This is the Report of a joint pilot project of the “Administrative Justice and Tribunals Council” and the “Care Quality Commission”. It is hot off the press -published in March 2011- and makes very interesting reading for all those involved in the Mental Health system, and is essential reading for Mental Health Lawyers. What makes it different from other studies and reports into the Tribunal system is that it turns the focus on the experiences of the Patients themselves who are of course the most important people in the whole process, yet so often their views are overlooked or disregarded.
The key points raised in the report are;
• Patients’ experiences of tribunals were diverse, ranging from positive to strongly negative.
• Those who received a positive outcome were, not surprisingly, much more positive of the system than those who received a negative outcome.
• Patients are not always well placed to ensure their lawyers are providing a good standard of advice and representation.
• Delays are a substantial factor in many patients’ negative experiences of tribunals.
• A large part of the distress caused by delays was due to a lack of information about timescales.
• The way pre-hearing medical examinations are carried out is very variable.
• Patients had positive experiences of some parts of the tribunal hearing, but there were concerns about the provision of information and access to reports.
• A significant minority said they were not given enough opportunity to be heard.
• Nearly all said they received a very rapid decision. However, follow-up
information was lacking and patients felt poorly informed of any further right to appeal.
Various recommendations are made in the Report regarding procedures and processes which might be changed. It is heartening to note that “most patients were satisfied with their lawyer’s preparation and performance”. Although very often problems with Tribunal hearings are outside our control, many of these points can be addressed by the lawyers who represent patients before such Tribunals. I am painfully aware that mental health lawyers are increasingly doing more work for less money, and have only a further pay cut to look forward to, but this is very important legal work involving the liberty of the individual, and if we are not prepared to do the best job that we can for our clients we should not be doing this sort of work. If we as lawyers are to learn from this report we must take the initiative in order to ensure a speedy and fair hearing, even if the ultimate responsibility for the particular issue falls with the Tribunal office, the Judge of the panel hearing the case or the Hospital involved. We must;
1. Take proper instructions and act on them; in a few cases the report found “lawyers appear to have fought for an outcome the patient did not want, contrary to the patient’s instructions, or had failed to obtain proper instructions”.
2. Prepare properly for the hearings, and ensure that those who represent patients are properly qualified and experienced.
3. Ensure that our clients are properly informed of what is going on in their cases and advised of the relevant time scales involved in the various different tribunal hearings, e.g. in section 2 cases, section 3 cases, and restricted cases.
4. Minimise any delays by actively chasing the Tribunal for listings. We should also chase reports so that we receive these in good time to take our client’s instructions on them before the hearing; this may require making applications for Directions regarding the reports.
5. Advise our clients about the pre-hearing medical examination by the medical member of the Tribunal. In particular, they should understand the reason for this meeting, and that the meeting is not “confidential” as the Tribunal panel will take the results of this examination into account at the hearing in deciding whether they should be discharged from section.
6. Advise our clients on the Tribunal procedure in advance of the hearing.
7. Ensure that our client’s have the option of access to their own copies of the reports prepared for the Tribunal. I find many clients actively do not want their own copies, for various reasons, but they should be aware that they can have these if they change their minds.
8. Do what we can to make the Tribunal hearing room as unintimidating for our clients as possible. For example, sometimes a number of “observers” will turn up on the day requesting to sit in the Tribunal. The Tribunal rooms are usually relatively cramped, and this may mean that the room becomes overcrowded and more intimidating for the client, and so it may be best for the observers not to attend. The Tribunal also can have a very rigid idea of where everyone should sit during the hearing, and this arrangement may not be the one which makes the client feel the most comfortable - ensure that your client is aware that they do not have to sit “where they are put” but that they can move elsewhere.
9. Ensure that you and your client have access to a private room where you can take instructions or simply wait before the Tribunal and whilst the panel are deliberating. Standing waiting in the corridor outside the Tribunal for the hearing to start does not ease anxieties about the hearing and is rarely helpful for your client.
10.During the hearing itself, ensure that your client is able to say all that they want to say. Tribunals sometimes allow the Responsible Clinician to waffle on until his or her heart’s consent, but then try to cut the patient’s evidence short; make sure your client is heard. Also advise that the “normal order” of the Tribunal proceedings (with the Responsible Clinician speaking first) is not set in stone, and sometimes it is better if your client, or indeed a different professional, goes first.
11.Ensure that the written reasons for the decision of the Tribunal are received within the relevant time frame (chasing if necessary) and that the client has their own copy of these, and that they understand the reasoning.
12.Ensure that your client understands their rights in relation to appealing the decision of the Tribunal, and also regarding making a further application to the Tribunal, and that they understand the difference between the two.
I know that if the Responsible Clinicians and other professionals prepare and submit their reports in time and the Tribunal office does its job properly etc, then these cases should proceed smoothly and fairly. However experience has shown that this does not always happen, and so we as lawyers must do all we can to expedite these proceedings, even if that means acting as a “watch dog” over the other parties involved, including the Tribunal itself.