As the Mental Health Tribunal for Scotland undergoes its first full review, the current President tells how the system has developed in its early years

Now nearly four years old, Scotland’s pioneering Mental Health Tribunal service has had a significant impact on mental health treatment and is gaining international recognition for its care-centred approach.

So believes its current President Dr Joe Morrow, advocate and priest of the Scottish Episcopal Church, who is shortly to address a conference in New York on the advances made under the Act that brought the system into being. With a review currently underway at the request of the Scottish Government, Morrow believes it provides the vehicle for a thorough assessment of the patient’s needs in a setting that allows a vulnerable section of the population to have their voices properly heard.

“I’m convinced that we’re on the right tracks”, he maintains. “There’s never an end to any of these tracks and we constantly strive to establish a very humane and also a very modern, forward looking, patient-centred approach to mental health law. I think we’re getting there very strongly.”

Formally in post only since last October, but acting President for the year before that, Morrow’s own approach is to bring “a large measure of good old-fashioned common sense” to the tribunal’s discharge of its functions. Always, that is, guided by the tribunal’s core principles, reflected in the “Care and Treatment” message in the title of the 2003 Act. (Though that was a little battle that had to be won in the Scottish Parliament, he points out.)

In essence the message he will take to New York is: “That we’ve got to have the least restrictive practice, that there has to be an involvement of carers and patients and families, that the patient must be at the centre of the process, that we don’t marginalise the patient, that their participation is fairly high on the agenda: these are the sorts of principles that we have to have due regard for in all cases. It’s not just a case of working under the letter of the Act.”

Patient perspectives

Looking through the MHT’s most recent annual report, the very first section offers a selection of comments from users of the system, including a “warts and all” patient’s perspective. Morrow is honest enough to admit that despite a lot of positive feedback from professionals and carers, the experience can still be daunting for the patient.

“We get negative comments from the patient’s perspective about it being a bit over-legal or a bit over-formal. These are general comments that are made about it, but remember that we’re often in many cases giving a decision that the patient doesn’t want to hear. And so their perceptions change at different times in the tribunal.”

He adds: “I think the best way to face up to how we can improve, and some of the criticisms we might not be able to do anything about, is by being crystal clear about what people say to us about their use of the tribunal. But in general terms a lot of the patients find it a much more acceptable environment to deal with issues that must be dealt with, and we have enough feedback on that.”

Review issues

So, after three and a half years of the tribunals sitting, where are improvements needed? Morrow has a shopping list for the review, taking place under Professor Jim McManus, but is satisfied that the Act requires adjustment rather than radical change. One of his main aims is to reduce the number of interim hearings and adjournments. A difficulty here is the requirement to hear an application for a compulsory treatment order within five days of the expiry of the 28 day short term detention, when psychiatrists – who have to complete their assessment of a patient – regularly leave it till near the end of that period to present the application. Morrow believes that a few more days’ grace for the tribunal at that point, without extending the overall 56 day period for which interim orders can take effect, would enable tribunals to be better prepared and make arrangements in advance for independent medical reports or the appointment of a curator ad litem, if necessary.

Some reforms can be made administratively. In their early months the tribunals were criticised for their reluctance to appoint a curator, though they argued that it was right to be cautious in taking the drastic step of removing the patient’s say in the treatment process. Soon after Morrow’s appointment was confirmed, however, he signed a practice note to facilitate appointments the first time the need is identified. “So we’re getting to the first hearing with the curator already doing his work in many cases. We’ve got a much simpler system for paying curators’ fees and the instruction of independent medical reports where necessary, and the great benefit for the tribunal’s efficiency is that we have curators all over Scotland.”

What about the safeguards for the patient? “There are lots of safeguards. First of all we’ve got to have evidence from the responsible medical officer and the mental health officer that the curator is necessary. That evidence is assessed by an individual legal convener, that’s where the judicial decision making goes on, and the third thing is the curators have to satisfy themselves – I don’t know of a case where the curator doesn’t go to see the patient – that the patient is unable to instruct them. All this happens in advance of the hearing. That’s a pretty good series of protections. Then once it comes to a tribunal, you have a separate independent panel who can review the situation again... I think it’s as good as you’re going to get in a legal system without going a wee bit out of the common sense field.”

Member matters

He invokes the same quality when the question turns to another matter that prompted some early debate: whether it is prejudicial to its members’ independence if a tribunal has more than one medically qualified member sitting (see Journal, November 2005, 24, and March 2006, 20). “My response is that in all these situations you need a good dose of common sense. People can sit in the abstract looking into a new system and dream about what might go wrong. We have very clear conflict of interest rules, we monitor that and we have sensitised not only our members but our clerks to issues where there may be conflict of interest, but primarily the training of the members has been to focus on this independent judicial decision making, so they stand there in their own right, with a kind of new set of competences over and above their professional competences that involves them in taking this independent view, and I think the system is as good as we get in terms of preventing those conflicts.”

Morrow further believes that his members’ competences are enhanced by an ethos of collaboration and mutual support. A highly developed, member led training programme has emerged from experience to date; an e-learning course is about to sign off on “softer” skills such as eliciting information from witnesses; an appraisal system encourages members to look at ways of improving their practice; a buddy scheme provides support for new members from existing members; there are numerous guidance notes for both members and administrators; and members are now forming their own networks to share ideas.

“It’s a pretty good package of support and I’m very keen that in establishing their independence the members are able to bring up the issues that they think are significant to the tribunal through the system and get that addressed… It’s a good system because there’s an ownership by the members of what goes on.”

Law in context

As the tribunal develops, so does the law. After some initial appeals confirmed the ground rules such as the semi-inquisitorial jurisdiction of the tribunal, issues are now focusing more on the powers and definitions in the Act – Morrow cites as an example the “helpful” Inner House decision concerning JK ([2009] CSIH 9, 11 February 2009), on the “serious harm” test in s 193 of the Act.

“We have fewer and fewer cases where tribunals are just getting it wrong. And if they are getting it wrong it’s not my business to be taking unnecessary appeals; we just don’t do that. The errors in law are often understandable when you’ve gone in behind the whole case. And errors in law are always going to take place, but I don’t think we have a lot of appeals. The appeals have moved on to interpretation issues that are necessary for the Act, and some of them are quite sophisticated arguments now: it’s about how we refine the Act.”

I wonder whether the field is becoming one for the specialist. Morrow believes it would be unfortunate if the law became as complex as, say, employment law, but thinks the guiding principles in the Act should help avoid that. At the same time, “I do think you need to know what you’re doing. I’m not saying it’s beyond any lawyer to learn this; you just need to know what you’re doing because you’ve got to remember too the patient’s the one who’s at the centre of this. Some of the legislation’s complicated but you need to be able to understand the environment the patient’s working in as well, which is part of the broader mental health system. So it’s also about the culture and the system as well as the law itself.”

The profession is responding, he says. “We are developing quality representation in general terms from the cases I hear, and it’s not smart legal points, it’s focused very much on the care and treatment of the patient. And I’m just glad we’ve got lawyers who are prepared to take that challenge on” – though he would like to see more seeking the specialist accreditation. At the same time he is pleased at the spread of those who are active in the field, from solicitors in small firms to experienced QCs.

Process of protection

If the patient is at the centre, next to him or her is the equally important question of public protection. Morrow stresses that besides being the independent judicial forum, the tribunal has “a very focused eye for the care of the patient, and one of the things that I’ve grown to understand is that the quality of the care and treatment is essential to the big question about public protection”. He continues: “We’re very proactive in looking at care plans and what risk assessments are done and how is the support provided for a patient, and that’s something that’s very dynamic and allows us to take a very broad role.”

While aware of the potential consequences of getting it wrong, he comments: “It’s not a science or a mathematical formula, maintaining the care and treatment of somebody mentally disordered, but I go back to my thesis that the tribunal is just one part of the protection of the patients and others within that process, and what we need to focus on is the high quality of the treatment that is needed of the individual who may be a risk to him or herself or to others.”

To illustrate the level of professional input, he points out that some of the cases come with 10 years of psychiatric history and risk assessment to provide a picture; there may be six or more professionals in attendance at a tribunal; and many patients will ask for an independent report, “so there is an ability to challenge what’s been said about them, but also an ability to have that confirmed”.

While Morrow is happy for the MHT generally to keep a low profile, he wants both to thank the profession for its engagement to date – whether as legal representatives, tribunal conveners or curators ad litem – and to encourage more solicitors to take an interest. “I’m never going to be particularly turned on by theoretical legal argument as to what the system is. You’ve got to look at the situation, you’ve got to see within it the care and treatment and have a good injection of solid common sense, and for me that’s been one of the strengths of the legal profession in Scotland for years, that’s when it’s working at its best… And the final point for the profession is that we actually rely on the general bank of expertise that the legal profession has in Scotland to make the system work. While we are independent, there is no disengagement with the profession to actually get this system at its best as a Scottish solution.”

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