MENTAL HEALTH LAWYERS ASSOCIATION RESPONSE TO THE CONSULTATION BY THE TRIBUNALS SERVICE (MENTAL HEALTH) ON THE ROLE OF IMHAS IN MENTAL HEALTH TRIBUNAL HEARINGS
- 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.
- MHLA accepts that there has been confusion and difficulties at Mental Health Tribunals in relation to the role of IMHAs
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- The proposal in the Guidance Note setting out such matters regarding evidence from an IMHA, is supported by MHLA.
- 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.
- 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.
- MHLA accepts that an IMHA can access the full written reasons for the decision by asking for a copy from the patient.
- 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