Mental Health Review Tribunals (MHRTs) were established under the Mental Health Act (MHA) 1959 as one of the "main safeguards against improper admission under compulsory powers" and "unduly protracted detention".
Several decades later a new tribunal is proposed: the Mental Health Tribunal. It will have a new remit and new composition but will it fare better than its predecessor?
Evidence from a study funded by the Department of Health on Mental Health Review Tribunals (MHRTs) suggests that changes to the legislation will not on their own improve decision-making.
The research identified significant differences in operation between tribunals. Four factors were found to constrain the fairness of tribunal decision-making. These were (i) tribunal structures and procedures; (ii) the legislation, and in particular the section 72 criteria for discharge; (iii) the actual process of decision-making; (iv) training.
MHRTs should be conducted in accordance with the basic principles of natural justice; notably the patient has a right to be heard and the proceedings should be fair. In all of the observed tribunals patients were provided with the opportunity to present their case. Without exception they were dealt with in a sympathetic and caring manner.
It is in relation to fairness that tribunals may be criticised. There are a number of aspects of the tribunal procedure which, when taken together, raise concerns about fairness. Perhaps, most notably, the role of the medical member both as a fact finder and a decision-maker is highly problematic. The legal and lay members rely on the clinical judgement of the medical member for interpretation of the statutory criteria. How, and when, this independent view is disclosed is extremely important. In this study, the medical member frequently disregarded what the MHRT Guide for Members (1996) suggests is good practice, by giving a direct opinion on the patient's suitability for discharge prior to the hearing. In some cases this extended to instructing other members on how to interpret the replies that the patient would give in the hearing.
One of the major challenges to fairness arose from the complex wording of the legislation with which tribunals struggled. As a consequence tribunal members varied in their use and interpretation of the statutory criteria for discharge. Although clinical evidence is crucial to the decision-making process, it has to be considered within the legal framework provided by the section 72 criteria for discharge. Both in the observations and in the interviews tribunal members grappled with a range of possible interpretations of these criteria and in practice frequently substituted more tangible criteria. Four criteria were consistently used as proxies for the section 72 criteria. These were the presence or absence of (i) symptoms, (ii) insight, (iii) compliance and co-operation and (iv) risk and danger to the patient and other people.
Future Decision-Making
The Draft Mental Health Bill would make some significant changes to the operation of tribunals: (i) Most notably a more coherent pathway through the process of compulsory detention; (ii) the removal of the medical member role as a fact finder and decision maker; (iii) the European Convention compliance requirement that the clinical supervisor makes a case for detention rather than the onus being on the patient to prove that the criteria for discharge are satisfied; (iv) allowing evidence from the patient to be presented alongside that of the medical experts, and; (v) more flexible powers in relation to the care and management of the patient under compulsion as long as the conditions for compulsion continue to exist.
There must, however, be concerns that new tensions may emerge as a result of creating a tribunal, which is responsible for both authorising and reviewing compulsory care and treatment. Furthermore the extent to which the new panel of experts will draw upon the current pool of mental health review tribunal members is not known. Clearly, if the membership does not change, there may be a danger that the flaws of the mental health review tribunal persist in the new tribunal. The criteria to be considered by the tribunal in determining the need for compulsory care continue to centre on two concepts - the 'nature' or 'degree' of mental disorder - which tribunal members under the 1983 Act found difficult to interpret and apply. Unless some work is done to clarify these concepts and provide operational definitions the same problems with inconsistent interpretations will apply.
From MHRT study it is clear that good decision-making and due process should go hand in hand. This includes recognising the importance of the nature and type of evidence presented to tribunals and the criteria they are asked to apply to that evidence. To interpret the evidence, members need good research evidence on diagnostic and treatment pathways, and on risk and the prediction of violence. They also need clear operational definitions against which they can examine the evidence; and they need the time and resources to examine properly and weigh the evidence that they hear. They need opportunities to meet and discuss cases and they need constructive feedback on the factors they are taking into account. These cannot be legislated for, but are vital if the new mental health tribunal is to perform better than its predecessor.
Dr Elizabeth Perkins is the Director of the Health and Community Care Research Unit (HaCCRU) at the University of Liverpool and author of Decision-making in Mental Health Review Tribunals, published by Policy Studies Institute, www.psi.org.uk
