Category: News

Defining Liberty (Solicitors Journal, 14 Feb 2012)

The following is an article written by John O’Donnell which appeared as the cover story in Solicitors Journal 14 February 2012 Vol 156 No 6.

Defining Liberty

The Court of Appeal has now confirmed in SSJ v RB (2011) EWCA Civ. 1608 that a patient detained under s37 Mental Health Act 1983 with restrictions under s41 cannot be discharged with conditions which amount to a deprivation of liberty. But are we any wiser on the fundamental question as to what constitutes a deprivation of liberty? Astonishingly, no one knows. Speaking on BBC Radio 4 (“The Report” 24.11.11) the head of the Court of Protection, Charles J, said that if 3 people were asked what is a deprivation of liberty, there would be 4 different answers. If the senior judge of the court designed to protect the liberty of those without mental capacity does not know the answer to this fundamental question, then it is hardly surprising that RB looks on our system of justice with incredulity.

RB is detained in a medium secure hospital under s.37/41 MHA 1983 for treatment of a delusional disorder causing paedophile tendencies. He is now 78 years old and wanted to go to a quiet community home with a nice garden. He loves walking and, because of the past life he led, is happy with the type of environment available. He came before the MHT (FTT) on 24 April 2009 who, having assessed him in evidence before them and aided by the RC’s evidence that he had capacity to consent, he was discharged on the recommendation of all the professionals. One of the conditions was that he not go out of the grounds without an escort, something which caused him not the remotest inconvenience or concern. The MHT concluded that the conditions were not so restrictive that they would amount to a deprivation of liberty and that, even if they were wrong on that, his valid, capacitous consent meant that there would be no deprivation of liberty (DoL).

The SoS did not want RB to be discharged at all so he appealed, arguing that the conditions amounted to a DoL so there would be no proper discharge. As a result the MHT decision was unlawful and he would have to stay detained in hospital. As Bean J said, dealing with a similar point in IT v SSHD [2008] EWHC 1707 (Admin) para.17, “this is a curious area of human rights jurisprudence, in which the Secretary of State prays Art.5…. in aid of an argument that a patient should be detained in hospital”.

Liberté, égalité, fraternité ?

What amounts to a DoL has never been the subject of detailed judicial analysis since Guzzardi v Italy (1980) 3 EHRR 333. Since then there have been hours of argument in court which have amounted to nothing more than an attempt to match individual facts to situations from earlier cases, an approach entirely at odds with the principles espoused in Guzzardi that “the starting point must be [the individual’s] concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question” (para.92). As Bingham LJ recognised in Secretary of State for the Home Department v JJ and others [2007] UKHL 45 para.15, “the task of a court is to assess the impact of the measures in question on a person in the situation of the person subject to them”. He reiterated the observation he had made in R (Gillan) v Commissioner of Metropolis [2006] UKHL 12 that it is “perilous to transpose the outcome of one case to another where the facts are different” (para.13).

There has never been any difficulty with the legal definition of “detention”, the word used in the MHA, which accords with an uncontroversial meaning of a DoL, namely incarceration in a prison or somewhere similar. The problem stems from the phrase ‘’deprivation of liberty’’ in Art.5. The ECHR was formulated by UK lawyers who needed to ensure that the Continent would have a legal framework which would never again fall under the heel of a totalitarian regime. They would have considered deprivation of liberty to be akin to detention but, moved by their continental colleagues’ noble vision of ‘liberté, égalité, fraternité’ , drafted a concept rather than a legal definition. Therein lies the problem for, as Lord Jowett the Lord Chancellor said at the time, “The real vice of the document …(is)… it’s lack of precision.’’ and he went on to query “what results would be arrived at by….elected persons who need not even be lawyers’’.

Difficult decision

If the courts are to rule on what amounts to a deprivation of liberty one would have thought it important to first define what liberty is. It cannot be equated with freedom and we can never be at “liberty” to do whatever we wish. Our actions are constrained by the norms of society and the laws passed by Parliament. It is the duty of lawyers to make ideas workable and flexible enough to do justice according to the customs and values of the people. Without addressing this issue we are driven to the absurdity of trying to define liberty by reference to the number of hours someone is confined to their home.1. It seems that what amounts to a DoL is a matter of pure opinion.2. That being so, a layman might demand that those opinions be expressed with what ordinary right-minded people might regard as common sense. Looking at the range of restrictions discussed by the courts, it is hard to see why the requirement for RB to have an escort outside his accommodation should amount to a DoL. In R (SSHD) v MHRT, re PH (2002) EWCA Civ. 1868 the requirement for an escort while outside his house was not a DoL because it was for his own benefit but in R (G) v MHRT [2004] EWHC 2193 (Admin) an escort for the protection of the public was. So the deciding factor was the purpose of the restriction. Deciding on what amounts to a deprivation of liberty on the basis of purpose is going to cause formidable problems in an already complicated area, as can be seen from Cheshire West and Chester Council v P [2011] EWCA Civ. 1257.3 Introducing purpose at that stage leads to a consideration of best interests. In MCA cases this will often mean what the Local Authority thinks best (the cynic might say cheapest), but in MHA cases the best interests of the public, appears, after RB, to be the decisive factor. Even less so can this conclusion be justified when the State argues that in order to preserve his right to “liberty” he must remain under detention. When Ken Kesey wrote “One Flew Over the Cuckoo’s Nest” or Joseph Heller penned “Catch 22” they would have given a wry smile at the way the English courts were thinking in 2011.

Consent ignored

The most disturbing aspect of the way the courts view the meaning of liberty is in the way the UT and the Court of Appeal summarily dismissed RB’s consent to what was proposed. There are 3 components to the question of DoL, namely the objective situation, lack of subjective consent and attribution to the State (see Storck v Germany [2005] 43 EHRR 96). So lack of consent is an important component. The UT and the Court of Appeal decided that his consent would not be allowed as a matter of law as he had “no choice”. Patients in hospital voluntarily often have no choice about staying as they do not want to be sectioned. CTO patients and those conditionally discharged have no ‘real’ choice about taking medication yet the adverse side effects can often have more profound consequences on their ‘liberty’ to live as functioning human beings than the inconvenience of asking for someone to go with them when they go outside. No life is entirely free from constraints on choice. The Mental Capacity Act 2005 seeks to empower those without capacity to make their own choices so that, just because others think a decision unwise, it does not invalidate it (see section 1(4).

The most workable solution is to take the MHT view as having been right in law and fact. Detention is a clear concept and, as Carswell LJ pointed out in JJ para.70 there is no need to impute restrictions on movement into Art 5 as they are specifically dealt with in Art 2 of Protocol No 4. The UK, along with a number of other countries, has not ratified Art.2. It seems that the judges in RB have made a value judgement for all restricted patients with the perverse result that the State succeeds in securing its wish to control them. Seen like this it is not the case that allowing RB to exercise his choice would create a class of patients who would be doomed to everlasting detention with no prospect of challenge. Unfortunately, it is now clear that a capacitous patient, who is seen as posing a risk, cannot consent to live outside hospital with a condition that he be escorted in the community. Also, we are going to have to look very closely at patients reluctantly complying with restrictions and taking medication since the alternative to compliance is that they are likely to be sectioned. They have no ‘’real choice” either.

Legal representation in mental health cases: article by Richard Charlton

This article by Richard Charlton, MHLA chairman, was first published in Mind’s legal ‘enewsletter’,
issue 10, 20 November 2011 (available here).

Legal protection for people diagnosed with mental disorder and subject to detention and
compulsory treatment was seen as a key feature for those drafting the European
Convention on Human Rights (“ECHR”). In the subsequent interpretation of the enacting
of the Convention, the Courts have been clear that to be effective these rights require
frequent legal review and legal representation Megyeri v Germany 13770/88 (1992)
ECHR 49.

The work of solicitors in this field was described by Lord Justice Brook in the case of R v
Legal Aid Board ex parte Mackintosh Duncan (2000) CO/4807/99 :

“Reading the Report of a psychiatrist, identifying its areas of weakness,
commissioning evidence and the appropriate expert challenge to it and
representing a client at a Tribunal requires expert professional skills borne, as we
have said, of education and practical experience. It is not like going down to the
Magistrates Court as a Duty Solicitor, arduous though those duties are.”

In England and Wales the legal aid system as provided under contract by private firms of
solicitors was adapted to provide most of the required legal representation with legal aid
made available free for those detained in hospital. Legal Aid for such work has, however,
been increasingly constrained particularly in response to an avalanche of new criminal
legislation, with a contracting regime of fixed fees. The very recent arbitrary reduction of
10% in fees makes the provision of legal aid considerably more difficult; and, until very
recently, the Legal Services Commission (LSC) system of matter starts limited the work
that some firms could carry out in certain areas.

However for those solicitors maintaining this work there are a key series of tasks which
clients should still expect from their representative.

Panel membership 

First, solicitors conducting this work should be members of the Law Society’s Mental
Health Tribunal Panel, although one panel member can supervise up to six staff. Indeed
for financial purposes, caseworkers (that is lawyers who are not Panel Members) are
frequently conducting this work under supervision. Panel membership requirements are
currently under review, however at present assessment of both practical and legal
knowledge is required in both written assessment and in interview.

Membership is
reassessed every three years. Effectively a requirement of continued practice in the field
is required for a renewal of membership to be feasible.
Membership of the Panel should guarantee a minimum quality of representation,
although it is no reason for complacency; and regrettably a small number of very poor
practices have been referred to the Law Society, Solicitors Regulation Authority, LSC
and the Mental Health Lawyers Association (“MHLA”). Proper preparation is essential in
every case. Regrettably there are now no current academic works covering necessary
preparation in this area of law. The most recent was the exceptional book written by
Professor Anselm Eldergill, Mental Health Review Tribunals: Law and Procedure
published by Sweet and Maxwell in 1997. A free copy is available to access at the
invaluable website www.mentalhealthlaw.co.uk. However, the recently updated LSC
Peer Review Guide Improving Quality, to be found on the LSC website gives a clear
indication of the steps and consideration that lawyers carrying out this preparation
should frequently take.

Mental health tribunal preparation 

Every mental health tribunal case requires proper preparation. This may sound obvious.
However there are particular demands in mental health tribunal cases. In most other
legal cases clients can give coherent instructions on which to start preparation. In mental
health cases this does not always happen, particularly when clients’ mental states, and
therefore ability to provide instructions, may vary widely from one week to another; partly
because, perhaps, the developments of their illness and partly due to the effect of
powerful antipsychotic medication. This may, in turn, affect their capacity to provide
instructions; however the capacity tests for such instructions is low and this is not an
area in which the Official Solicitor intervenes (one reason for the establishment of the
specialist panel). For further discussion of this issue see paragraphs 4 and 5 of The Law
Society’s Practice Note Representation Before Mental Health Tribunals 2011 (“The
Practice Note”).

There should always be adequate time allowed for a prompt initial visit which should
identify the client’s instructions and advise him or her of the legal options, together with a
timetable for action. Significantly meetings with clients are covered by legal privilege
which cannot be broken accept in very rare situations; these are explored in paragraph 5
of the Practice Note.

Subsequently the Tribunal should be informed that the solicitor is acting and any
application lodged if it has not already been. At the same time the hospital should be
informed of the application and that the solicitor is acting. An application should also be
made for access to the client’s medical records and contact made with the client’s
Nearest Relative listed under s26 Mental Health Act 1983 (“MHA”) if this is appropriate
and/or requested by the client. In addition, enquiries should be made as to whether the
client has a regular Independent Mental Health Advocate assisting and whether liaison
and communication would help the client’s application.

A request should also normally be made for details of aftercare planning meetings to the
Responsible Clinician. Such meetings should be held in accordance with paragraph 27.7
MHA Code of Practice and there should at least be a plan “in embryo” for aftercare and
perhaps accommodation arrangements for discharge. The lawyer may well want to
attend such meetings.

The next step will usually be monitoring that Tribunal reports arrive within the time limits
set down in Practice Direction of 30th October 2008. The reports will usually comprise
the Medical Report, the Social Supervisor’s Report and that of the Nursing team. Again it
is important to allow time for full instructions from the client and consider the next steps
in preparation. This might include considering important inaccuracies in reports and
investigating them in the client’s medical records.

EXAMPLE 

In my early days of carrying out this work, I represented a client who had been
transferred on s3 MHA to a private secure unit in Yorkshire far away from her home in
east London. She had been transferred on a number of occasions, but was seen to
represent a risk to others as she would not admit to an incident involving the use of a
gun on the ward of a London hospital where she was said to have threatened staff and
patients. Her lack of recognition of this fact was seen as confirmation that she was both
treatment-resistant and a threat to others. As is still frequently the practice medical
records do not travel with the patient and staff at the private hospital accepted all that
was said in old reports. However, following her instructions I finally tracked down the
nursing records covering the incident. The client’s nephew had visited her on a semiopen
ward and played with a toy gun with the client. Whilst staff felt this play had
become mildly disruptive that was the end of incident. In a subsequent report covering
the event the description “toy” was left out, but otherwise the incident was described
accurately. Subsequent report writers, clearly never examining the source records,
started to introduce alarm into their reports and, each report building on another,
increased concern and risk accordingly. Regrettably the client had lost contact with her
family members who might have corroborated her account.

When the Responsible Medical Officer (as he then was) (Editor’s note: now known as
the Responsible Clinician) was presented with this first hand evidence a few days
before the client’s Tribunal he was both embarrassed and apologetic to the client. He
subsequently discharged her from s3 MHA shortly before the Tribunal hearing
commenced. 

This problem was recognised by Munby J at paragraph 129 R (AN) v MHRT (2005)
EWCA Civ 1605″…….The Tribunal must be alert to the well-known problem that constant
repetition in ‘official’ reports or statements may, in the ‘official’ mind, turn into established
fact something which rigorous forensic investigation shows is in truth nothing more than
‘institutional folk-lore’ with no secure foundation in either recorded or provable fact.”

In any event medical records should generally be examined in addition to considering
reports. Key events favourable to the client may be missed from official reports; or
alternatively a full account of incidents or events will frequently assist the client’s case.
Medical records are often the most reliable source of information in s2 MHA Tribunal
cases and always provide a more updated picture than the latest report. They are of
course examined by the Medical Member shortly before the Tribunal hearing, and
therefore not to examine them would put the client at a disadvantage in relation both to
the clinical team and Tribunal members.

Following consideration of the Tribunal reports with the client there should then be a
discussion with the client if any independent evidence is required. Guidance on this is
given in the LSC’s “Improving Practice”. Such reports can properly be obtained under
legal aid thereby acknowledging the “equality of arms” provisions of the ECHR. An
independent report could include obtaining the report of an independent consultant
psychiatrist to counter the expert evidence of the Responsible Clinician supporting
continued detention. Other independent experts instructed could include an independent
social worker, particularly if the local social services department has not provided
sufficient aftercare planning details, or details of supported accommodation. Other
experts might be psychologists or even occupational therapists.

Independent reports, with very limited exceptions, are covered by privilege. So if the
report does not support the patient’s application, the reports do not have to be served. If
the reports do support the patient’s application, consideration can be given for them to
attend to give oral evidence.

Representation at the Tribunal can generally be carried out by any employee of a firm or
organisation with an LSC contract with sufficient expertise, except in High Security
Hospitals, as long as they are supervised by a Tribunal Panel Member. However, at
High Security Hospitals only panel members may carry out such advocacy. There is
possibility that in future contracts only panel members will be able to carry out advocacy
under a legal aid contract.

If the Tribunal has evidence before it which the Responsible Authority thinks would
cause serious harm to the patient or others, it can try to prevent this from being
disclosed to the patient. A legal representative, however, has the right to consider such
evidence under the provisions of Rule 14 of the Tribunal Procedure Rules 2008 (SI 2008
No 2699) and argue for its disclosure. If the patient is not legally represented this case
would not be put.

During the hearing the legal representative will cross examine the professional
witnesses and usually assist the patient with his or her evidence. At the end of the
hearing the representative will present submissions as to why the statutory basis for
discharge has been met (assuming these are the patient’s instructions).

If the Tribunal does not discharge the patient the solicitor should discuss the position
with the patient and especially consider if the decision is unlawful. If appropriate the
patients should be advised to request the First Tier Tribunal (Mental Health Review
Tribunal in Wales – Editor’s note) to review its decision and if necessary make an
application to the Upper Tribunal. Subsequently counsel may be instructed for any
appeal hearing there. The role of the Upper Tribunal has in many respects replaced the
Administrative Court in this area of public law and is a rapidly developing area of
jurisdiction.

Aftercare 

In addition to Tribunal work, mental health solicitors have a range of other critical areas
on which to advise and represent clients.

Of particular significance at the moment is that of aftercare, including those eligible to
s117 MHA support on discharge. Many readers will be aware that s117 has recently
been subject to further scrutiny in cases such as R (On the application of Mwanza) v
Greenwich LBC [2010] EWHC 1462 (Admin). What is clear is that a number of local
authorities are taking abrupt and unlawful steps to curtail appropriate support as part of
the sudden need to save money. Mental health solicitors have a critical role here in
challenging such steps on behalf of these clients who otherwise might even face a
lifethreatening collapse in support. Here Independent Mental Health Advocates also have a
vital role to play in obtaining expert legal assistance for their clients as frequently such
clients have no access to specialist solicitors. It is encouraging to see such partnerships
working in at least some cases, and I have personally been involved in a number of
these since April of this year. However, this must surely be hardly the tip of the iceberg.
A list of available solicitors is available on the Mental Health Lawyers Association site
(www.mhla.co.uk) and Mental Health Tribunal Panel members on the Law Society site
(www.lawsociety.org.uk.)

Capacity cases 

Capacity cases, especially those involving Deprivation of Liberty (DoLs), are another
area where mental health solicitors have a core role with respect to Article 5 of the
European Convention on Human Rights (ECHR). Here Independent Mental Capacity
Advocates have very important responsibilities in highlighting to patients, and their
families, their rights to access a court. Many readers will be aware of the significant case
of Re Steven Neary; LB Hillingdon v Steven Neary (2011) EWHC 1377 (COP) which
reinforced the role of the court and strongly emphasised the duty of Local Authorities (or
Health Authorities) to bring such cases themselves to court where they consider it
appropriate. It is of considerable concern that far more cases have not come to the court
subsequent to this judgment.
Solicitors who conduct this work are listed on the Mental Health Lawyers association
(MHLA) website: www.mhla.co.uk.

Treatment cases 

Solicitors still bring appropriate cases to challenge compulsory treatment. However the
courts are frequently not sympathetic and tests to challenge procedure and medical
necessity are often difficult R (B) v Dr. SS] [2005] EWHC 1936 (Admin).

Conclusion 

The role of a mental health solicitor is arguably never more challenging than it has been
today. This is in particular with clients’ situations evolving rapidly either under financial
pressure and/or case law developments. Tribunal work, with over 25,000 applications a
year, and with such clients subject to detention and compulsory treatment, remains an
undiluted challenge. However a substantial, but unknown, number of patients subject to
Deprivation of Liberty under the Mental Capacity Act 2005 are frequently not even
accessing legal advice

In these demanding times, it is essential that specialist solicitors in this field work closely
with advocates covering both mental health and capacity work to identify and assist
some of the most vulnerable in our society.

Richard Charlton

Head Mental Health Department Creighton & Partners

Chair Mental Health Lawyers association

[Note from Mind:] We would like to express our thanks to Richard Charlton for his thoughts on this
important subject. The views expressed in this article are his own and do not
necessarily reflect Mind’s policy. Further information on the matters raised here can be
obtained from the Mental Health Lawyers Association.

Mental Health Law and Practice by Professor Phil Fennell

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Response of the Mental Health Lawyers Association to the Rule 35 Consultation

1. Introduction
The Mental Health Lawyers Association (MHLA) represents the overwhelming majority of solicitors and solicitors firms who represent those detained in hospital. Our members have been involved in many significant cases that have helped establish the rights of vulnerable people. The Association was founded in 2000 and has contributed to many consultations on issues that concern our members and those we represent. The Association is recognised as the organisation representing specialist lawyers in the field by bodies including the Law Society, the Judiciary, the charity MIND and the Ministry of Justice itself. We have met with a range of Government and parliamentary figures, including Ministers

2. Community Treatment Orders
In its response to the proposal of Community Treatment Orders (“CTOs”) in the Mental Health Act 2007, this Association opposed their introduction. We felt they were too restrictive on the liberty of patients and we did not consider there was any proof that they would work or otherwise be proportionate to the restrictions they would create. We felt resources would be better put into adequate aftercare support as we felt this was the key factor in patients relapsing. We did not consider “legalising” such supervision would generally be useful in this context. We noted this was a view in part supported by a Department of Health commissioned survey of community treatment orders equivalents from different parts of the world.

However the Association felt that if CTOs were to be introduced there needed to be a rigorous system of reviews to their imposition.

3. Consultation Responses
Q.1 Do you agree that the Tribunal ought to be able to determine a reference in respect of a community patient without a hearing, provided the patient has given valid consent.

The overwhelming response from our members is to oppose these plans for a number of reasons:

(a) A major concern of the Association is the issue of “valid consent”. How is this to be assessed? If a patient simply signs and returns a form there will be no proper appreciation of his or her capacity. If the assessment is to be carried out by Responsible Clinician (“RC”) then it could be said that this not a neutral assessment as the RC has an interest in the CTO continuing. In turn this would introduce a major flaw in the important statutory check on CTOs which Parliament had in mind when voting for this legislation. We note there will be no proposed access legal representation or IMHA as part of this process. In these circumstances we consider that European Convention on Human Rights will be breached at the same point s as set out in (b) below.

(b) We have considerable concern as to how effective a “paper review” can be in carrying out the Tribunal’s statutory duties. Few of us have ever been in Tribunal hearings where the taking of oral evidence has not been of considerable significance in the decision making of the Tribunal, even if this is simply to update evidence before the Tribunal, so that it reflects the exact position when the Tribunal makes its decision. We do not consider it satisfactory, nor compliant with Articles 6 or 8 of the European Convention on Human Rights, or perhaps Article 5, that a paper review only is carried out. Some of our members still recall proceedings under 1959 Mental Health Act where evidence was tested with much less rigour than now especially because of more paper hearings; they fear a return to those “dark days”.

(c) It has been said that many patients do not want intrusive referrals. However there are a range of reasons we are aware of as to why patients may not want to take part in hearings. First, patients whilst wanting to get off a CTO, frequently do not to come back to hearing in a hospital where they were detained. Often they fear that something they say or do in a hearing will “recall” them back onto a detaining section; something of course which is all too easy with a CTO. Others simply do not want to meet the clinical team, especially with the Responsible Clinician, unnecessarily, again fearing for their liberty. Patients in these situations need support from both Independent Mental Health Advocates (“IMHAs) and legal representatives to exercise their rights. Here referrals may have a critical role to play in that the patients will hopefully meet with both legal representatives and IMHAs when they might not otherwise have done so thereby potentially giving them the confidence to exercise their legal rights to challenge the CTOs.

(d) We understand that some have expressed the view that if patients are generally “happy” on a CTO that they should not be forced to be involved in a Tribunal hearing. However, this can hardly generally be the case otherwise why is the CTO required at all? The original logic behind such a section was to deliver a degree of coercion into community treatment: if the patient is happy to accept it, why the need for coercion?

(e) We are greatly concerned that without regular reviews into CTOs they will simply drift on for years as there will be no effective challenge to them in cases where perhaps for the reasons outlined in (c) above.

4. Other Questions
We have nothing to add to what we have outlined above at this stage.

Conclusion
We appreciate that there may be financial and administrative reasons why the Tribunal is considering removing automatic referrals in CTO cases. However for the reasons set out above this Association strongly opposes them and considers that consequential breaks in the European Convention on Human Rights will arise. We note, also, that neither the Tribunal nor the Department of Health has commissioned any research into why certain patients are not exercising their rights in this area.

We would be very happy to discuss these issues further

Mental Health Lawyers Association 9th August 2011
admin@mhla.co.uk

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MHLA Response to Draft Guidance on IMHAs

MENTAL HEALTH LAWYERS ASSOCIATION RESPONSE TO THE CONSULTATION BY THE TRIBUNALS SERVICE (MENTAL HEALTH) ON THE ROLE OF IMHAS IN MENTAL HEALTH TRIBUNAL HEARINGS

 

  1. The Mental Health Lawyers Association (MHLA) has received a copy of the draft document on the Role of Independent Mental Health Advocates (IMHAs) in Tribunal hearings. MHLA would like to comment on the document and put forward their views on IMHAs at such hearings.

 

  1. MHLA accepts that there has been confusion and difficulties at Mental Health Tribunals in relation to the role of IMHAs

 

  1. The problem has arisen due to the lack of statutory definition of the IMHA’s role at Tribunals. MHLA welcomes the provision of a Guidance Note to assist all parties and attendees at Tribunals.

 

  1. MHLA takes the view that IMHAs must only be present at Tribunals on the expressed request of the patient and that this must be communicated to the Tribunal office at least 24 hours before the hearing and must also communicate this to the legal representative. Such communication shall be in writing.  MHLA feels that this will allow the legal representative to discuss the role of the IMHA at the hearing taking into account the particular client and their needs and requirements.  MHLA are of the opinion that some of the confusion arises due to the IMHA attending at the last minute, at the door of the Tribunal and there is no opportunity to clarify and agree on matters regarding the way in which the hearing will proceed.

 

  1. MHLA is concerned that the attendance of an IMHA could be as an active participant, assisting the patient with understanding evidence; as a witness, giving evidence; as an observer, supporting the patient, by their presence or even as a ‘representative’ on behalf of the patient.  Clearly, it would be of assistance to the Tribunal and all parties for this to be clarified at the beginning or prior to the start of the hearing so as to avoid any short adjournments during proceedings.

 

  1. The role of the IMHA should not interfere with the role of the legal representative acting on behalf of the patient.  The role of the legal representative is very clearly defined and does not require any further clarification. MHLA accepts that there may be situations when the IMHA takes on the role of representative under Rule 11(1).

 

  1. MHLA agrees on the position of Non-disclosure of material should extend to the IMHA. The legal representative is bound by the Rules relating to non-disclosure but IMHAs are not bound by the same Rules unless they are the ‘representative’ and give undertakings. Again, we are of the opinion that this causes difficulties and is best avoided by the IMHA not being involved in matters regarding non-disclosure where the patient is legally represented.

 

  1. MHLA accepts that there may be occasions when an IMHA may be asked to give evidence. We are of the opinion that this situation is no different when the patient has asked for a person (friend or family) to attend and give evidence to the Tribunal. Such issues are discussed with the legal representative and their client beforehand and this is communicated to the Tribunal at the beginning of the hearing when preliminary matters are being discussed.

 

  1. The proposal in the Guidance Note setting out such matters regarding evidence from an IMHA, is supported by MHLA.

 

  1. MHLA does accept that an IMHA’s role does not include the asking of questions of any parties (or of the Tribunal Panel) during the proceedings where the patient is legally represented. Such action must be addressed at the beginning of the hearing and enforced during the hearing, should it arise.

 

  1. MHLA is aware that there have been issues with note keeping by parties and attendees at Tribunal hearings. MHLA’s position on this is that only the Tribunal Judge and the legal representative should take written notes. MHLA accepts that witnesses do take brief notes in relation to points in order to refer to these when they give evidence.  In relation to IMHAs, MHLA can see no reason why just note taking would be necessary or justified. MHLA would like there to be clear guidance on this position generally. It is our opinion, that should parties feel that such notes are necessary, then they should be surrendered to the Tribunal panel at the end of the hearing for disposal.

 

  1. MHLA accepts that an IMHA can access the full written reasons for the decision by asking for a copy from the patient.

 

  1. MHLA broadly welcomes the draft guidance on the role of IMHAs at Tribunals and such guidance will be of assistance for all persons concerned with the smooth running of Tribunals.

 

 

 

11 November 2010

 

 

Mind’s Care in Crisis Campaign

Care in Crisis: an inquiry into acute mental health services

Is crisis care working? Mind’s Care in Crisis campaign is calling for evidence to be submitted to its independent inquiry investigating the state of acute and crisis mental health services. This includes all adult in-patient care, crisis resolution teams, emergency departments, crisis houses and alternative approaches.

Mind will use this evidence to campaign for improved care across all adult acute and crisis mental health services in England and Wales. We are keen to hear from everyone with experience, knowledge and ideas on any aspect of this crucial part of mental health care, including lawyers, advisers, advocates, interpreters and tribunal members. We are interested in both individual and organisational views.

If you can help, please complete the Care in Crisis inquiry survey, write to Alison Cobb, Senior Policy and Campaigns Officer, Care in Crisis, Mind, Freepost (WD 2336), London. E15 4BR or email action@mind.org.uk. The deadline for submitting evidence is 17 November 2010.