliver a reliable, professional service to tribunal service users."
However, he says it would be "wrong to lay all the blame on the under-resourced secretariat". He claims the system is "inherently complicated and unpredictable" and that tribunals face a "chronic shortage of medical members".
Busy mental health clinicians are often unable to submit reports on time and hearings are often cancelled or adjourned at the last minute, adds Martin.
Lawyer Peter Edwards says the government’s latest proposals smack of desperation and believes they are borne out of a realisation of the costs involved in implementing the plans.
"It has created a monster in the Mental Health Bill," he says. "The tribunal exists as an independent check against arbitrary and unlawful detentions. It acts as an independent court of law. It has a unique power among tribunals, which is the power to grant liberty."
He says it is vital for patients to "have their day in court" and rubbishes the idea that any case could be viewed as uncontentious from the outset. He says cases that may seem straightforward on paper could emerge as more complicated once the oral hearing starts. "I don’t think you can say any case is going to take a straightforward route," he warns.
The draft bill also proposes a widening of the tribunal’s remit to include decisions about care plans, rather than to solely determine whether someone should continue to be detained, as is the case now. It would also be impossible to make decisions on paper about issues such as medication, adds Edwards.
He believes the government needs to concentrate on improving the system that already exists. To begin with, the secretariat should be moved out of London to a place with a settled workforce. The problems within the administration of the system have not been helped by the high turnover of staff, he says.
Investment in "appropriate technology" would also help improve the system but Edwards sees no point in attempting to recreate the old regional system. "It is about having a fair process because people have been deprived of their liberty, mostly without having broken the law. There has to be a check mechanism and that has to be effective."
Opposition from professionals is not the only obstacle to the government’s proposals. The fast-track system is likely to be unworkable because every hospital would need a tribunal attached to it, while a paper-based system would contravene human rights legislation, which says people deprived of liberty are entitled to a fair hearing.
Mental Health Foundation chief executive Andrew McCulloch "cannot think of language strong enough" to describe his feelings on the idea of paper-based tribunals. "I would oppose any dilution of the 1983 act," he says. "The current bill is unworkable and these proposals are ludicrous. It would be gobsmacking if the government attempted to pull the rug out from beneath us by introducing this."
He believes that one way to boost the current system and solve the problem of shortages would be to expand the definition of people who can sit on tribunals, and that senior nurses and clinical psychologists should be considered as members.
Even if the government decides – with or without pressure from the sector – to abandon the proposals, it is left with the huge problem of how to improve the system and bolster its capacity. Ploughing money into it will not work. It needs to re-examine its administrative structure as well as look at who can sit on tribunals.
There are already doubts about whether the bill will be reintroduced into parliament because of the failure to resolve how tribunals will work. For all concerned an efficient and workable tribunal system is the linchpin of the new legislation. Without one that satisfies human rights legislation, as well as those working within mental health, the bill’s progression looks likely to be stalled for some time yet.
The Pressure Piles Up
Under the draft Mental Health Bill, the Mental Health Review Tribunal would be abolished and replaced by a Mental Health Tribunal for England and Wales. Its main function would be to provide legal authority for compulsory treatment beyond 28 days following applications by the clinical supervisor.
Its remit would be broadened to cover additional responsibilities, including deciding whether a person should be compulsorily detained.
The tribunal would need to apply for an order setting out where the patient was treated and how they would receive treatment. Hospital managers would have to ensure that the clinical supervisor makes an application to the tribunal for an order authorising treatment or further assessment within 28 days.
It would also decide on the individual’s care plan and issues such as whether to use electroconvulsive therapy. Currently, treatment can be decided by doctors.
People who are subject to a community treatment order – and estimates suggest this could run into the thousands – would also be entitled to a tribunal hearing.
Under the system now, doctors and approved social workers can approve treatment for more than 28 days and individuals must appeal against their decision. But under the proposed changes, people detained would automatically get a tribunal hearing once an application was made to treat them for longer.
These changes would make mental health law compliant with the European Convention on Human Rights, which allows for a fair hearing, a hearing before an independent tribunal and a hearing within a reasonable time.
But there are concerns that hospitals will be overwhelmed by applications for tribunals. Experts believe 28-day hearings might only work if there are dedicated hearing centres at hospitals with full-time administrative staff, a new IT system, extra legal, clinical and lay people, and enhanced provision of legal aid.
