Mental Health - July 2010
More reasons
And more money spent on lawyers? That’s what the new
appeal court seems to want
It is now possible to challenge decisions of
the mental health tribunal without going all the way to the High
Court. The new tribunal, which has taken over from the
much-loved Mental Health Review Tribunal (MHRT), is the First-tier
Tribunal of the Health, Education and Social Care Chamber (Mental
Health) (FtT). If that name recalls Jimmy Saville’s Old Record Club
– “That’s: open bracket, I Can’t Get No, close bracket,
Satisfaction” – so does the title of the new appellate court: the
Upper Tribunal (Administrative Appeals Chamber).
The Upper Tribunal (UT) is finally getting
into gear, and some of its early judgments are about the reasons
the FtT gives for its decisions.
Satisfactory reasons
In
the case of RH, the UT said those reasons were
perfectly adequate (RH v South London and Maudsley NHS
Foundation Trust (Restriction Order), 8 February 2010).
The FtT had refused to discharge RH from conditional discharge,
even though all the professionals, including his responsible
clinician and social worker, and an independent psychiatrist,
supported his case. The tribunal had formed a different, more
pessimistic view of the risk he continued to pose.
When considering RH’s appeal, the UT said
there is a difference between a case where the tribunal disagrees
with the clinical judgements of witnesses (where the explanation
will have to be more detailed) and one where the only disagreement
is as to the inferences to be drawn from those judgements. This was
an example of the latter case, where the tribunal need only give
sufficient reasons to show that it has directed itself properly as
to the law and had regard to the appropriate matters.
Is this the job of the
NHS?
Although this was sufficient to dispose of the
appeal, the UT was also concerned that neither the hospital nor the
Secretary of State had taken part in the proceedings. It said this
approach was understandable in the past, when MHRT decisions were
challenged by judicial review and the tribunal itself took the
lead. Now, however, the UT said it is “extremely unsatisfactory”
for hospitals (for example) to make no submission at all, for there
is “a public interest in appeals at this level being properly
argued”. Hospitals and the Secretary of State, the UT said, “have
an interest in the standards of adjudication in mental health
cases, [so] one might also expect them to take an interest in the
way mental health law is developed”.
This comment was not central to the case, but
it does raise a question that demands a response. And that response
might be another question: why? Why should the NHS shoulder
the burden – and the cost – of refining mental health law or, more
to the point, of correcting the manifold errors of the First-tier
Tribunal?
The second appeal came in the case of a
restricted patient who suffers from anti-social personality
disorder (DL-H v Devon Partnership NHS Trust and Secretary
of State for Justice, 12 April 2010).
A difficult case
The UT
acknowledged that this had been a difficult case: the statutory
definition of ‘mental disorder’ had changed between the evidence
being prepared and it being heard. The decision of the FtT was
nevertheless set aside, because it had not been properly
explained.
The FtT had decided not to discharge the
patient, either absolutely or conditionally, but the UT said its
reasons for doing so were inadequate. On the question of risk, for
example, the FtT had excluded the evidence of the patient’s expert
witness for a reason that was equally applicable to that of his
responsible clinician.
In general, the UT said that FtT reasons must
“at least” say what points the tribunal regarded as decisive, and
that they will have to be more detailed and more compelling if the
overall decision is a surprising one.
Appropriate
treatment
Then, the UT turned once more to peripheral
matters. It said that because of the way ‘medical treatment’ is
defined in the Mental Health Act, it is not hard to satisfy the
requirement that ‘appropriate’ medical treatment be ‘available’ for
the patient. But this means that a patient “may be contained for
public safety rather than detained for treatment”. To guard against
this danger, the UT said that the FtT “must investigate behind
assertions, generalisations and standard phrases”. Among the
questions it said should be asked, and that services and clinicians
can now expect to be asked, are: “what precisely is the treatment
that can be provided?” “What discernible benefit may it have on
this patient?” “Is that benefit related to the patient’s mental
disorder or to some unrelated problem?” “Is the patient truly
resistant to engagement?”
This tribunal didn’t even do that.
David Hewitt,
Partner
Weightmans LLP
The RH case may be found
here and and
the DL-H case here.