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.

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