The Tribunal Procedure Committee drops unpopular proposals to remove Pre-Hearing Examinations and reduce oral hearings
Reform of the Mental Health Tribunal has been a rocky road, with the Tribunal seeking to save costs in the face of reducing budgets and increasing numbers of patients detained under the Mental Health Act (MHA).
Mental Health Tribunals are currently made up of three members: the judge, the medical member (MM) and the lay member. The MM is, in some cases, required to meet the patient in private before the hearing for a Pre-Hearing Examination (PHE). Our supporters tell us that these PHE’s are invaluable: the MM can take their own view of the patient’s condition as well as giving the patient an opportunity to discuss their application in a more open and less stressful environment.
In the last 5 years there have been a number of consultations on PHE’s, the composition of the tribunal and whether paper reviews should replace oral hearings:
- In 2014 the Tribunal Procedure Committee looked at abolishing PHE’s but concluded that they should remain for applications under section 2 (patients detained for short-term assessment) and opt-in for all others. It concluded: We are not persuaded that preliminary examinations should be abolished altogether.
- In 2016 the courts and tribunal services consulted on the composition of tribunals more widely, seeking to move towards having one judge as a default. Mind and many others responded to the consultation stating that the medical member is essential in the Mental Health Tribunal, where many of the questions, such as whether a person has a ‘mental disorder’, require an independent medical opinion.
The latest consultation paper, published in March 2018, proposed two changes:
- To make PHE’s opt-in for all patients, i.e., they would only happen in the patient specifically requested them.
- To have all automatic tribunals (those that take place because of certain triggers, e.g. recall from a Community Treatment Order or because it has been three years since the last tribunal review) dealt without an oral hearing but by a judge on the papers.
The response to this consultation was released in October. Thankfully, both proposals are being abandoned. On PHE’s 153 respondents opposed the change as opposed to 16 in favour. In particular, a number of medical members themselves opposed the changes, one stating:
‘I think the quality of scrutiny of the patients’ circumstances in the hospital in which they find themselves, and the assessment of the necessity and legality of their detention will be compromised.’
On paper hearings responses were again overwhelmingly negative. Respondents pointed out that those who are unable to make their own applications are some of the most vulnerable patients detained in hospital and therefore those that require the most oversight, not the least. As it stands a patient may only be reviewed by the tribunal every 3 years. A full hearing at the end of those 3 years is the absolute minimum safeguard.
The report concluded:
‘The TPC has given careful consideration to the responses. We of course afford great respect to the views of the Chamber President, the then Deputy Chamber President and Chief Medical Member. However, given the overwhelming response against any change, supported by cogent reasons and evidence of direct experience, the TPC is not persuaded that it is appropriate to make the proposed changes.’
Mind is hugely relieved that these proposals are not being taken forward and we hope that the overwhelmingly negative response will mean that there is some respite. The Mental Health Tribunal is of course under significant pressure with MHA detentions rising while budgets fall. But patients should not be the ones that are made to pay for this, many of whom will be detained because of a lack of good healthcare in the community. Patients need more safeguards, not less, and we eagerly await the final report of the Independent Review of the Mental Health Act.