Tuesday, 27 September 2016

What Exactly is the Ministry of Justice Intending to Do with Mental Health Tribunals?

Almost everyone who is subject to a section of the Mental Health Act, including Sec.2, 3 & 4, Guardianship and Community Treatment Orders, is entitled to appeal against their detention.

Prior to the changes to the MHA made by the 2007 Act, the Mental Health Act Commission was responsible for arranging and overseeing these appeals. The 2007 Act, however, transferred this duty to the Ministry of Justice, and the Mental Health Tribunal became just one of the Tribunals in the First Tier system. These tribunals cover everything from employment issues to Social Security and Child Support.

A Mental Health Tribunal consists of a Judge, a consultant psychiatrist, and a specialist lay member, who is someone not a lawyer or a doctor but with a particular interest in mental health, such as a social worker or a nurse.  This ensures that there is a balanced perspective when assessing whether or not a detained patient should be discharged.

I have had mixed feelings about this transfer of responsibilities, not least because the now defunct Mental Health Act Commission kept useful statistics relating to what happened to people who appealed.

For example, in 2008, the last year that such records were kept, there were a total of 7295 tribunals. Of these, 967 patients were discharged, which amounts to 13% of all appeals.

However, in addition to this, 5862 patients who appealed were discharged by their psychiatrist prior to a hearing. In other words, it was clear that it was worth a patient appealing, as they would have a good chance of being discharged before the hearing simply because their psychiatrist either could not justify continued detention, or (Heaven forbid) could not be bothered to write a report. Even if the appeal did get to a hearing, they then had a 13% chance of being discharged.

Unfortunately, the Ministry of Justice does not keep such records, so we have no way of knowing this sort of information.

Anyway, the reason I am writing this blog is to highlight a document which has just been released by the Department of Justice, titled Transforming Our Justice System.

There are a lot of fine words in this document. It begins by boasting how wonderful our present justice system is, before stating:

“The transformation of the courts and tribunals across the country will be based on three core principles that build on its established strengths: Just, Proportionate, Accessible.”

It is also keen to save costs, and sees one of the ways of doing this as using technology to streamline the legal process.

It breezes through somewhat vague plans for the criminal and civil courts before reaching its plans for the Tribunal system, towards the end of the document’s brief 16 pages.

On the surface, there is nothing contentious about this section. It begins:

“Tribunals are an essential component of the rule of law. They enable citizens to hold the state and employers to account for decisions that have a significant impact on people’s lives. The hallmark of the tribunals system is the delivery of fair, specialist and innovative justice. That must not change.”

It is keen to adopt “a more inquisitorial and problem-solving approach, focused around the needs of individuals so that claimants can be more confident that their needs will be understood.”

It goes on to suggest that “Innovative ‘problem-solving’ opportunities will be created to improve the determination of a range of issues which have historically been spread across courts and tribunals. This ‘one stop shop’ approach is being piloted with property disputes which can be dealt with before one specialist Judge”.

And then it drops a bombshell: “The potential to extend this into other areas such as Mental Health and Employment will be explored.”

And that’s all. There is no detail as to exactly how these changes will come about.

But what the vision statement is saying is that the Ministry of Justice are seriously considering replacing the current Mental Health Tribunal, with its three members, with a single Judge.

They are actually thinking that it may be OK to dispose of the psychiatrist and the lay member.

In my view, the Tribunal psychiatrist has a very important role to play. They may be the only psychiatrist not employed by the NHS (or a private hospital) to interview and independently assess the patient. It is the patient’s only chance to put their views about detention to someone not involved in their treatment.

The lay member also has an important role to play, to explore the social dimension of the patient, and to provide a “lay”, if also expert, opinion.

Unless, like a Coroner, the Judge is qualified in both Law and Medicine, I find it hard to understand how a Judge alone can make the complex judgments required to reach a just conclusion in the absence of the other two Tribunal members.

I know it’s only mentioned in passing, that this statement is a mere outline, that there may be many changes before these proposals are initiated.

But we need to be on our guards, if we want the Mental Health Tribunal to continue to provide a check on the mental health system, and give detained patients a platform on which to be properly heard.


  1. I've been thru 2 Section 3 tribunals and they were the most terrifying thing I've had to do in my life. But I had to believe that these people would listen, be fair and know what they were doing. Glad I didn't know the odds before I went in for sure. Yes it could do with being less of an ordeal but an MHA is carried out by 3 people to make sure the decision is right and not one individual's opinion. On another note having been sectioned 2/3 x 8 it has often seemed like doing the paperwork for a tribunal is too much effort for a busy psychiatrist and I've known that and gambled on that :)

  2. I have just read the document and would share your concerns were the 2 other members of the Tribunal to be removed. However, they do refer to "judges and members" in the second paragraph of the section on Tribunals which acknowledges they know they are there and they say that they will explore the potential to extend the problem solving / one-stop approach to MHRTs. Hopefully there will be consultation before any decisions are made. One thing that does make them more accessible at present is the fact that they are help in the hospitals and in less formal settings too - in an ordinary room all sitting round a table together. There are no costly MHRT buildings to be got rid of. I appreciate that I have only been through them as a professional and I am sorry to read that the person commenting before me found the ones he / she attended terrifying. Hopefully service users' experiences and proposals will be sought before any changes - if this is an attempt to improve rather than just a cost cutting exercise.

    Guy Soulsby

  3. We could do away and with 3 people attending Hospital Managers meetings which are often a waste of time , both professionals as well as the person on Section. MHRT's are a crucial part of the mental health jigsaw and should be strengthened and improved not weakened in any way.

  4. In case my last comment may be misunderstood...strengthened by making hospitals, Drs and professionals more accountable...and made easier to attend and more "user-friendly" for those seeking appeal.

  5. Hi a very useful post. However I do not think it is accurate to include Section 4.
    Patients subject to Section can appeal but if the 4 is not converted by a second Mec into a Section 2. then the appeal will lapse. (Mental Health Act Manual R. Jones 18th Edition para 1-073.).Alex Davis

  6. I include sec.4 because it is included in the MHA as a section you can appeal. I teach this on an AMHP course, as it is very unlikely but legally possible.

  7. Firstly, I have stats for Tribunals for the year 2011-12 (so 2008 was not the last year they were produced).
    Secondly, I believe the proposals are to introduce 'paper reviews' by one judge for SOME cases, not to do away with 3-person panels altogether.
    Thirdly I disagree with one comment that Managers Hearings serve no purpose, and I posted my reasons to the mentalhealthlawonline e-mail forum recently.
    Ronnie, MHAA

    1. I have seen MoJ stats, but they're not as useful as MHAC stats. If you have MHAC type stats ;ost 2008, I'd love to see them. Could you email me?

  8. I work as a Tribunal Clerk. I share views that to do away with the 3 Panel Members system would undermine the the process by weakening the different independent perspectives which help balance the evidence. More than that though, the very process of having key players brought together for a meeting adds value. To do away with physical meetings; and run a paper exercise; would save money in many respects. However, it sometimes seems to me it's only because of the judicial nature of the meeting that half of the people supposed to be working with/for the Patient actually take time to sit with him/her or each other! A lot more seems to be done in the waiting room when people are forced together than from going through their separate offices to connect. It would be very interesting if, as part of the consultation etc process, they applied the current system to several cases and a new single member hearing/reading and see if they came up with the same judgement.

    1. A really interesting comment. Thank you.

    2. You are welcome. I have the luxury of observing in my role as Clerk, without any of the responsibility for making decisions. I also have the misfortune of seeing areas n my limited view of waste. I'd love to see the process fully process mapped as it' astounding how the different parties don't seem to tie up with each other. Be that by way of human efforts or computer systems not being able to work together. It's sad that it comes across at times the Tribunal is an inconvenience rather than an opportunity to get, in effect, a 2nd opinion and a better measure of what the Patient may be going out to if he/she is discharged.