Systematic Review of the Mental Health Review Tribunal

A Systematic Review of the Mental Health Review Tribunal: Processes, Roles and Impact

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1. What is the Mental Health Review Tribunal?

The Mental Health Review Tribunal is a collection of independent judicial bodies that aim to review the cases of suitable applicant patients who have been appropriately detained under the Mental Health Act 1983[1]. Following strict guidelines and statutory criteria for discharge, collectively, members of the tribunal have the power to direct the discharge of applicant patients who satisfy the relevant discharge criteria. According to the official website of the tribunal (Mental Health Review Tribunal[2]), its other principal powers are:

To recommend leave of absence from employment or school as appropriate
To recommend supervised discharge
To recommend transfer to other hospital or relevant health care professional
To issue directions regarding procedural matters
To reconvene if any of their recommendations from a past Tribunal hearing is not complied with

In general, the Mental Health Review Tribunal serves as a safeguard against wrongful admission or unwarrantedly long detention (Wood, 1993[3]). As such, they give detained patients access to an effective appeal mechanism in order to ensure, as far as possible, legal protection of their liberty. All this is carried out in accordance with the Human Acts Right.

There are five Tribunal offices in the United Kingdom (Mental Health Act 1983; Memorandum on Part V[4]). Each region in England is operated under a separate MHRT and a separate Tribunal covers the whole of the country of Wales. Accordingly, there are five Tribunal offices that provide administrative support to the respective MHRTs.

The MHRT operates under the provisions of the Mental Health Act 1983 and the Mental Health Review Tribunal Rules 1983 (Her Majesty’s Stationery Office, 1983[5]). The powers and duties of the Tribunals are as set out by the Mental Act 1983, subsequently amended in the ensuing policy document, the Mental Health (Patients in Community) Act 1995. The actual Tribunal process usually takes place in the hospital where the applicant patient is being retained, and is usually held in private, unless otherwise agreed by the patient in question and the members of the Tribunal.

The actual processes and review procedures of the Tribunal are defined in the Mental Health Review Tribunal Rules 1983 (Her Majesty’s Stationery Office, 1983); similarly, this has also been amended to a more current version.

Tribunal procedures and deliberations should always be carried out in accordance with the principles of the statutory instrument and the principles in which the other subgroups operate when considering Definitions, Guardianship and the Mental Health Commission under the Mental Health Act. These include:

Respect for diversity
Respect for carers
Least restrictive alternative and informality
Respect for rights

All patients that have been detained under the Mental Health Act 1983 or that are eligible for guardianship or supervised post-discharge care have the fundamental right to appeal, i.e. to apply for a review by submitting an application to the Mental Health Review Tribunal, within the specified time limits as specified in the Mental Health Act. Furthermore, in order to ensure regular reviews of all cases, if the patient fails to make such an application the Tribunal, the appropriate body or personnel is obliged to make a referral of the case to the appropriate regional Tribunal. The party responsible for making this mandatory referral differs for various patients and depends on the restriction status of the patient (discussed further in section on types of patients):

In the case of restricted patients, it is the responsibility of the Secretary of State for Justice to refer the case to the Tribunal
In the case of non restricted patients, the onus falls on the hospital managers

In a review of Representing the mentally ill and handicapped (Gostin and Rassaby, 1980[6]), the authors who are incidentally representatives of the National Association for Mental Health (MIND), highlights the unmet need for legal representation for applicant patients at Tribunal hearings of over 20,000 patients annually. However, as pointed out by John Hamilton (1980)[7] of the Royal College of Psychiatrists, 90% of these patients are, in fact, on short term detention orders and remain as informal patients after the expiry of the said order. In fact, a great majority of patients are compulsorily detained only for very short period of times and (from 72 hours to 28 days) and may not be eligible for a review process during that limited amount of time (Rollins, 1980[8]). As a result, the informal status of the applicant patient is very important because most of the hospitalised mental health patients in England and Wales are informal (Andoh, 2000[9]). Thus applying one safeguard provided in the Mental Health Act 1983, less than 10% of mental health patients who are compulsorily detained have a statutory right of appeal from an independent Mental Health Review Tribunal.

In Gostin’s replying correspondence (1980[10]), he revisits the Percy Commission, and emphasises the glaring discrepancies in expected and actual rates of Tribunal hearings. According to Gostin (1980), the Percy Commission envisioned that there would be approximately 8000­ – 9000 Tribunal hearing every year. However, in reality, there norm is a figure of about 750, with the maximum ever annual rate being 1515 hearings. As a consequence, most Tribunal members hear only one or two cases each year and thus do not have the opportunity to garner experience and familiarity with a diverse breadth of cases that would have been beneficial to improve future judgements. In the past two decades though, there has been a major increase in the number of applicants to the Tribunals (Crossley, 2004[11]). In fact, as reported by Blumenthal and Wessely in 1994[12], applications to the Tribunal rose dramatically in the 10 years between 1983 and 1993, with the figure approaching 10,000, i.e. almost a three-fold increase since 1984 and costing approximately 12 million pounds (?).

2. Mental Health Legislation

Mental health legislation in the Commonwealth countries is changing in some common law jurisdictions (Carney 2007[13]). There is an increasing debate on whether it is, in fact, a health or legal issue and certain schools of thought question the need for special legislation in the present day. There is controversy over the non-therapeutic nature of criminal law, especially in its sentencing and penological aspects; can the inherent workings of law ever be adjusted to incorporate the perspective of therapeutic jurisprudence (McGuire, 2000[14])? Furthermore, some critics also question the beneficial role of Tribunals or legal adjudication of the detention requirements. The very fact that the term ‘detention’ is used to describe the process of admission of these often vulnerable patients is probably evidence of the need for legal contribution. As mental health patients are frequently prone to violence and can be considered a risk to the public and themselves, it is evident that both disciplines of health and the law need to collaborate to achieve optimal long-term management of this population.

2.1 The Mental Health Act 1983

The Mental Health Act 1983 provides legislative guidance for the compulsory ambulatory assessment, care and treatment (i.e. the overall management in hospital) of patients with a mental disorder. In the Mental Health Act document mental disorder is defined as “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”. As an amendment from the Mental Health Act 1959, the 1983 policy document requires that in order for a patient to fall within the criteria for ‘severe mental impairment’ or ‘mental impairment’, the patient in question has to be associated with abnormally aggressive or seriously irresponsible behaviour (Singh, 1984[15]). This definition excludes an appreciable amount of severely impaired or impaired mental health patients that are neither ‘abnormally aggressive’ nor ‘seriously irresponsible’, and thus these equally vulnerable patients remain unprotected under the amended Mental Health Act 1983.

Thus it would appear that the definitions of, under the Mental Health Act 1959, of severe mental subnormality and mental subnormality would be more considerate and fair towards such patients, as it certainly encompassed in the definition the vulnerability of this mental health patient population (Singh, 1984). In part, the Act states that, ‘severe subnormality being of such a nature or degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation or will be incapable when of an age to do so,” and in the case of mental subnormality “of a nature or degree which requires or is susceptible to medical treatment or other special care or training of the patients’.

Thus the recommendations outlined herein in this document apply not only to patients suffering from ‘more violent mental disorders’, but also vulnerable patients who may find it difficult to express their various needs, or who in some extreme, cases, may not even recognise that they need specialist help. It has been proposed that mental health should be given the same priority as physical health (Kmietowicz, 2005[16]). Application of the 1983 Act should also take into consideration exclusions from the definition of ‘mental health’, as set out in Section 1 (3) of the Act. This section of the policy document states that a person should not be treated under the provisions of the Act, if they are suffering from mental disorder purely by reason of promiscuity, other moral conduct, sexual deviance or substance misuse, including dependence on alcohol or drugs. However, the Act recognises that such behavioural problems as listed above may be accompanied by, or associated with, mental disorder, and as such should be overlooked in its entirety.

Real life experience apparently shows that the Act is usually fully implemented with appropriate communication and collaboration between the various disciplines involved (Ourashi and Shaw, 2008[17]). A recent of judicial practice and assessment of risk to the public in detained individuals, based on Sections 37/41 of the Act, showed that, in addition to the primary need to protect the public, an additional and almost equally important intention was to ensure compliance with both after-care services and medication. In the study sample, which was made of 12 judges from crown courts in England, it was found that restriction orders were rarely made contrary to the recommendations of the affiliated medical practitioner.

It is worthy of note to consider that the recent Mental Health Act of 2007 have introduced some important modifications to core recommendations and standard roles and responsibilities of mental health practitioners (Kousoulou, 2008[18]). These amendments perhaps gain even more importance when we consider the revolutions that have occurred in psychiatry since the original Mental Health Act 1983 was implemented. Of particular importance, is the notion in 1983, that there was no link between mental illness and violence which has now since been proved invalid (Monahan 1992[19]). From October this year (2008), the Mental Health Act 2007 will be fully implemented in the procedures associated with the Mental Health Review Tribunals.

2.2 The Mental Health Act 2007

Amendments to the 1983 Mental Health Act policy document in the Mental Health Act 2007, which are directly related to any aspect of process of the Mental Health Review Tribunal and outlined topline below (Office of Public Sector Information, 2007[20]):

Removal of categories of mental disorder: the key definition of ‘mental disorder’ is amended from that which is outlined in Section 1 (2) of the 1983 Act. For the definition of ‘mental disorder’ and mentally disordered’, substitute ‘mental disorder’ means any disorder or disability of the mind; and ‘mentally disordered’ shall be construed accordingly’. In addition the following statements are omitted in the recent amended version:
Those of ‘severe mental impairment’ and ‘severely mentally impaired’
Those of ‘mental impairment’ and ‘mentally impaired’
That of ‘psychopathic disorder’
Amendments to the section on the Mental Health Review Tribunal include specific issues related to:
Patients absent without leave
Duty of hospital managers to refer cases to the Tribunal
Power to reduce periods under Section 68
Restriction orders: in relation to restricted patients
Conditionally discharged patients subject to limitation directions

2.3 The importance of making the right decision

There have been reported cases of mental health patients who commit suicide within a mere 12 months of contact with mental health services. For example, in a national clinical survey that was carried out in England and Wales, over 2,000 mentally impaired suicide victims had had previous contact with mental healthy services in the year before (Appleby et al, 1999[21]). A review by mental health teams concluded that suicide could have been prevented in more than 20% of these cases. In conclusion, the researchers made logical recommendations for suicide prevention measures in mental health services, including strategies to improve compliance and sustain contact with the appropriate mental health services. In addition, there is also the additional threat to the innocent people of the public.

The perceived threat of mentally disordered patients, who have been released from detention, to the public has been explored severally (Norris, 1984[22]; Buchanan, 1998[23]; Jamieson and Taylor, 2002[24]). In fact, several years ago, in New Zealand, there was a controversial case of a mental health patient who committed murder six hours after being released from detention (Zinn, 2003[25]). Interestingly, the said patient was found not guilty of the murder by reason of mental illness. Furthermore, the patient was awarded compensation of the value of ?300,000 after he sued the health authority for failing to detain him as an involuntary patient under the Mental Health Act. As such, it is evident that there are many incentives here for ensuring that the right intervention is applied to the right patient.

3. Members of the Tribunal: The Relevant Stakeholders

Essential members who must be present at each Tribunal hearing are (Mental Health Review Tribunals website) include:

The regional chairmen
A legal member
A medical member, and
A lay member

For each geographic region, the Lord Chancellor makes appointments and decides who sits on the different panels. For the other members other than the legal member (i.e. the medical and lay members), the Secretary of State for Health, for cases in England, and the Secretary of State for Wales, for cases in Wales, are also consulted in the decision making process.

Each member has a specific and individual role in the co-ordination of the Tribunal hearing. In addition to the essential Tribunal members outlined above, there are other stakeholders involved in the long-term process of the review process. These could be private non-governmental organisations, such as the National Association for Mental Health (MIND). Whether these members are salaried or not is usually discretionary, but the norm is that there is no salary payable, but that members receive an attendance fee and travel and subsistence allowance. On the contrary, the Tribunal chairman is a salaried role.

3.1 Role of the regional chairman

A regional chairman is appointed for each of the two Tribunal regions in England: the North Region and the South Region, which are conveniently based in Manchester and London, respectively. The roles of the regional chairman of the Tribunal are multi-factorial and include (Mental Health Review Tribunals website):

The regional chairman appoints specific members to particular Tribunal hearings
The regional chairman has the responsibility of ensuring that all the statutory requirements are complied with, making judicial decisions and giving necessary direction a timely and fair decision is reached in each and every case
The regional member is also responsible for organising training for the members of the Tribunal to ensure that all members have the updated skills and knowledge that would be necessary to effectively carry out their individual roles
It is the role of the regional member to oversee the appraisal mentoring scheme of the members of the Tribunal, thus highlighting training needs (see point above) to continually improve the review process
The onus also falls upon the regional chairman to handle any complaints about the conduct of any members of the Tribunal, or to refer the case to higher authorities if warranted

3.2 Role of the legal member

The legal member, more often than not, presides over the Tribunal hearings. Legal members of the Tribunal are usually elected or appointed on the basis of their specific expertise in the particular area of jurisdiction (Ferres, 2007[26]). They are required to “have such legal experience, as the Lord Chancellor considers suitable” (Department for Constitutional Affairs, DCA[27]). In addition, interpersonal skills and a good understanding of the health system are crucial as fundamental qualifications of the Tribunal legal member. The official website of the Mental Health Review Tribunal provides relevant specific information on the requirements of becoming a legal member and outlines the roles of the legal members as:

The legal member acts as President of the Tribunal. Revisiting the primary role of the MHRT, which is to review the legality of the applicant patient’s detention in hospital and to direct the discharge of those to whom the statutory discharge criteria apply; and to safeguard the patient’s fundamental human right to be free from unjustified hospital detention (Richardson and Machin, 1999[28]), it is evident that this process is essential a legal one. It is thus only logical that the Tribunal be presided over by a member of the legal profession.
In addition, the legal member of the Tribunal has the responsibility to ensure that the proceedings of the review process are carried out in a fair and balanced manner.
The legal member is also responsible for ensuring that the legal requirements of the Mental Health Act are properly observed
The legal member of the Tribunal also has the role of advising and addressing any questions of law which may arise before the hearing, during the hearing and during the deliberation discussions with the other members of the Tribunal
In collaboration with the medical member and the lay member of the Tribunal, the legal member is also responsible for drafting the reasons for the reached decision, and for endorsing the record of the agreed decision

One of the major that the legal members of the Tribunal face is the danger that the medical member could dominate what must essentially be a legal process (Peay, 1989[29]).

3.3 Role of the medical member

As stated above, a medical practitioner is one of the necessary members of the Tribunal and their role, though clearly invaluable, is fraught with opposing views from the multidisciplinary stakeholders in the field. In 2000, Gibson[30] proposed that the role of the medical member was introduced in the 1959 Act to make the process of medical notes review less arduous “without ruffling medical feathers”. However, according to Prins (2000[31]), the origin of the required disciplines to sit in Tribunal hearings is much more complex than that, as there were conflicting views that arose during the parliamentary debates leading up to the 1959 Act, as to who was best suited to make that all-important decision regarding the patients’ release or continued detention. It is worthy of note, here, that in those early legislative days, the commonplace law was one which involved a purely judicial decision, which probably explains the disinclination to acknowledge the need for a medical aspect in the decision making process.

The medical member could be the patient’s treating psychiatrist, a nurse or any other member of the mental health team. According to the Mental Health Review Tribunal website (Mental Health Review Tribunal), the medical member is customarily a consultant psychiatrist with several years of extensive experience who is able to advise other members of the Tribunal on any relevant medical matters that should be taken into consideration in the patient’s review.

There is evidence that the dual role that is expected of medical practitioners on the Tribunal is a potential barrier to having the fairly balanced and effective hearing that is the main objective of the review or appeal process. As with the legal member and all other members of the Tribunal board, interpersonal skills and a good understanding of the relevant health system are important for all Tribunal members (Ferres, 2007). In addition to this fundamental criterion, Ferres (2007) emphasises the dilemma that is brought upon the medical member as a direct consequence of his/her role as a medical practitioner and a sitting as part of the Tribunal.

According to the official website of the Mental Health Review Tribunal (Mental Health Review Tribunal), the basic roles of the medical member of the Tribunal can be categorised as outlined below:

Medical role: this member is required to carry out an examination of the patient before the hearing and, in so doing, make any necessary interventions – or simply make any necessary steps – that could potentially aid the decision making process in forming an opinion of the patient’s mental health condition. This is clearly in accordance with Rule 11 of the Mental Health Review Tribunal Rules (Her Majesty’s Stationery Office, 1983), which requires the medical member of the Tribunal to “at any time before the hearing…examine the patient and take such other steps as he (or she) considers necessary to form an opinion of the patient’s mental condition”.
Judicial role: the medical member, together with the other members of the Tribunal, have a judicial responsibility to decide the patient’s fate, in terms of if the patient could still represent a danger to self or others and should thus remain in detention, or if the patient is suitably fit to be released into the public domain.

Researchers in the past have shown that the duality of their roles on the Tribunal need not lead to knowledge bias, which could cause a flawed opinion (Langley 1990[32]; Brockman B; 1993[33]). However, in drastic contradiction to this, some more recent opinions expressed by critical schools of thought believe that the dual nature of the expected medical member’s role is a possible barrier to open-mindedness (Gibson, 2000; Richardson and Machin, 2000[34]). The, somewhat logical, fear is that doctors’ judicial opinions of patients’ eligibility for release would undoubtedly be swayed by findings from their preliminary observations and assessments. Apparently, for the review process to be carried out fairly, medical members of the Tribunal should strive to make their decisions based only on reports, evidence and witness and patient reports that presented to them during the Tribunal hearing. As such, any details divulged by the patient prior to the Tribunal hearing should not be considered as evidence and must not be taken into account. Similar to this notion, the Law Reform Committee, in 1967, recommended that a doctor should not be compelled to give evidence of issues that he may have had access to with the patient that have no bearing on the patient’s mental or physical health (Law Reform Committee, 1967[35]).

Putting it logically, general human nature may well be a barrier to such sentiments. Having conducted an examination of the applicant patient, and presumably consequently forming a clinical opinion, the medical member of the Tribunal is expected to morph into a decision making member to attend the review hearing. As the Council of Tribunals have very aptly described it, the medical member is “effectively a witness and a member of the Tribunal, deciding the validity of his own evidence” (Council on Tribunals, 1983, paragraph 322[36]). The unanswered question, thus, is: how can the medical member be expected to detach his previous medical knowledge of the said patient from evidence that is presented in the Tribunal and remain objective in his opinions and, if this distinction is necessary, does the inherent benefit of the preliminary assessment then become invalid? These questions also corroborate the idea of the protection of the doctor’s professional confidence unavoidably conflicting with the interest of justice (No authors listed, 1967[37]).

However, in his correspondence to the editor of the British Journal of Psychiatry, Gibson (2000) stresses the inherent advantages of the preliminary examination prior to the Tribunal hearing. The main benefits are outlined below:

The preliminary examination session gives the medical member a chance to review the applicant patients’ clinical notes which may contain crucial data and clinical findings that are omitted from the reports
The preliminary examination session also prepares the medical member to ask the most appropriate questions at the hearing, thus ensuring that the benefits of the review process is optimised

Furthermore, Gibson (2000) has suggested that, in order to eliminate the potential prejudice that could accrue from the preliminary assessment and the associated disadvantage of the often time consuming nature, that the applicant patients’ notes should be made available to all of the Tribunal members in the half hour before the Tribunal hearing is scheduled to take place, thus dispensing with the need for the historical preliminary examination. The limitations of this proposal, as succinctly put forward by Prins (2000) are two fold:

As we all know from our practical clinical experience, in many cases, medical notes are too voluminous and complex to do a proper review in half an hour. In some cases, it would take days to form an understanding of the contents of such files.
Also, the feasibility of medical notes review by all members of the Tribunal is doubtful. Without a certain degree of medical expertise, it would be near impossible for the two non-medical members of the Tribunal to comprehend the contents of the applicant’s patients’ medical notes. This would then necessitate the additional step of medical interpretation for the benefit of these members, leading to longer duration of the review process, and thus, increased costs and burden on the health system.

3.4 Role of the lay member

According to the official Mental Health Review Tribunal website, the lay member of the Tribunal serves to provide some form of balance to the Tribunal as a representative of the community outside the dominating, and often clashing, legal and medical professions. Normally lay members would have a background or practical experience of working in the health and welfare field in the National Health Service, voluntary organisations or private health sector. The lay member may also be experienced in social services on administration (Lodge, 2005[38]).

4. Other stakeholders involved in the Mental Health Review Tribunal

4.1 Legal representation for the mental health patient

In addition to the legal member of the board, legal representation is usually advised for the patient. A legal representative can be useful to explain the law to the patient and help to protect his or her best interests (Mental Health Review Tribunal website). As a matter of circumstances, the mental health patient’s handicap or mental illness, coupled with the possible effects of having been institutionalised and various antipsychotic medications, make self-advocacy invariably difficult (Gostin, 1980).

These patients do, however, have the right to choose to represent themselves; nevertheless, this option is not advisable. Furthermore, Larry Gostin of the National Association for Mental Health (MIND), in London, goes on to convincingly justify the need for legal representation for the mental health patient. Patients who attend the Tribunal without legal representation are frequently denied access to the full reasons for his confinement and subsequent decision, and medical and social reports pertaining to his or her case may be withheld from the patient as confidential (Gostin, 1980). When a legal representative is involved and present during the hearing, he or she is party to all relevant documents and can share the information with the client (in this case, the mental health patient). Another even more important advantage of having legal representation is the ability of such a legal professional to examine provision in the community for housing, care and support.

Thus as highlighted above, the benefit of legal representation for the mental health patient in the Tribunal cannot be overemphasised. This calls to question the ethics of the preliminary examination session, during which the vulnerable mental health patient is examined by the medical member of the Tribunal towards forming an opinion of his or her ment

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