A reply to concerns over the fairness of the new mental health tribunals, and why the tribunals should be given a chance to show they can work

The article “Seen to be Fair” by Chris Turner (Journal, November 2005) raised a number of issues. It is a matter of considerable regret that any experienced mental health practitioner has decided to withdraw completely from such work, and for the reasons Mr Turner expresses. Practitioners experienced in this type of work are relatively few, although helpfully the Law Society of Scotland has a scheme of accreditation of mental health practitioners and those skilled in dealing with adults with incapacity.

It was particularly concerning to note Mr Turner’s anxieties expressed about legislation that came into effect only in October, and before the new processes have had time to become established. It is to be hoped that as the tribunal system gains maturity, any issues of concern to Mr Turner might at least be explored in the context of actual experience.

Mr Turner’s concerns appear to be twofold. First, he is concerned at the makeup of tribunals that include a nurse (drawn from community psychiatric nurses (CPNs) in particular) as well as a medical person who will always be a psychiatrist, to whom nurses professionally are, or are perceived by consumers of mental health services to be, deferential. His other concern is the departure from adversarial norms in the Mental Health Tribunal for Scotland (Practice and Procedure) (No 2) Rules 2005, particularly in the expectation of disclosure to the tribunal of an expert opinion obtained on behalf of the patient.

Tribunal members and decision-making

The Mental Health (Care and Treatment) (Scotland) Act 2003 requires that a psychiatrist sit on every tribunal. The qualifications for appointment, set by regulation, are “a medical practitioner and (a)... a member or fellow of the Royal College of Psychiatrists; or (b)… a minimum of four years whole time equivalent experience of providing psychiatric services”. In addition to the chair (who must have certain legal qualifications), there must be a general member, prescribed as someone who (a) has experience of a mental disorder and of using services provided in relation to mental disorder, or is a carer for such a person; (b) is a registered nurse with experience of providing such services; (c) is a chartered clinical psychologist; (d) is a recognised social worker with experience in this field; (e) is a registered occupational therapist with relevant experience; or (f) some other person employed in providing or managing a care service to persons having a mental disorder.

Mr Turner alludes to a point of principle that a general member should where possible come from an independent user or carer background, but only criterion (a) above covers this. However his concern is more that nurses (especially CPNs) are included at all, because of their actual or perceived professional subservience to doctors. Through the Mental Welfare Commission, and prior experience in practice as a patients’ representative and as a curator, I have considerable experience of dealing with all the categories of person envisaged by the regulation. On that experience it would be impossible to make the generalisation made by Mr Turner, since each person involved in delivery of care is an individual and the dynamics of their working and decision making vary enormously.

There may indeed be evidence (or at least a perception) within some multi-disciplinary teamworking that, when conflict arises in care planning and implementation, the word of the doctor will prevail. As Mr Turner notes, the doctor has a statutory duty in respect of the patient requiring compulsory measures of care which other professions do not share, and this may permit the doctor to “have the final say” in the treatment setting.. The nurse may be heavily involved in implementation of a care plan and it is not difficult to accept that a person in receipt of care may perceive the nurse in that situation to be an organ of imposed authority. However, so too may be the social worker or other professional involved in health or care contexts, whose interventions may be perceived by patients, not content with that plan of care, to be equally unwelcome to that of a CPN, and equally driven by the will of the psychiatrist.

Independence in practice

In the Mental Welfare Commission’s contact with nurses in both hospital and community settings, it is clear that many share a trust and confidence with patients of a far more positive nature than Mr Turner appears to have encountered in sheriff court hearings. It is frequently nurses who raise with the Commission issues about care planning, and holistic patient care. This is not necessarily because their views are not taken into account in the planning of care, but because they are present when the Commission visits patients and have the knowledge, confidence and breadth of experience to raise questions with the Commission direct. Whilst it is not appropriate for anyone to generalise, the picture that Mr Turner paints of the deferential nurse, resented by the patient, and without an independent voice in care decisions is simply not borne out in the generality of experience.

Furthermore Mr Turner makes the assumption that any deference that might be shown by nurse to doctor in the context of delivery of care will be carried over to the tribunal. This conflates the decisions that the tribunal must make with the decisions involved in day-to-day patient care. The statutory duty of doctors in care decisions to which Mr Turner refers is not carried through to the tribunal context, where all members are of equal status (apart from the legal member on purely procedural issues). The tribunal’s decision-making process is structured by the statutory tests and underpinned by the principles (although the same principles should underpin all care team decisions). The chair is expected to ensure that all members of the tribunal will participate fully in the process, and all members should ask questions to challenge any assumptions or professional deference both in the hearing itself and in deliberation prior to the issue of decisions. Members of tribunals were chosen for their personal qualities, in addition to their knowledge or experience of the mental health context, and through these qualities, supported by training and experience, they are expected not to be shrinking violets. I have observed the later stages of the tribunal’s training programme in 2005 and can confirm that it challenged its members to depart from professional boundaries and take a holistic view of the application, deference being permitted only to the legal tests for compulsory care and the principles set down by the Act.

However such dynamics should not be left to speculation or assumption. Evaluation of the work of tribunals will be undertaken, just as it has been in England & Wales, from which there are also lessons to be learnt. There is also ongoing evaluation and analytical research in relation to the values and decision-making processes of all professions involved in mental health care across the UK. The new tribunals in Scotland provide prime scope for such evaluation. Consumer perception is based on past practice, and we owe it to those with mental health problems to ensure that professionals are working effectively and fairly, and to demonstrate this in a way that will build confidence for the future.

The enabling role of tribunals 

The fact-finding process in the court system in Scotland is adversarial in the main. However the application of civil orders that deprive an ill person of liberty in mental health cases is a particularly fraught area, and one to which the processes of the courts were felt by the Millan Committee to be unsuited. The process that applied under the Mental Health (Scotland) Act 1984 and the Summary Application Rules was one that demanded very little in the way of written averment of the case for compulsion. It did empower the sheriff to dictate how proceedings would be conducted, provided that they were conducted summarily and with the patient present or at least heard, and to make any order in the proceedings provided it was not inconsistent with the summary nature of the procedure.

The process was ostensibly adversarial. In opposed cases evidence would be led in support of the application, and counter evidence might be led from an independent psychiatrist instructed on behalf of the patient. If that psychiatrist produced a report that did not support the patient’s opposition, or was in broad agreement with grounds for the order sought, that opinion could be withheld from the court. However an RMO or other member of the care team appearing as a witness could give evidence to the effect that an independent psychiatrist had visited the patient. Of course they were unable to comment on the content of that independent opinion, but by inference from its absence the opinion would not have helped the patient’s case. If the court had appointed a curator to the person, that curator might refer to independent opinion, whether it was helpful to the person’s opposition or not.

Whilst New Directions, the report of the Millan Committee, does not express in great detail the committee’s reasoning for proposing a tribunal system over a court system, it is implicit in the introduction of any tribunal system that it will have more inquisitorial powers than a court. This is explicitly the case in the MHTs in England & Wales, where, unlike the new Scottish regime, historically medical members have been involved in medical examination of the patient. By comparison, in most tribunal contexts the tribunal has a more overt enabling role, but does not create evidence via its members. Instead of acting as a mere referee, the tribunal can seek to inform its decision making by asking questions beyond the material that the parties offer. It is expert in its membership for that very reason.

Mental health tribunals in Scotland have powers similar to those that the sheriff enjoyed in summary applications, but additionally can seek their own expert opinions, in order to fulfil their statutory function. That function carries with it a very clear decision-making process, a structured discretion and a responsibility to make that decision on the best evidence that it can recover.

What place for privilege?

Mr Turner relies on the concept of privilege to argue that it is inappropriate that any report generated on behalf of the patient should be revealed to the tribunal. It is not clear on which ground of privilege his argument is based. He refers to “absolute” privilege, which is a concept applicable to responsibility for public exposure of material in court, rather than withholding evidence from court proceedings. It is likely that he is referring to litigation privilege, which entitles each side of a case to be prepared in privacy, so that parties in adversarial proceedings can select which evidence to bring to court. Alternatively he may be thinking of the privilege that attaches to the lawyer-client relationship, whereby nothing obtained by the party in connection with the case can be disclosed without the party’s consent.

Mr Turner’s particular concern is that aspect of the tribunal rules that requires: “where any relevant person obtains in relation to an issue before the Tribunal a written report [my emphasis] from a person having expertise in any subject relevant to that issue, that relevant person shall send a copy of the report to the Tribunal”. This is qualified, in that a relevant person may request permission from the tribunal not to submit the report, and need not do so until a hearing after which the tribunal may allow that all or part of the report be kept from it.

The courts in England have grappled with these issues of privilege over recent years, but not in circumstances directly relevant to Mr Turner’s complaint. In the most closely related situation they held that a report obtained by parents of a child in connection with care proceedings, which the parents wished to hold back from the court, was not protected by privilege. They have indicated that litigation privilege is not claimable in proceedings that are not adversarial, such as tribunals, investigations and inquiries. However, it has recently been affirmed that lawyer-client privilege applies to information gathered and advice given including advice about tactics to use in the presentation of a case at an Inquiry. Such authority should support those seeking to withhold independent expert reports from the tribunal.

Using independent experts

If the fear is still that the tribunal will seize upon unhelpful independent psychiatric reports, it might be more appropriate for the patient’s adviser to ask an independent expert to offer advice on the material presented to the tribunal in support of the application. Such comment can be more directly targeted in preparation for exploring the strength of the case for compulsory measures, supported by the principles, and illustrates a potential benefit of the tribunal and the previous court system. The expectation should be, and is, that the evidence presented to the tribunal will be full and precise, and that the applicants can be put to question on all aspects of the tests for the order sought. That rigour is expected in tribunals just as much as in traditional adversarial processes.

It may be that additional enquiries instructed on behalf of the patient generate additional information, which may be used to support or oppose the application. Fairness of an enabling process and integrity of the principled decision require that such information is known rather than concealed. That is a calculated risk taken when any additional and independent opinion is brought into the equation, and it is incumbent on the adviser to take that into account when advising the patient whether to seek such opinion.

The application to the tribunal should contain more information than the applications that were made to the court, helping the adviser to gauge the risks and benefits of seeking more opinion. It does involve the adviser moving away from any habit of seeking refuge behind an independent psychiatric report, rather than looking carefully at whether the grounds for compulsory measures are made out. It is quite correct that if diagnosis or treatment plans are in doubt, expert help should be sought by the lawyer. Indeed a visit from an independent psychiatrist may have value to the patient in assisting understanding or acceptance of the underlying condition or the case for compulsory measures of care. Additional psychiatric opinion might be relevant to the question of what should be recorded matters, something that should operate to the general benefit of the patient. That benefit may not be accepted by the patient at the time of the tribunal’s decision, but again it is incumbent on the agent to try to explain to the patient that the tribunal is enjoined to make a holistic, welfare-based decision which must be informed by all available evidence. 

A different set of principles

The mental health (or rather mental ill health and disability) context suffers from much inappropriate generalisation and assumption, about which much has been done in Scotland in recent years to try to change views. The “See Me” campaign is but one initiative within a wide-ranging effort, but the largest legal step by far is the introduction of the new legislation with its overt principles. The role of lawyers in this context is vital: in protecting, understanding, and communicating a knowledgeable but balanced picture of the new law. However the work also involves embracing a new process, principles and new tests that will at times seem to be anathema to the refereed contest of adversarial litigation.

Mr Turner is clearly concerned about the rule that requires disclosure of any patient-generated reports, and about the deemed or perceived collusion between doctors and nurses in this context. There is much to do to protect those with mental health problems by challenging such stereotypes through engagement with the new systems. I hope that he will be concerned enough to seek to test the new systems from within.

Margaret L Ross, Solicitor; Senior Lecturer in Law, University of Aberdeen; Vice-Chair, Mental Welfare Commission for Scotland

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