Scottish Mental Health Tribunal – special report

When challenged about whether the Scottish Mental Health Tribunal has achieved its first year goals, its president Eileen Davie says it has exceeded her expectations.

“It has been a fantastically difficult task – we’ve had to build a whole administration from scratch – but I think we’re bang on track,” she says.

Set up in October 2005, the tribunal promised a new way of making decisions about the compulsory treatment of people with mental health problems. Whereas decision making used to be down to sheriffs sitting in court, under the tribunal system a three member panel with legal, medical and lay input decide the appropriate course of action.

Hearings are longer and more in-depth, timescales for decisions faster and the focus on rehabilitation greater.

Tribunals sitting in six locations across Scotland have held more than 3,000 hearings and dealt with 9,000 other non-hearing-related cases, such as compulsory detention order extension applications, over the past 12 months. This was the kind of volumes of work Davie was expecting, but she admits the complexity of the legislation that governs the tribunal has caused problems.

Unlike the English tribunal system, which only reviews existing orders, the Scottish tribunal has strict timescales for dealing with cases. A hearing must be organised within 28 days of a person being detained under the Mental Health Act and actually take place no later than five days after that.

Davie explains the timescales put extra pressure on the tribunal because often it doesn’t receive doctors’ assessments as to whether a patient needs compulsory treatment until a few days before the 28 days expires.

She explains: “We have to schedule a hearing, process the application and find tribunal members. It’s a huge amount of administration and there’s no breathing space but we can now do that within one day. We’ve missed the five-day deadline in only four cases.”

Despite this, Davie says the 28 day rule shouldn’t be extended and that doctors need as long as necessary to assess whether a person needs compulsory treatment.

“We shouldn’t detain a patient longer than 28 days without a hearing,” she adds.

Sandra McDougall, legal officer at the Scottish Association of Mental Health, agrees the system is making the tribunal’s life difficult.

“Applications [for hearings] could be made earlier but we don’t want to assume everyone on short-term detention needs to be put on a compulsory treatment order. It’s a fine balancing act.”

However, the tight timescales are causing problems when cases come before the tribunal. Lack of preparation time for legal teams representing detainees at hearings has resulted in a large number of interim compulsory treatment orders being issued, which means a second hearing must take place within 28 days.

This in turn means mental health officers and doctors are spending so long appearing at tribunals they are having to cut back the amount of time treating patients.

Last week, managers from Tayside, Ayrshire & Arran and Greater Glasgow health boards told the Scottish Parliament’s health committee the amount of time professionals were spending on tribunal work had been “far more than expected”.

David Hewitson, recent former chair of the British Association of Social Work Scotland’s Mental Health Officers Forum, says the number of interim compulsory orders issued by the tribunal had been “remarkably high”.

He said: “It is absolutely right that we should be quizzed but some tribunals can go into things in massive detail. The amount of time it is taking away from our ability to do our main jobs of helping people recover by working directly with patients is substantial.

“If a member of my team is spending this amount of extra time dealing with a statutory case the amount of time they have available to work with people is naturally reduced. Maybe some legislative changes need to be made to streamline some of the procedures.”

Davie says a Scottish executive working party is reviewing whether legislative changes are needed to speed up this part of the process.

“We’re working hard to get changes made: hopefully we’ll have a solution that will make things more streamlined, where solicitors are brought in at a stage where the applications are made to the tribunal and they can do work before the hearing.

“Having to keep coming back to the tribunal disrupts lots of professional lives and is very undesirable for the patient. It would be wonderful if we could sort that out by the end the year,” she adds.

Despite these problems, the tribunal has retained the backing of most mental health organisations and professionals in Scotland. “We’re still very much in favour of the system. There are some lessons to be learnt but that’s only natural,” says McDougall.

But if the first year seemed tough, the next promises to be every bit as challenging.

“This was an untypical year,” says Davie, “We are starting to receive appeals from patients about the level of security they are held in at Carstairs maximum security hospital and will be reviewing the cases of patients compulsorily detained for longer than two years.”