New plans to alter tribunal safeguards under fire

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.