CONSULTATION ON THE PROPOSED CHANGES TO THE CURRENT LISTING PROCEDURE FOR THE FIRST-TIER MENTAL HEALTH TRIBUNAL
THE RESPONSE OF THE MENTAL HEALTH LAWYERS ASSOCIATION
- This is the response of the Mental Health Lawyers Association.
- The Association represents around 80% of the Law Society specialist Panel members representing detained clients before the First-Tier Mental Health Tribunal (“the Tribunal”). The Association is acknowledged by all relevant bodies as providing specialist representation for legal practitioners in this area of practice and has met with senior politicians, including Government Ministers; the judiciary; user groups; and other professional bodies in addition to relevant Government departments.
- The Association is grateful for the opportunity to respond to this consultation. This is especially as we have noted that consultation has not always previously taken place with key stakeholders in this jurisdiction; for example, in the introduction of the previous listing questionnaire. Such consultation is not only, in our view, a proper courtesy, but more important is likely to inform much more effective changes given that stakeholders operate within the Tribunal’s structure on a daily basis. We have consistently supported proper case management, and have taken such concerns to ministerial level. We have strongly advocated for the need for additional full-time judiciary to assist in such management.
- We are, however, regrettably greatly concerned at many of the proposals set out in this consultation. We appreciate issues such as late listing; late reports; Tribunal panel booking problems; lost applications are issues which need review; resources and, of course, proper case management. Nevertheless for the reasons set out below, we think many of the proposals for case management are misguided.
- Throughout our response when we refer to “applications” to the Tribunal, we also mean “references”; and all mention of a male patient implies also a female patient.
- Consultation Introduction
The introduction to the consultation states:
“1. The current process used by the Mental Health Tribunal to list appeals is cumbersome, time consuming and resource intensive and does not achieve the best outcome for tribunal users. It can often take several days or even weeks to list a case. This has a significant impact on the performance of the tribunal and results in unnecessary delays for the tribunal user.
2. In response to these problems we have developed a new process that we intend to implement later this year. The purpose of this note is to set out the detail of the new system and seek your views, as tribunal users, in advance of implementation. It would be very helpful if you could consider the practical application of the new process and provide us with any views you have. We can then consider your views and take account of them when developing the final details of the new process and plans for implementation.”
- We understand that the present arrangement for agreeing a date for a hearing on the telephone will take time administrative time, but we do not consider that the introduction of written forms will generally assist. In the Introduction to this consultation paper, paragraph 1 indicates that “It can often take several days or even weeks to list a case.” This is generally not, however, the experience of our members, except in complex cases requiring a substantial number of witnesses. Even if this were shown to be a more general an issue in certain areas of the country (and we strongly suspect this will frequently be linked to administrative problems in the Tribunal), we strongly consider that because of the nature of the jurisdiction, that the flexibility of telephone arrangements is much more appropriate. We expand on the possibility of a case management role below.
- As you will be aware, the present procedure involves a member of the Tribunal administration contacting the parties, including our members, to give a 48 hour window to confirm agreement of a proposed date. If our members, or indeed other parties, fail to respond within that time, a date is likely to be imposed. This can be tight timing for our members, especially for those with small practices as we have indicated previously, however we accept the need to expedite the settling of a hearing date. If a date cannot be agreed, then further dates are canvassed, perhaps during the initial response call with the Tribunal administration.
- The proposed HQ1 Initial Questionnaire
The proposal to create a “paper trail” by way, initially, of the HQ1 Form we see as creating more work for all concerned and will positively hinder proper case management. In particular:
(a) The requirement to use recorded post or secure email only
The proposal is that forms will have to be sent by recorded post or secure email. Recorded post will involve our members’ in additional expenditure and delay whilst this is sent by way of having to physically attend the post office. This again will be especially arduous for small practices. With respect to secure email, a number of members had difficulty in operating this system and have experienced non-receipt of documents. At present it is not widely used and has been acknowledged generally as a system which is not always easy to use. We note that faxes, a regular form of communication by our members, will not apparently be permitted, nor apparently will the DX system. Thus, the prompt return of these forms will be of considerable difficultly for many of our members. The proposal seems particularly unfair when the Tribunal itself frequently sends correspondence and documents by fax, regular mail and/or DX, rather than by recorded post. Why is it considered, therefore, that is appropriate for the Tribunal and not for parties to the proceedings? We note this requirement for service of documents by recorded delivery or secure email is not one reflected in the Tribunal Rules.
(b) Keeping blocks of “not inconvenient dates” free
The HQ1 form itself indicates a request for “Inconvenient Dates”. There will a substantial number of such dates in the “window period”. We suggest it would be more appropriate to request “available dates” and provide a more substantial box to enter these details. However, our great concern is that these dates need to cover a substantial window period; a 4 week period in unrestricted cases, and a 3 week period in restricted cases. It is unrealistic to expect practitioners, or indeed other parties to the Tribunal, to keep these windows open for long. The beauty of telephone conversations is that these dates can generally be arranged flexibly and quickly. The implication appears to be that the HQ1 Forms will be processed within seven days of receipt, or twenty-one days from the application being received. However even if this is period is complied with, (and we would strongly suggest that it will be at least several days longer given the Tribunal’s poor record for processing much paperwork as indicated in the latest performance indicators), it will be difficult for members, and other parties, to continue to keep a block of all these dates open. This is a view which we know is also held by the Institute of Mental Health Act Practitioners with regards to the consultant psychiatrists and social workers etc. with whom they have to liaise. The fixing of a belated, and then inappropriate, date for Tribunal parties will, in turn, result in an avalanche of further applications to change dates, creating further work, cost and inconvenience as well as uncertainty for the patient applicant. This will far outweigh any gains in administrative time thought to be created by the new system.
(c) Priority for “witnesses”
The reference to “witnesses” appears ambiguous. Does it mean the patient, or does it refer only to professional witnesses of the detaining authority? If it is the latter, it would seem unfair to the patient and his representative. Of course, the patient and his representative will not usually be in a position at this stage to be aware of the role of any independent expert witness and meeting the requirements for satisfying the public funding criteria for instructing such witnesses because they will not have received evidence indicating the Responsible Authority’s position.
(d) Assessing “patient competence”
How is it proposed that the “patient’s competence” is assessed by the Responsible Authority? Will this task be conducted by the Responsible Clinician? If so it is anticipated that this might, in itself, generate a delay. In addition, has consideration been given to any form of independent assessment, given that the Responsible Clinician will probably also be supporting continued detention. This might be particularly appropriate in the case of a reference where a client has been detained for a substantial period of time. Is it the intention, in any event, to request the “assessor” to generally apply the standard set down in R(H) v SSH(2005) UKHL 60?
(e) Comparison with the present system of fixing a date
For the reasons set out above we think the present system is essentially far more effective. We understand that there may be difficulties on occasions in fixing a date, however we consider it would be much more efficient to deal with these on a “case-by case” basis. Thus, if a particular Responsible Authority persistently refused to agree a date, or return telephone calls, a date could then be imposed. The same could apply to other parties. This should be one of the major advantages of more full-time judiciary to case manage. The alternative proposed here is to create a new written document, which needs to be submitted, examined and finally acted upon meanwhile requiring all parties to retain “dates which are not inconvenient” in a period of three to four weeks for a week’s duration. We believe this is impracticable and will lead to greater delay and confusion as such a wide sweep of dates is impossible to maintain. Further delay will be caused by the restrictive requirements of particular service of the new questionnaire on the Tribunal; whilst the issue of “witness priority” threatens either confusion or unfairness.
- Further Case Management – Submission of the proposed Form HQ2
With respect to the proposed Form HQ2, it is unclear when this needs to be submitted. In particular the ability to comment initially on a patient’s case is contingent on receipt of the Responsible Authority’s evidence and the opportunity to take proper instructions on this. As the Association has repeatedly indicated over the past decade, when such required reports are not served within the requirements of the Rules it is inappropriate, and more importantly unfair, for the patient’s legal representative to comment further. Other problems regarding comment on the patient’s case are explored below. With this in mind we respond to the Questions on the Form as follows:
Question 1: What is the Patient seeking from the tribunal
As indicated above, the patient will need receipt of the Responsible Authority’s reports before giving full instructions. However, other issues make this question difficult to answer in this jurisdiction. Clients’ instructions frequently change in the duration of an application. Often this is a reflection of the client’s changing mental state in response to the medication and other treatment. Answering this question might provide a ”snapshot” of the patient’s views early in his application, but this may very well change even up to the start of the hearing itself. What then would be the Tribunal’s response to this? If the patient indicated that previously he wanted a recommendation but now he wants a discharge, would the Tribunal refuse to hear this? Presumably not? In addition, would the client’s earlier indication “that he only wanted a recommendation” be put to him the hearing; for example, “You only wanted a recommendation then, why do you want discharge now?” Finally, and very significantly, many clients are very suspicious of the whole process governing their detention in hospital, including the review of this detention. In particular some clients might be concerned that such questionnaires were being provided, in restricted cases, to the Ministry of Justice. Such clients could well be distressed that early disclosure of their instructions was being given in writing in this way. If they refuse to answer this question, what will be the view of the Tribunal?
Question 2 “What are the principal areas of dispute?”
Again the answer to this question will be dependent on the timely receipt of reports of the Responsible Authority and the ability to take instructions on these. Please bear in mind, also, that obtaining instructions from patients is frequently a demanding and time-consuming process. On many occasions members attend to find that their clients are, for example, too tired from the side-effects of recent medication; have just been granted a community trip; have been transferred; or have had a recent relapse. As in the response to Question 1 above, it may be impossible to ascertain “areas of dispute” in the timescale required, or indeed much before the hearing itself; and, of course, the medical member of the Tribunal may raise new issues having examined the patient just before the hearing. See also below for our comments on independent expert witnesses. Given all these considerations, many Association members have therefore asked “what is the real point of this question?” As there are so many uncertainties in planning for the hearing, we suggest that all attempts to suggest that the Tribunal should not be ready to review all issues regarding detention, and the statutory basis for discharge under the Act would be wrong. As Lady Justice Hale has pointed out in R v Ashworth Hospital Authority ex p B  UKHL 20 at para :
“ … psychiatry is not an exact science. Diagnosis is not easy or clear cut. As this and many other cases show, a number of different diagnoses may be reached by the same or different clinicians over the years. …”
We do, however, accept that they will be a minority of complex cases, where identifying areas of dispute would be appropriate. The raising of such questions might evolve around established disputed points in a case such as aftercare issues, the appropriateness of treatment, diagnosis etc. It is very likely that these would have already been flagged up, perhaps in an adjourned hearing.
Question 3 “Do you wish to instruct an independent expert?”
Again the ability to answer this question would in part depend on timing; with again the need to receive the Responsible Authority’s reports and take adequate instructions on these. Instructions would usually have to taken, as well, from the patient as to the instruction of an independent expert. If this had not been done the representative could not answer this question. In addition, however, a number of members feel that such a decision is in any event privileged and the Tribunal should not know the answer to this until instructions had been received to rely on this report. Members have also commented that answering this question might prejudice the patient’s decision to instruct an expert because failure then to serve such a report would imply the report did not support the application. In any event, the Association sees little point in asking a question such as this as even if the decision has been made at the time for this questionnaire is completed, to instruct an expert, the only relevant time that the Tribunal needs to be involved is if the decision is made to rely on the report. If more time is needed for the expert that, of course, would be subject to a separate application for a postponement to the Tribunal, which would be considered under the existing case management machinery.
Question 4: If the answer to question 3 is “yes”, please state: (a) Which expert(s) do you wish to instruct, and what are their areas of expertise? (b) What area of dispute in the case (as identified in the answer to Q.2 above) will their evidence address? (c) When will their report(s) be available? (d) Will the expert(s) attend the hearing to give oral evidence (e) Whether you intend to ask for a postponement of the current hearing date?
We refer generally again to our answers above. In addition:
(a) Which expert(s) do you wish to instruct, and what are their areas of expertise?
We should point out that we would not wait to inform the Tribunal of our decision to instruct an expert; as implied by the wording “do you wish to instruct.” Once the Responsible Authority’s reports are received and instructions generally obtained, then a decision would quickly be made, in conjunction with the client, and having regard to public funding guidance, as to which type of expert to instruct, with enquiries generally beginning as to appropriate expert availability.
(b) What area of dispute in the case (as identified in the answer to Q.2 above)
It will frequently not be clear as to the areas of dispute arising until the expert’s report has been obtained. Thus an expert might be asked to address an issue of appropriate medical treatment only to identify a different diagnosis. Whilst we are specialist lawyers we are not, of course, psychiatrists or psychologists and therefore we cannot anticipate their conclusions as to issues, even if we ask them to address particular areas which seem pertinent to us. We refer you again to the comments of Lady Justice Hale above.
(c) When will their report(s) be available?
This is an issue we build into instructions of such experts. If a date has been already set for the Tribunal, and the appropriate expert cannot complete their report in time, we would seek instructions from our client and, if appropriate, then make an application for a postponement of the hearing date, or perhaps attempt to get another expert. This is effectively how the system works at present and, we strongly submit, is the most appropriate and efficient for both ourselves and the Tribunal. We would, of course, need to take instructions from our client as to whether the report was to relied upon in any event
(d) Will the expert(s) attend the hearing to give oral evidence?
We cannot know whether we wish to ask the expert to give evidence until we have received their report, and taken instructions from the client. Therefore, again, we will not be in a position to know this until this situation arises. It sometimes occurs that notwithstanding that the report supports discharge, and the advantage of the expert attending to give oral evidence, the client does not wish to seek a postponement to allow the independent expert to attend because he does not wish to delay the hearing. Often careful advice and instructions need to be considered on this point
(e) Whether you intend to ask for a postponement of the current hearing date?
See our answer generally to (d) above. We cannot know until this situation arises and if appropriate we would of course then made an application in the usual way.
Question 5: Please identify any other witnesses you wish to call to give evidence to the tribunal.
It is unclear as to what is meant here. Does it include the patient applicant? If so, this is sometimes not clear until the Tribunal hearing itself. Presumably it does include members of the patient’s family. However, relations between a patient and his family are often very dynamic during a period of hospital detention. At the point a questionnaire might be completed a client may say he does not want to attend a hearing, nor that his family should. A little before the hearing he might have changed his mind. Would the Tribunal then realistically say he could not be heard, together with members of his family? Surely the answer to this is that they would have to hear them. We ask, therefore, what is the point of this question? With respect to the calling of an expert witness, please see our answers above.
Question 6: Is the hearing likely to last longer than half a day? If so, what is your time estimate?
We fully agree that this is an appropriate question, the answer to which, we strongly suggest, removes the need for much of this questionnaire. We propose that the default position is that each hearing is presumed to last no longer than half a day. This effectively reflects the position as it is now. Half a day should normally encompass an effective Tribunal compliant with the requirements of Articles 5 and 6 of the European Convention on Human Rights, and allow any issues arising similar to Questions 1 to 5 of this Questionnaire to be ordinarily dealt with in the hearing itself. We believe that the vast majority of Tribunal hearings do require a half day allocation and refer to our previous correspondence with the Deputy Chamber President on this point. If the patient’s legal representative, or other parties, considers that a hearing will last, for whatever reason, longer than half a day, we agree that this should be bought to the Tribunal’s attention at the earliest opportunity for consideration of further case management.
Question 7: Is the application likely to be withdrawn? If so, is there any reason why instructions cannot be taken in good time, so that withdrawal, so that withdrawal can take place at least 4 days beforethe scheduled hearing date?
How can we know this at the time of completing this questionnaire? Presumably the point of the application is for it to proceed and so the answer must be “no” when preparation is continuing. Members certainly appreciate that a withdrawal application should be communicated promptly to the Tribunal, however this is usually impossible to predict. Often last minute developments prompt a client to want to withdraw over which we have no control or prior knowledge.
Question 8: Do you wish the tribunal to make any directions? If so, please explain why, and submit a draft of the direction(s) you seek.
Again this will be governed by an unfolding of events. It may be that at that snapshot of time when this questionnaire was completed that no directions are required, but are necessary a few days later. How could we be penalised for this? We submit that it is a representative’s duty, in any event, to make such an application as soon as it is warranted, with instructions taken as appropriate. In these circumstances we do not see a value in this question as it will simply reflect the time when this questionnaire was completed and ignores the dynamic nature of many Tribunal cases.
Question 9: “Will you be instructing Counsel? If so, who?”
Again we cannot see the object of this question. If this question is designed to address complexities arising in the case, we have generally addressed these issues above. Surely the only relevant issue for the Tribunal is whether the patient applicant will be legally represented. If the case becomes complex such that it cannot be dealt with in half a day, or requires directions hearings, requiring counsel, this will generally be subject to further applications as and when the circumstances are found to arise.
Question 10: Will your client need an interpreter at the hearing? If so, in which language (and dialect)?
We agree this an important issue, however one which is already addressed in the original Tribunal application form. Legal representatives should already be addressing this issue with both the Tribunal and the Responsible Authority (who generally have responsibility to provide the interpreters) at an early stage and before any questionnaire such as this was provided. Repeating the question at this stage is therefore duplicating information that the Tribunal should already hold and be considering.
Question 11: Are there any other issues relevant to your client’s case that you wish to bring to the tribunal’s attention?
This is a very wide question and again subject to the dynamic nature of evolving case preparation. For example, a client might say that he disagrees with a series of incidents set out in the Responsible Clinician’s Report; however subsequent to a combination of the representative examining the client’s medical records to verify details and the client’s mental state changing, he then accepts the general accuracy of the report. At a particular point in preparation a lengthy series of challenges might have been possible; ultimately, however, these have come to nothing. Again we suggest that this point could generally be covered in the “catch-all provision” of raising with the Tribunal a real possibility of a case lasting longer than half a day.
- Other Issues of Further Case Management
There are other issues raised in the accompanying consultation letter which are relevant. These are as follows:
(a) If we need to re-list, due to the case lasting longer than first anticipated, we will allocate a new date without consultation (point 12)
We cannot understand the logic of this statement. Is it assumed, therefore, that if a case runs longer than half a day, perhaps due to unforeseen issues arising, or the sudden illness of the patient or another party, that an arbitrary date be imposed? If so, it is very likely that professional witnesses will be unable to attend unless the intention is serve a summons (even then this might not be immediately effective.) Is it also intended that a legal representative who has heard part of the evidence with his client should have no say in his ability to attend? The existing practice seems eminently sensible. The part-heard Tribunal canvass availability dates amongst all the parties before adjourning, dates which will also suit Panel members. This also has the advantage of immediately complying with the case of H v SSHD (2003) UKHL 59.
(b) Issues raised in HQ2, may require further case management and, if appropriate, may include holding a telephone case management hearing.
We accept generally the usefulness of discussing potential directions and case management with either Tribunal Caseworkers or the Tribunal Judiciary. Indeed this happens at present. However, we do not think this justifies the role of the HQ2 Questionnaire. As we indicated before, issues can develop quickly in this jurisdiction with little warning and the potential time for such a telephone conference would be to deal with these when they arose. The indication of a lengthy hearing of one day or more, and/or reliance on a number of independent experts could, or course, be a reasonable foreseeable trigger for such case management.
(c) If necessary, all relevant persons (including the MHA, legal representative, Victim Liaison Representative etc) will be notified of any withdrawals, cancellations, postponements or adjournments, by a fast, appropriate and secure method of communication.
The most straightforward method of communication for most of our members would be either telephone or by fax; with perhaps more preferring email in the future. It is unclear what is intended here by this wording.
- Annex C Case Notification Letters
Given our concerns set out above, we are alarmed at the paragraph set out below:
- We have indicated above the undesirability, or impossibility, of completing most, or all, of the proposed questionnaire HQ2. However the clear implications here are that if it is not done then the applicant patient’s case will be prejudiced by the Tribunal refusing to allow expert evidence; refusing an adjournment or by forcing an unwilling (and perhaps severely unwell) patient to proceed with his case. In addition clear mention is made of a “wasted costs” order. Not only do we consider such an order would be completely inappropriate arising from one of the concerns that we have indicated above, but we were generally assured by previous senior Mental Health Tribunal judiciary, when the new Tribunal Rules were being considered, that such orders would not generally be employed against our members. This was on the basis of the appreciation of this jurisdiction and the kind of issues we have highlighted in this response.
We repeat, we fully accept the need for case management in this area of practice. We appreciate the need in particular to ensure:
(a) That Tribunal hearing dates are promptly set at dates that are generally convenient to all parties;
(b) That reports are served in time (including to Tribunal members);
(c) That reports comply with the existing Practice Directions for completeness;
(d) That delays in listing of a case, for any reason, are properly monitored;
(e) That, in complex cases, being particularly those that will occupy the Tribunal for longer than half a day, or have been subject to previous directions or adjournments, further case management be undertaken. This might include the service of skeleton arguments, and directions as to the cooperation of experts.
- However, we are firmly of the view that this case management can operate without the need of the proposed questionnaires HQ1 and HQ2. Indeed we think that the use of these questionnaires will be positively damaging for both the efficiency of the Tribunal and service provided to the parties, particularly the patient.
- With respect to the proposed HQ1, we have indicated that the present system, with proper case management monitoring, remains the most efficient way of identifying a convenient date. The use of the HQ1 creates unrealistic demands as to availability as well as potential delays in setting a date by requiring, inter alia, unreasonable requirements for service, as well as creating the possibility of further administrative error.
- As outlined above, in the case of the proposed HQ2, we consider that:
(a) Questions 1 to 6 can be covered by the general duty of representatives to contact the Tribunal if they consider a case will last longer than half a day.
(b) Representatives contact the Tribunal (as at present) as soon as they have instructions to withdraw a case
(c) Applications for any Directions are made as soon as the appropriate need arises.
(d) The requirement for an interpreter, as already identified on the Tribunal application, be subject to the general duty of the Tribunal, Mental Health Act Administrator and representative to coordinate together for the forthcoming hearing.
- It might be said that this Tribunal is one of the few of this size which does not have formal questionnaires to complete in this way. We hope we have shown why such a formal use of such questionnaires in this jurisdiction remains generally inappropriate, notwithstanding the need for appropriate case management when required.
- We would welcome the possibility to discuss further the issues raised in this response. We appreciate that we all have a common interest in wishing to deliver justice to some of the most vulnerable in our society as effectively and fairly as is possible.
Mental Health Lawyers Association
9th May 2010