In part 1 of this 2 part review of legal support for patients under the Mental Health Act I discussed the role of the solicitor in the representation of patients detained under the existing Mental Health Act 1983. In this second article in this series, I will discuss the implications of the proposed new Mental Health Act on legal support of the patient.

The expert committee (referred to hereafter as "the committee") set up by the Government to inform them in their review of the Mental Health Act recommended changing the process for the initial application of compulsory powers. The recommendation was that admission to assessment should continue to require a formal application by a suitably trained professional supported by a doctor with a specialist training in psychiatry and another medical professional. This one route of admission would replace the current situation where there are several routes of admission under the civil powers of the Mental Health Act 1983.

The proposal was that the new assessment process would apply initially for up to 7 days. The purpose of this initial period would be to assess the patient’s condition and to prepare and outline a care and treatment programme and, if felt necessary, to apply in writing to an independent reviewer for a Provisional Order. The independent review would not involve oral hearing, but would be scrutiny of written information as to whether the criteria for the use of compulsory powers has been fully met and whether there was a properly constituted care plan in place.

If the independent reviewer accepted the application then a 21 day Provisional Order would be issued. Therefore, the assessment and provisional treatment period would last for a maximum of 28 days. The committee went on to recommend that beyond the 28 day initial assessment and treatment phase, further compulsory care and treatment must be authorised by a new Mental Disorder Tribunal (MDT) at a full hearing which the patient would attend and at which oral evidence would be heard.

The independent reviewer is likely to be a lawyer of similar training as current Mental Health Tribunal (MHRT) President/legal members have. There would need to be a political commitment to finance, an increase in the numbers of legal members appointed, or the numbers of hearing at which legal members are required, since the proposals would ensure that every patient submitted to compulsory detention has a review of that detention, whether they apply for it or not.

The independent reviewer may also call for a full Tribunal hearing to be brought forward from the maximum 28 day period. The committee further recommended that a patient who wished to challenge the decision to use compulsory powers during the initial assessment phase should have the right to request an expedited Tribunal hearing at any time during the first 14 days assessment and treatment. The Tribunal would then be under a duty to hear that patient’s application within 7 days. An expedited Tribunal would have the same powers as the Tribunal that would have to sit at 28 days. It was envisaged that the expedited Tribunal would replace, not supplement the 28 day hearing.

The Department for Health, in their Green Paper on the reform of the Mental Health Act observed that, although they recognised that a lawyer with similar training to the current legal members of MHRT would be able to decide whether the process of admission and assessment had been properly applied at 7 days, they would not usually have the expertise to determine on the basis of the information that would be available after 7 days, whether or not the provisional care plan proposed for a particular patient was appropriate. I share the Government’s concern on that point and believe that the only way to resolve that issue is to ensure on-going training for legal members that reflects the training given to those members of a clinical team that would be assigned the task of contributing to the care plan. I do support an initial assessment period, but this will only have significance, in particular to black patients, if there is a concurrent right to independent advocacy and built-in requirement to take into account the views of the advocate in the initial assessment period. It is my belief that if the advocate is properly trained and aware of the issues surrounding interpretation of behaviour and diagnosis, there will be a safe-guard at an early stage in assessment of entry into the mental health system which is not currently available. Unfortunately, the Department of Health’s Green Paper would only commit to keeping under review the case for introducing a right to advocacy until such time as they have more evidence about the value of existing advocacy schemes.

If the MDT consider that continued use of compulsory powers at the end of the 28 day initial assessment phase is justified, they could determine, acting on the evidence before them, whether compulsory care and treatment should take place in an in-patient setting or elsewhere (such as in a registered care home or even the patient’s own home).

The MDT would be empowered to confer an order for continued treatment for up to 6 months initially. The MDT would have before it information from the formal assessment process and will need to scrutinise the proposed plan for continuing care and treatment. Therefore, unlike the current MHRT, it would not simply be considering whether the criteria for detention under the Act are met on the date of the hearing.

The committee suggests 3 models for the structure of the new MDT to replace the current MHRT structure of legal member, medical member (independent consultant psychiatrist) and lay member.

Legal Chair;

Psychiatrist – who does not conduct assessments;

One member with experience of mental health services;

An independent doctor with specialist qualification in psychiatry drawn from an approved pool to assess patient and report to the Tribunal.

Legal Chair

2 members with experience of mental health services;

Reference to a panel of doctors and access, where necessary to empower people with social care expertise;

Single person panel – likely to be a specialist lawyer.

Reference to a panel of doctors and access, where necessary, to a panel of people with social care expertise.

Current MHRT medical members combine the role of medical member of the Tribunal, expert witness and decision maker. They are the only members of the Tribunal that have medical note available to them. It is thought by both the committee and the Department of Health that the new MDT should not involve a medical member who assesses the patient.

With all these new proposed models, it should be borne in mind that there is a limit to the number of Tribunals at which each medical member can sit and this, combined with other clinical duties, has resulted in such a shortage of medical members that tribunals are routinely cancelled because of lack of availability of medical members. Any model that increases the demand on the consultant psychiatrist is bound to be impractical. The Department of Health in their Green Paper dismissed 1 as suggested by the committee and because of the reasons stated above, I agree that model would be unrealistic.

Model 2 provides for a pool of doctors who could have specific experience, (e.g. elderly mentally ill or forensic risk assessment) and this could help to ensure a fairer review of the detention. I would like to be included within such a pool of experts, psychiatrists acknowledged as having particular expertise in trans-cultural psychiatric issues.

Model 3 would require there be an increase in the number of lawyers available to become MDT legal members and, with such a model, there would have to be in-built training on the awareness of cultural issues which, remarkably, is still absent from the training of lawyers who will be representing patients under the current and newly proposed tribunals.

The Department of Health also propose an alternative model of a single person Tribunal as in the Committee model 3, with a discretion to bring in additional members and to refer the case to a panel of medical or social care experts. The legal member, it is envisaged, would use their discretion in contested cases, whereas in uncontested cases (the Green Paper states that under the 1983 Act only about half of the number of patients who were detained for treatment currently appeal to the MHRT) the single legal member would be able to conduct the review.

My concern with the Green Paper in general and the above proposals for assessment and review in particular, is that despite overwhelming evidence of the disproportionate numbers of Black patients in psychiatric units there is still no attempt to require specific training of mental health professionals to include (at minimum) awareness of the issues surrounding admission and diagnosis of treatment of Black patients.