Systematic Review of the Mental Health Review Tribunal

Published Date: 23 Apr 2018

A Systematic Review of the Mental Health Review Tribunal: Processes, Roles and Impact

1. What is the Mental Health Review Tribunal?

The Mental Health Review Tribunal is a collection of independent judicial bodies that aim to review the cases of suitable applicant patients who have been appropriately detained under the Mental Health Act 1983^[1]. Following strict guidelines and statutory criteria for discharge, collectively, members of the tribunal have the power to direct the discharge of applicant patients who satisfy the relevant discharge criteria. According to the official website of the tribunal (Mental Health Review Tribunal^[2]), its other principal powers are:

• To recommend leave of absence from employment or school as appropriate
• To recommend supervised discharge
• To recommend transfer to other hospital or relevant health care professional
• To issue directions regarding procedural matters
• To reconvene if any of their recommendations from a past Tribunal hearing is not complied with

In general, the Mental Health Review Tribunal serves as a safeguard against wrongful admission or unwarrantedly long detention (Wood, 1993^[3]). As such, they give detained patients access to an effective appeal mechanism in order to ensure, as far as possible, legal protection of their liberty. All this is carried out in accordance with the Human Acts Right.

There are five Tribunal offices in the United Kingdom (Mental Health Act 1983; Memorandum on Part V^[4]). Each region in England is operated under a separate MHRT and a separate Tribunal covers the whole of the country of Wales. Accordingly, there are five Tribunal offices that provide administrative support to the respective MHRTs.

The MHRT operates under the provisions of the Mental Health Act 1983 and the Mental Health Review Tribunal Rules 1983 (Her Majesty’s Stationery Office, 1983^[5]). The powers and duties of the Tribunals are as set out by the Mental Act 1983, subsequently amended in the ensuing policy document, the Mental Health (Patients in Community) Act 1995. The actual Tribunal process usually takes place in the hospital where the applicant patient is being retained, and is usually held in private, unless otherwise agreed by the patient in question and the members of the Tribunal.

The actual processes and review procedures of the Tribunal are defined in the Mental Health Review Tribunal Rules 1983 (Her Majesty’s Stationery Office, 1983); similarly, this has also been amended to a more current version.

Tribunal procedures and deliberations should always be carried out in accordance with the principles of the statutory instrument and the principles in which the other subgroups operate when considering Definitions, Guardianship and the Mental Health Commission under the Mental Health Act. These include:

• Non-discrimination
• Equality
• Respect for diversity
• Reciprocity
• Participation
• Respect for carers
• Least restrictive alternative and informality
• Respect for rights

All patients that have been detained under the Mental Health Act 1983 or that are eligible for guardianship or supervised post-discharge care have the fundamental right to appeal, i.e. to apply for a review by submitting an application to the Mental Health Review Tribunal, within the specified time limits as specified in the Mental Health Act. Furthermore, in order to ensure regular reviews of all cases, if the patient fails to make such an application the Tribunal, the appropriate body or personnel is obliged to make a referral of the case to the appropriate regional Tribunal. The party responsible for making this mandatory referral differs for various patients and depends on the restriction status of the patient (discussed further in section on types of patients):

• In the case of restricted patients, it is the responsibility of the Secretary of State for Justice to refer the case to the Tribunal
• In the case of non restricted patients, the onus falls on the hospital managers

In a review of Representing the mentally ill and handicapped (Gostin and Rassaby, 1980^[6]), the authors who are incidentally representatives of the National Association for Mental Health (MIND), highlights the unmet need for legal representation for applicant patients at Tribunal hearings of over 20,000 patients annually. However, as pointed out by John Hamilton (1980)^[7] of the Royal College of Psychiatrists, 90% of these patients are, in fact, on short term detention orders and remain as informal patients after the expiry of the said order. In fact, a great majority of patients are compulsorily detained only for very short period of times and (from 72 hours to 28 days) and may not be eligible for a review process during that limited amount of time (Rollins, 1980^[8]). As a result, the informal status of the applicant patient is very important because most of the hospitalised mental health patients in England and Wales are informal (Andoh, 2000^[9]). Thus applying one safeguard provided in the Mental Health Act 1983, less than 10% of mental health patients who are compulsorily detained have a statutory right of appeal from an independent Mental Health Review Tribunal.

In Gostin’s replying correspondence (1980^[10]), he revisits the Percy Commission, and emphasises the glaring discrepancies in expected and actual rates of Tribunal hearings. According to Gostin (1980), the Percy Commission envisioned that there would be approximately 8000­ – 9000 Tribunal hearing every year. However, in reality, there norm is a figure of about 750, with the maximum ever annual rate being 1515 hearings. As a consequence, most Tribunal members hear only one or two cases each year and thus do not have the opportunity to garner experience and familiarity with a diverse breadth of cases that would have been beneficial to improve future judgements. In the past two decades though, there has been a major increase in the number of applicants to the Tribunals (Crossley, 2004^[11]). In fact, as reported by Blumenthal and Wessely in 1994^[12], applications to the Tribunal rose dramatically in the 10 years between 1983 and 1993, with the figure approaching 10,000, i.e. almost a three-fold increase since 1984 and costing approximately 12 million pounds (£).

2. Mental Health Legislation

Mental health legislation in the Commonwealth countries is changing in some common law jurisdictions (Carney 2007^[13]). There is an increasing debate on whether it is, in fact, a health or legal issue and certain schools of thought question the need for special legislation in the present day. There is controversy over the non-therapeutic nature of criminal law, especially in its sentencing and penological aspects; can the inherent workings of law ever be adjusted to incorporate the perspective of therapeutic jurisprudence (McGuire, 2000^[14])? Furthermore, some critics also question the beneficial role of Tribunals or legal adjudication of the detention requirements. The very fact that the term ‘detention’ is used to describe the process of admission of these often vulnerable patients is probably evidence of the need for legal contribution. As mental health patients are frequently prone to violence and can be considered a risk to the public and themselves, it is evident that both disciplines of health and the law need to collaborate to achieve optimal long-term management of this population.

2.1 The Mental Health Act 1983

The Mental Health Act 1983 provides legislative guidance for the compulsory ambulatory assessment, care and treatment (i.e. the overall management in hospital) of patients with a mental disorder. In the Mental Health Act document mental disorder is defined as “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”. As an amendment from the Mental Health Act 1959, the 1983 policy document requires that in order for a patient to fall within the criteria for ‘severe mental impairment’ or ‘mental impairment’, the patient in question has to be associated with abnormally aggressive or seriously irresponsible behaviour (Singh, 1984^[15]). This definition excludes an appreciable amount of severely impaired or impaired mental health patients that are neither ‘abnormally aggressive’ nor ‘seriously irresponsible’, and thus these equally vulnerable patients remain unprotected under the amended Mental Health Act 1983.

Thus it would appear that the definitions of, under the Mental Health Act 1959, of severe mental subnormality and mental subnormality would be more considerate and fair towards such patients, as it certainly encompassed in the definition the vulnerability of this mental health patient population (Singh, 1984). In part, the Act states that, ‘severe subnormality being of such a nature or degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation or will be incapable when of an age to do so," and in the case of mental subnormality "of a nature or degree which requires or is susceptible to medical treatment or other special care or training of the patients’.

Thus the recommendations outlined herein in this document apply not only to patients suffering from ‘more violent mental disorders’, but also vulnerable patients who may find it difficult to express their various needs, or who in some extreme, cases, may not even recognise that they need specialist help. It has been proposed that mental health should be given the same priority as physical health (Kmietowicz, 2005^[16]). Application of the 1983 Act should also take into consideration exclusions from the definition of ‘mental health’, as set out in Section 1 (3) of the Act. This section of the policy document states that a person should not be treated under the provisions of the Act, if they are suffering from mental disorder purely by reason of promiscuity, other moral conduct, sexual deviance or substance misuse, including dependence on alcohol or drugs. However, the Act recognises that such behavioural problems as listed above may be accompanied by, or associated with, mental disorder, and as such should be overlooked in its entirety.

Real life experience apparently shows that the Act is usually fully implemented with appropriate communication and collaboration between the various disciplines involved (Ourashi and Shaw, 2008^[17]). A recent of judicial practice and assessment of risk to the public in detained individuals, based on Sections 37/41 of the Act, showed that, in addition to the primary need to protect the public, an additional and almost equally important intention was to ensure compliance with both after-care services and medication. In the study sample, which was made of 12 judges from crown courts in England, it was found that restriction orders were rarely made contrary to the recommendations of the affiliated medical practitioner.

It is worthy of note to consider that the recent Mental Health Act of 2007 have introduced some important modifications to core recommendations and standard roles and responsibilities of mental health practitioners (Kousoulou, 2008^[18]). These amendments perhaps gain even more importance when we consider the revolutions that have occurred in psychiatry since the original Mental Health Act 1983 was implemented. Of particular importance, is the notion in 1983, that there was no link between mental illness and violence which has now since been proved invalid (Monahan 1992^[19]). From October this year (2008), the Mental Health Act 2007 will be fully implemented in the procedures associated with the Mental Health Review Tribunals.

2.2 The Mental Health Act 2007

Amendments to the 1983 Mental Health Act policy document in the Mental Health Act 2007, which are directly related to any aspect of process of the Mental Health Review Tribunal and outlined topline below (Office of Public Sector Information, 2007^[20]):

1. Removal of categories of mental disorder: the key definition of ‘mental disorder’ is amended from that which is outlined in Section 1 (2) of the 1983 Act. For the definition of ‘mental disorder’ and mentally disordered’, substitute ‘mental disorder’ means any disorder or disability of the mind; and ‘mentally disordered’ shall be construed accordingly’. In addition the following statements are omitted in the recent amended version:
   1. Those of ‘severe mental impairment’ and ‘severely mentally impaired’
   2. Those of ‘mental impairment’ and ‘mentally impaired’
   3. That of ‘psychopathic disorder’
2. Amendments to the section on the Mental Health Review Tribunal include specific issues related to:
   1. Patients absent without leave
   2. Duty of hospital managers to refer cases to the Tribunal
   3. Power to reduce periods under Section 68
   4. Restriction orders: in relation to restricted patients
   5. Conditionally discharged patients subject to limitation directions

2.3 The importance of making the right decision

There have been reported cases of mental health patients who commit suicide within a mere 12 months of contact with mental health services. For example, in a national clinical survey that was carried out in England and Wales, over 2,000 mentally impaired suicide victims had had previous contact with mental healthy services in the year before (Appleby et al, 1999^[21]). A review by mental health teams concluded that suicide could have been prevented in more than 20% of these cases. In conclusion, the researchers made logical recommendations for suicide prevention measures in mental health services, including strategies to improve compliance and sustain contact with the appropriate mental health services. In addition, there is also the additional threat to the innocent people of the public.

The perceived threat of mentally disordered patients, who have been released from detention, to the public has been explored severally (Norris, 1984^[22]; Buchanan, 1998^[23]; Jamieson and Taylor, 2002^[24]). In fact, several years ago, in New Zealand, there was a controversial case of a mental health patient who committed murder six hours after being released from detention (Zinn, 2003^[25]). Interestingly, the said patient was found not guilty of the murder by reason of mental illness. Furthermore, the patient was awarded compensation of the value of £300,000 after he sued the health authority for failing to detain him as an involuntary patient under the Mental Health Act. As such, it is evident that there are many incentives here for ensuring that the right intervention is applied to the right patient.

3. Members of the Tribunal: The Relevant Stakeholders

Essential members who must be present at each Tribunal hearing are (Mental Health Review Tribunals website) include:

• The regional chairmen
• A legal member
• A medical member, and
• A lay member

For each geographic region, the Lord Chancellor makes appointments and decides who sits on the different panels. For the other members other than the legal member (i.e. the medical and lay members), the Secretary of State for Health, for cases in England, and the Secretary of State for Wales, for cases in Wales, are also consulted in the decision making process.

Each member has a specific and individual role in the co-ordination of the Tribunal hearing. In addition to the essential Tribunal members outlined above, there are other stakeholders involved in the long-term process of the review process. These could be private non-governmental organisations, such as the National Association for Mental Health (MIND). Whether these members are salaried or not is usually discretionary, but the norm is that there is no salary payable, but that members receive an attendance fee and travel and subsistence allowance. On the contrary, the Tribunal chairman is a salaried role.

3.1 Role of the regional chairman

A regional chairman is appointed for each of the two Tribunal regions in England: the North Region and the South Region, which are conveniently based in Manchester and London, respectively. The roles of the regional chairman of the Tribunal are multi-factorial and include (Mental Health Review Tribunals website):

• The regional chairman appoints specific members to particular Tribunal hearings
• The regional chairman has the responsibility of ensuring that all the statutory requirements are complied with, making judicial decisions and giving necessary direction a timely and fair decision is reached in each and every case
• The regional member is also responsible for organising training for the members of the Tribunal to ensure that all members have the updated skills and knowledge that would be necessary to effectively carry out their individual roles
• It is the role of the regional member to oversee the appraisal mentoring scheme of the members of the Tribunal, thus highlighting training needs (see point above) to continually improve the review process
• The onus also falls upon the regional chairman to handle any complaints about the conduct of any members of the Tribunal, or to refer the case to higher authorities if warranted

3.2 Role of the legal member

The legal member, more often than not, presides over the Tribunal hearings. Legal members of the Tribunal are usually elected or appointed on the basis of their specific expertise in the particular area of jurisdiction (Ferres, 2007^[26]). They are required to “have such legal experience, as the Lord Chancellor considers suitable” (Department for Constitutional Affairs, DCA^[27]). In addition, interpersonal skills and a good understanding of the health system are crucial as fundamental qualifications of the Tribunal legal member. The official website of the Mental Health Review Tribunal provides relevant specific information on the requirements of becoming a legal member and outlines the roles of the legal members as:

• The legal member acts as President of the Tribunal. Revisiting the primary role of the MHRT, which is to review the legality of the applicant patient’s detention in hospital and to direct the discharge of those to whom the statutory discharge criteria apply; and to safeguard the patient’s fundamental human right to be free from unjustified hospital detention (Richardson and Machin, 1999^[28]), it is evident that this process is essential a legal one. It is thus only logical that the Tribunal be presided over by a member of the legal profession.
• In addition, the legal member of the Tribunal has the responsibility to ensure that the proceedings of the review process are carried out in a fair and balanced manner.
• The legal member is also responsible for ensuring that the legal requirements of the Mental Health Act are properly observed
• The legal member of the Tribunal also has the role of advising and addressing any questions of law which may arise before the hearing, during the hearing and during the deliberation discussions with the other members of the Tribunal
• In collaboration with the medical member and the lay member of the Tribunal, the legal member is also responsible for drafting the reasons for the reached decision, and for endorsing the record of the agreed decision

One of the major that the legal members of the Tribunal face is the danger that the medical member could dominate what must essentially be a legal process (Peay, 1989^[29]).

3.3 Role of the medical member

As stated above, a medical practitioner is one of the necessary members of the Tribunal and their role, though clearly invaluable, is fraught with opposing views from the multidisciplinary stakeholders in the field. In 2000, Gibson^[30] proposed that the role of the medical member was introduced in the 1959 Act to make the process of medical notes review less arduous “without ruffling medical feathers”. However, according to Prins (2000^[31]), the origin of the required disciplines to sit in Tribunal hearings is much more complex than that, as there were conflicting views that arose during the parliamentary debates leading up to the 1959 Act, as to who was best suited to make that all-important decision regarding the patients’ release or continued detention. It is worthy of note, here, that in those early legislative days, the commonplace law was one which involved a purely judicial decision, which probably explains the disinclination to acknowledge the need for a medical aspect in the decision making process.

The medical member could be the patient’s treating psychiatrist, a nurse or any other member of the mental health team. According to the Mental Health Review Tribunal website (Mental Health Review Tribunal), the medical member is customarily a consultant psychiatrist with several years of extensive experience who is able to advise other members of the Tribunal on any relevant medical matters that should be taken into consideration in the patient’s review.

There is evidence that the dual role that is expected of medical practitioners on the Tribunal is a potential barrier to having the fairly balanced and effective hearing that is the main objective of the review or appeal process. As with the legal member and all other members of the Tribunal board, interpersonal skills and a good understanding of the relevant health system are important for all Tribunal members (Ferres, 2007). In addition to this fundamental criterion, Ferres (2007) emphasises the dilemma that is brought upon the medical member as a direct consequence of his/her role as a medical practitioner and a sitting as part of the Tribunal.

According to the official website of the Mental Health Review Tribunal (Mental Health Review Tribunal), the basic roles of the medical member of the Tribunal can be categorised as outlined below:

• Medical role: this member is required to carry out an examination of the patient before the hearing and, in so doing, make any necessary interventions – or simply make any necessary steps – that could potentially aid the decision making process in forming an opinion of the patient’s mental health condition. This is clearly in accordance with Rule 11 of the Mental Health Review Tribunal Rules (Her Majesty’s Stationery Office, 1983), which requires the medical member of the Tribunal to “at any time before the hearing…examine the patient and take such other steps as he (or she) considers necessary to form an opinion of the patient’s mental condition”.
• Judicial role: the medical member, together with the other members of the Tribunal, have a judicial responsibility to decide the patient’s fate, in terms of if the patient could still represent a danger to self or others and should thus remain in detention, or if the patient is suitably fit to be released into the public domain.

Researchers in the past have shown that the duality of their roles on the Tribunal need not lead to knowledge bias, which could cause a flawed opinion (Langley 1990^[32]; Brockman B; 1993^[33]). However, in drastic contradiction to this, some more recent opinions expressed by critical schools of thought believe that the dual nature of the expected medical member’s role is a possible barrier to open-mindedness (Gibson, 2000; Richardson and Machin, 2000^[34]). The, somewhat logical, fear is that doctors’ judicial opinions of patients’ eligibility for release would undoubtedly be swayed by findings from their preliminary observations and assessments. Apparently, for the review process to be carried out fairly, medical members of the Tribunal should strive to make their decisions based only on reports, evidence and witness and patient reports that presented to them during the Tribunal hearing. As such, any details divulged by the patient prior to the Tribunal hearing should not be considered as evidence and must not be taken into account. Similar to this notion, the Law Reform Committee, in 1967, recommended that a doctor should not be compelled to give evidence of issues that he may have had access to with the patient that have no bearing on the patient’s mental or physical health (Law Reform Committee, 1967^[35]).

Putting it logically, general human nature may well be a barrier to such sentiments. Having conducted an examination of the applicant patient, and presumably consequently forming a clinical opinion, the medical member of the Tribunal is expected to morph into a decision making member to attend the review hearing. As the Council of Tribunals have very aptly described it, the medical member is “effectively a witness and a member of the Tribunal, deciding the validity of his own evidence” (Council on Tribunals, 1983, paragraph 322^[36]). The unanswered question, thus, is: how can the medical member be expected to detach his previous medical knowledge of the said patient from evidence that is presented in the Tribunal and remain objective in his opinions and, if this distinction is necessary, does the inherent benefit of the preliminary assessment then become invalid? These questions also corroborate the idea of the protection of the doctor’s professional confidence unavoidably conflicting with the interest of justice (No authors listed, 1967^[37]).

However, in his correspondence to the editor of the British Journal of Psychiatry, Gibson (2000) stresses the inherent advantages of the preliminary examination prior to the Tribunal hearing. The main benefits are outlined below:

• The preliminary examination session gives the medical member a chance to review the applicant patients’ clinical notes which may contain crucial data and clinical findings that are omitted from the reports
• The preliminary examination session also prepares the medical member to ask the most appropriate questions at the hearing, thus ensuring that the benefits of the review process is optimised

Furthermore, Gibson (2000) has suggested that, in order to eliminate the potential prejudice that could accrue from the preliminary assessment and the associated disadvantage of the often time consuming nature, that the applicant patients’ notes should be made available to all of the Tribunal members in the half hour before the Tribunal hearing is scheduled to take place, thus dispensing with the need for the historical preliminary examination. The limitations of this proposal, as succinctly put forward by Prins (2000) are two fold:

• As we all know from our practical clinical experience, in many cases, medical notes are too voluminous and complex to do a proper review in half an hour. In some cases, it would take days to form an understanding of the contents of such files.
• Also, the feasibility of medical notes review by all members of the Tribunal is doubtful. Without a certain degree of medical expertise, it would be near impossible for the two non-medical members of the Tribunal to comprehend the contents of the applicant’s patients’ medical notes. This would then necessitate the additional step of medical interpretation for the benefit of these members, leading to longer duration of the review process, and thus, increased costs and burden on the health system.

3.4 Role of the lay member

According to the official Mental Health Review Tribunal website, the lay member of the Tribunal serves to provide some form of balance to the Tribunal as a representative of the community outside the dominating, and often clashing, legal and medical professions. Normally lay members would have a background or practical experience of working in the health and welfare field in the National Health Service, voluntary organisations or private health sector. The lay member may also be experienced in social services on administration (Lodge, 2005^[38]).

4. Other stakeholders involved in the Mental Health Review Tribunal

4.1 Legal representation for the mental health patient

In addition to the legal member of the board, legal representation is usually advised for the patient. A legal representative can be useful to explain the law to the patient and help to protect his or her best interests (Mental Health Review Tribunal website). As a matter of circumstances, the mental health patient’s handicap or mental illness, coupled with the possible effects of having been institutionalised and various antipsychotic medications, make self-advocacy invariably difficult (Gostin, 1980).

These patients do, however, have the right to choose to represent themselves; nevertheless, this option is not advisable. Furthermore, Larry Gostin of the National Association for Mental Health (MIND), in London, goes on to convincingly justify the need for legal representation for the mental health patient. Patients who attend the Tribunal without legal representation are frequently denied access to the full reasons for his confinement and subsequent decision, and medical and social reports pertaining to his or her case may be withheld from the patient as confidential (Gostin, 1980). When a legal representative is involved and present during the hearing, he or she is party to all relevant documents and can share the information with the client (in this case, the mental health patient). Another even more important advantage of having legal representation is the ability of such a legal professional to examine provision in the community for housing, care and support.

Thus as highlighted above, the benefit of legal representation for the mental health patient in the Tribunal cannot be overemphasised. This calls to question the ethics of the preliminary examination session, during which the vulnerable mental health patient is examined by the medical member of the Tribunal towards forming an opinion of his or her mental condition. Invariably, the findings of such an assessment would almost unavoidably influence the outcome of the Tribunal decision. Yet, in practice, as the context of this session is clinical, the patient has no form of legal representation present (Richardson and Machin, 2000).

4.2 Nearest relative

The applicant patient’s nearest relative could also attend the Tribunal hearing, if the applicant patient wishes, to provide a familiar face for the patient. The nearest relative is normally the relative that comes first on a list of relatives set out in the Mental Health Act, e.g. spouse, child, parent etc. The nearest relative has a number of specific rights and powers under the Mental Health Act 1983, and as such it is of utmost importance to choose an appropriate relative. The applicant patient’s legal representative or the hospital staff can provide valuable assistance in identifying the relative who is, in fact, the nearest relative.

Section 26 of the Mental Health Act sets out direct guidance on who an applicant patient’s nearest relative should be. It is important to note that the nearest relative is not necessarily the ‘next of kin’. Using the list below as a guide, the nearest relative would be that person who is nearest to the top of the list, for example a spouse would come before a child, parent or sibling, in that order. If the applicant patient has two or more relatives of equal standing, the elder or eldest of the relatives in that category takes precedence. Furthermore, full blood relatives take precedence over half relatives of the same category. The list below shows the relevant hierarchy for identifying the nearest relative:

• Spouse (husband or wife)
• Child (son or daughter)
• Parent (father or mother)
• Sibling (brother or sister)
• Grandparent
• Grandchild
• Uncle or aunt
• Nephew or niece
• Someone, not being a relative, with whom the applicant patient usually resides with, and has done so for at least five years

Within the Mental Health Act 1983, the following people are not eligible to be the applicant patient’s nearest relative:

• People under 18 years old, unless they are the applicant patient’s husband, wife, father or mother
• Divorced partners or husbands or wives who have deserted the applicant patient
• People who are not normally resident in the United Kingdom, the Channel Islands or the Isle of Man

The rights and powers of the nearest relative are outlined below:

• Powers concerning admission to hospital under the Mental Health Act 1983:
  • The nearest relative has the power to apply for the patient to be admitted into hospital, i.e. sectioning under Sections 2 and 3 of the Mental Health Act 1983. In order for a patient to be admitted under Sections 2 and 3, two medical recommendations from two different doctors must be made, after which the nearest relative or the Approved Social Worker (ASW), preferably an ASW, can then make the application.
  • If the ASW makes the application, Mental Health Act 1983 states that, if practicable, the ASW must inform the nearest relative under Section 2.
  • The nearest relative must be consulted, and must concur before an ASW can apply for the patient to be admitted under Sections 3 and 7 of the Act. In this case, the Court can make an order to displace the nearest relative on four grounds of the Mental Health Act 1983 (Section 29), including unreasonable objection to the making of an application for admission under Sections 3 and 7. However, research has found that the process of achieving displacement of the nearest relative is often very difficult and is commonly associated with ethical dilemmas (Shah, 1996^[39]). Based on a case in elderly coupled who had been married for 50 years, Shah (1996) proposes that improvements to the Mental Health Act 1983 to avoid present delays and to ensure that certain necessary financial safeguards are in place. Furthermore, a more recent paper by Moore (2005^[40]) proclaims that under current law the right to change the nearest relative is weighted in favour of psychiatrists.
    • Powers concerning discharge of the patient: the nearest relative has the power to discharge his or her relative from detention under Sections 2 and 3, giving at least 72 hours notice and ensuring that the notice is served to the authorised person. In addition, the nearest relative has the power to apply to the Mental Health Review Tribunal regarding discharge of an applicant patient who has been detained by a criminal court Section 37 of the Mental Health Act 1983.
    • Planning for after care: the nearest relative must be given an opportunity to be involved in the after care plans for the applicant patient as he or she (the nearest relative would most likely be intricately involved in direct care of the applicant patient on discharge.
    • Right to information admission and discharge: Under Section 132 of the Mental Health Act 1983, hospital managers are under a duty to disclose certain details of information to the patient or the nearest relative, if the patients is in agreement.
    • Right to be informed about supervised discharge: the ‘supervised discharge powers’ in Sections 25A – J of the Mental Health Act 1983 state that when an application for supervised discharge is made, the nearest relative must be consulted unless the patient objects.

Under Section 29 of the Mental Health Act 1983, an application to appoint an acting nearest relative can be made by any relative of he person concerned, anyone with whom the applicant patients was residing with prior to admission and an ASW. In addition, the actual nearest relative can give a written authority for another person to act as the nearest relative.

Like with most aspects of mental health, the concept of the nearest relative has come under attack by some schools of thought. Andoh and Gogo (2004^[41]) argues for this key stakeholder to be retained with variations that avoid violation of the European Convention on Human Rights and the Human Rights Act 1998. There is potential for links with advanced directives in mental health care and, as such, tensions arising between the nearest relative and the ASW and sometimes, legal practitioners should be addressed to improve the present law (Andoh and Gogo, 2004).

4.3 Approved Social Worker (ASW)

Under Section 12 of the Mental Health Act 1983, it is required of the relevant local social service authority to independently appoint a sufficient number of social workers with special knowledge of people suffering from mental distress. The ASW should ensure that his or her working practices strive to uphold the judicial requirements of the Mental Health Act 1983, and effectively comply with all relevant safeguards. As such, the applicant patient’s civil liberties must be protected by the mandated procedures.

For example, to detain a patient under the Section 3 of the Mental Health Act 1983, the ASW must comply with the provisions that are clearly set out subsequently in the policy document in Section 13 of the Act (Sinclair, 1983^[42]). This section requires that in interviewing the applicant patient, the appointed ASW must employ ‘suitable’ techniques and that he or she must be entirely satisfied that detention in the hospital would be, in all the circumstances of the case, the most appropriate and least restrictive alternative for providing effective care and medical treatment according to the applicant patient’s needs. Interviewing the patient in a suitable manner involves taking into consideration any hearing or linguistic difficulties the patient may have. In order to satisfy him or herself that detention is the most appropriate way to care for the patient in question, the ASW is required to consider all aspects of the patient’s case, including past history of the patient’s medical disorder, his or her present condition and the social, familial and personal factors that could have any impact on it, the wishes of the patient and his or her relatives, and most certainly, medical opinion.

Furthermore, Section 14 of the Mental Health Act requires implicitly that, when a mental health patient is admitted to hospital following an application made by his or her nearest relative, a social service report must be submitted, as soon as is possibly practicable. Ideally, this document would provide an extensive report of the social circumstances provided by the relevant Social Services department for the area in which the said patient resided in the period of time immediately before his or her admission. The ASW would also, indubitably, be involved in preparing such a document.

An ASW must have regard to any recent decision, by the Mental Health Review Tribunal, pertaining to the discharge of an applicant patient from detention. However, regardless of whatever the outcome of the Tribunal’s decision making, the ASW still retains the duty to make an application for the applicant, if the provisions of Section 13 are satisfied (R v South Western Hospital Managers, ex p. M. [1994] 1 All E.R. 161 in Mental Health Act 1983 Memorandum on Parts I^[43]).

4.4 National Association for Mental Health (MIND)

There is also the role of patient advocacy groups like the National Association for Mental Health (MIND) in upholding the rights of mental health patients. As a vulnerable patient population, these individuals are often targets of abuse, discrimination and general unfair treatment from the public. MIND works to ensure that mental health patient do not experience any discrimination on account of excluding categorisation or labelling (MIND Equalities Statement April 2006^[44]). It is the mission of MIND to continuously challenge any such discrimination and campaign for better mental health often in the face of adversity.

One of the core objectives of this organisation is to positively influence, as much as possible, mental health policy in the best interests of mental health patients, who these policies aim to serve and protect in the first instance. The organisation tries to use its considerable influence to ensure that issues relating to mental health needs are addressed effectively and in a fair and timely manner.

4.5 Judicial Head

The Council of Tribunals, which serves as an auditor of sorts of Mental Health Tribunals, constantly deplore the continued lack of a central, judicial Head to provide ‘the necessary degree of leadership and direction which a significant tribunal system of this kind requires’ (Council on Tribunals, 2000, section 2.1, paragraph 1^[45]). While, there is an appointed legal member of every Tribunal to preside over individual hearings, there is bound to be considerable inconsistency arising from having different Regional Chairmen without a national President or Chairman appointed as the Head of the Tribunal system.

Although the concept of the Judicial Head is as yet a proposed idea, roles and responsibilities of this key projected Tribunal player have been clearly outlined by the Council (Council on Tribunals, 2000, section 2.3, paragraph 1). These proposed duties are outlined below:

• The Judicial Head would have overall responsibility for general judicial management
• The Judicial Head would be responsible for monitoring the effectiveness and performance of the Tribunal processes
• The Judicial Head would also be responsible for developing essential training programmes for all Tribunal members: chairmen, members and clerks, as required
• The Judicial Head would be responsible for providing some sort of central direction to the Regional Chairmen and, essentially, the Tribunal as a whole
• The Judicial Head can also be responsible for appointing, or advising on the appointment of, Tribunal chairmen, members, clerks and other administrative staff
• The Judicial Head should also strive to co-ordinate and communicate similar homogenous tribunal types in order to cultivate a sense of corporate identity and team spirit
• The Judicial Head would also be the overall voice of the Tribunal, acting as spokesman for the Tribunal and forming a focal point for inter- and intra-communication between different members of the Tribunal, and between the Government and the Tribunal
• The Judicial Head can also make interlocutory decisions and provide much needed guidance to Tribunal members on myriad issues, such as the allocation of cases and other practical matters in which consistency across different Tribunal hearings is required

In their proposal for a Presidential Model for the new Tribunal to replace the historic Mental Health Review Tribunals, the Council on Tribunals suggest that the Judicial Head sometimes be responsible for both judicial and administrative functions, including resource management.

4.6 Tribunal clerk

Another cause for concern in the running of Mental Health Review Tribunals, according to the Council on Tribunals, is the absence of tribunal clerks at Tribunal hearings (Council on Tribunals, 2000, section 2.5, paragraph 1). This avoidable glitch in the Tribunal processes places a significant additional burden on the other key Tribunal members who have to stand in for the absent clerk, thus neglecting their own essential duties. Tribunal members should be encouraged to carry out their own legal and medical roles (as the case may be), and should not ever be compelled to undertake the functions of a tribunal clerk.

The role of tribunal clerk could vary significantly between different tribunal systems. Essentially, a non-exhaustive list of some typical roles of the tribunal clerk is presented below:

• The tribunal clerk is responsible for matters such as receipt of appeal applications, general correspondence with the applicant patient or representative
• The tribunal clerk is also responsible for arranging and notifying the time and place for the Tribunal hearing
• The tribunal clerk also provides valuable administrative support to the Tribunal on the day of the hearing by making sure that the everything in the hearing room is set up correctly, meeting appellants and advising on procedure and notifying interested parties of the Tribunal’s final decision
• The tribunal may also draft the report of the proceedings as well as the note of the decision for endorsement by the Chairman or President

Another often practised, but highly controversial role of the tribunal clerk is monitoring the performance of the medical member (Woolf, 1999^[46]). In addition, the tribunal clerk, together with the Regional Chairman, plays a contributory role in the appointment or three-year renewal of medical membership through a secret confidential recommendation or a vetoing process (Woolf, 1999). Critics question the logic behind having a lesser member, like the Tribunal clerk, to monitor on the activities of a highly esteemed member like the medical representative, in some cases even having a say in his or her appointment and dismissal.

Generally, overall Tribunal administration is the responsibility of the Secretary of State for the Ministry of Justice, e.g planning resources, meeting the expenses and providing accommodation (Mental Health Review Tribunal website). In England, the Secretarial offices in London are chiefly responsible for the administration aspects of running the Tribunal. In Wales, the onus falls on the Welsh Assembly, and administration is carried out at the Secretariat office in Cardiff. Sometimes, in cases of detained restricted patients, the Home Office may have a role to play.

5. The Mental Health Review Tribunal and its processes

5.1 When can a patient apply?

In the case of patients detained under Part II of the Mental Health Act, i.e. patients not involved in criminal proceedings, who are in hospital that are subject to guardianship or after-care under supervision, these patients or indeed their nearest relative may apply to a Mental Health Review Tribunal as outlined below, depending on their status in terms of detention status and reclassification status (Mental Health Act 1983 Memorandum on Parts V):

• In the case of patients detained under Section 2, the applicant patient may apply to the Tribunal in the first 14 days of detention. The nearest relative is not eligible to apply
• In the case of patients detained under Section 3, the applicant patient may apply to the Tribunal in the first six months of detention. The nearest relative is not eligible to apply
• In the case of patients reclassified under Section 16, either the applicant patient or his or her appointed nearest relative may apply to the Tribunal, provided that the application is made within 28 days from being informed of the report by the Responsible Medical Officer (RMO). The RMO is defined under Section 34 as the doctor in charge of treatment for the patient. Section 16 provides for the reclassification of a patient who is detained for treatment under Section 3, or is subject to guardianship under Section7
• In the case of patients received into guardianship, the applicant patient can apply to the Tribunal in the first six months of guardianship. The nearest relative is not eligible to apply
• In the case of patients transferred to hospital from guardianship, the applicant patients can apply to the Tribunal in the first six months of detention in hospital. The nearest relative is not eligible to apply
• In the case of patients in whom their detention or guardianship is renewed, the applicant patient can apply to the Tribunal at any time in the period for which detention or guardianship is renewed. The nearest relative is not eligible to apply
• In the case of patients in whom the RMO has barred a relative’s discharge under Section 25, the nearest relative may apply to the Tribunal in the first 28 days from the time they are informed of the report by the RMO. In this case, the patient is not eligible to apply
• In the case of patients whose nearest relative has been barred from acting as such by the Order of County Court under section 29, the nearest relative can apply to the Tribunal in the first 12 months of receiving the Order and, subsequently, once in each 12 month period for which the Order is still in force. In this case, the patient is not eligible to apply
• In the case of an absconded patient for whom detention or guardianship is renewed under Section 21B, the applicant patient may apply to the Tribunal at any time in the period for which detention or guardianship has been renewed. The nearest relative is not eligible to apply
• In the case of patients who are reclassified under Section 21B, the applicant patient can apply to the Tribunal in the first 28 days of being informed of the report. The nearest relative is not eligible to apply
• In the case of patients making an application while undergoing after care under supervision under Section 25F, either the applicant patient or the nearest relative can apply to the Tribunal, with the proviso that the application is made within six months of application being accepted
• In the case of patients who are reclassified under Section 25F, either the applicant patient or the nearest relative can apply to the Tribunal, with the proviso that the application is made within the first 28 days of being informed of the report
• In the case of patients making an application while undergoing after care under supervision under Section 25G, either the applicant patient or the nearest relative can apply to the Tribunal at any time during the further period of after care under supervision

In each of the stipulated cases outlined above, only one application can be made in the specified period, i.e. it is not permissible for both the applicant patient and the nearest relative to make applications for the same instance.

When it comes to patients who are detained under Part III of the 1983 Act, different considerations apply. Patients detained under Part III of the 1983 Mental Health Act are patients that are involved in criminal proceedings. In this case, patients have the right to apply to the relevant Mental Health Review Tribunal only within the first six months of the time of detention, and only if they fall into one of the following categories:

• If the applicant patient has been placed under guardianship order. Under Section 8 of the Mental Health Act 1983, placing a mental health patient under guardianship enables the appointed guardian to exercise some certain powers. The guardian could be a relative or social worker, and this person could help the patient to manage in the community, instead of being admitted into hospital
• If the applicant patient was originally detained subject to a restriction order, and still remains in hospital after its expiry as if subject to a hospital order made on the date the restriction order expired
• If the applicant patient was originally detained under the 1986 Northern Ireland Mental Health Order^[47], and was subsequently transferred to a hospital in England or Wales under Section 82 of the Mental Health Act
• If the applicant patient was originally detained under mental health legislation in the Channel Islands or the Isle of Man and was subsequently transferred to a hospital in England or Wales under the relevant country’s legislation
• If the applicant patient was originally detained under the Scottish Mental Health Act 1984^[48], and was subsequently transferred to a hospital in England or Wales under Section 77 of the Mental Health Act
• If the applicant patient was admitted to hospital under an order made under Section 5 (1) of the Criminal Procedure (Insanity) Act 1964 as substituted by Section 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991
• If the applicant patient was admitted to hospital under Section 47 of the Mental Health Act 1983
• If the applicant patient was admitted to hospital under Section 48 of the Mental Health Act 1983
• If the applicant patient was admitted to hospital under an interim hospital order. Under Section 38 of the Mental Health Act 1983, the courts can make an interim hospital order to assist both the courts and the hospitals in determining whether it is appropriate to make a hospital order or a hospital direction in respect of an offender. This enables the relevant authorities to evaluate the offender’s response in hospital without any irrevocable commitment on either side to this method if it should turn out to be unsuitable

5.2 Requirements of the Mental Health Review Tribunal

In their Special Report ‘Tribunals: their Organisation and Independence’ The Council on Tribunals (July 1997^[49]), an independent advisory body established by the Act of Parliament in 1958 following the publication of the Franks Report on Administrative Tribunals and Enquiries, set out is mission statement of the general principles to which Tribunals should strive towards as their fundamental purpose. According to this advisory board, whose all-important functions include reviewing and reporting on the constitution and working of a large number of tribunals, the principal hallmark of any appeal tribunal is that ‘it must be independent, and equally importantly that it must be perceived as such’. (Council on Tribunals, 2000, section 1.9, paragraph 1). Thus, having emphasised the importance of this integral characteristic, the document sets out a list of pre-conditions that should be met in order for any tribunal to achieve and maintain an adequate level of independence and integrity. These pre requisite conditions are (Council on Tribunals, 2000, section 1.9, paragraph 1: i-viii):

• Proper rules of procedure
• High quality appointments of Tribunal chairmen and members
• Sufficient training for Tribunal chairmen and members
• Appropriately high standards of judicial performance, with guidance and support for chairmen and members (including the means for monitoring performance, especially performance of newly appointed Tribunal chairmen and members)
• Freedom to make independent judicial decisions uninfluenced by resource provider or any other external factors
• Proper administrative support in terms of hearing clerks and other support staff, and legal and other text books, as required
• Adequate and appropriate Tribunal hearing accommodation in premises which are not connected with one or other of the parties
• Sufficient resources effectively allocated to meet Tribunal needs and, consequently, the needs of the mental health patient.

Considering critical problematic issues that arise commonly with Tribunals such as ever-increasing workloads and lengthening delays in hearing dates, the Council on Tribunals have laid out behind-the-scenes recommendations for planning, resources and targets towards achieving an optimised Tribunal hearing and associated processes. Some of these are outlined briefly below:

• Proper management information systems to foster good planning processes and thus potentially help to combat the ongoing resource problems and help manage the ever-increasing workloads (Council on Tribunals, 2000, section 2.10, paragraph 1)
• Business planning processes should be developed to organise the aims, short- and long-term targets and outcomes for each area of the Tribunal (Council on Tribunals, 2000, section 2.11, paragraph 1)
• A useful measurement auditable tool should be put in place for collect, analyse and report information about the extent to which the organisation achieves its operational objectives
• Implementation of appropriate work-streamlining strategies to help in meeting workload targets

There are differences between the recommended processes of the Tribunal hearings as set out in the Mental Health Act 1983 and the Mental Health Review Tribunal Rules 1983. In an observation study in 2000, Richardson and Machin examined the procedures of Tribunal hearings by observing 50 tribunal hearings and subsequent deliberations, and by conducting 37 interviews with various Tribunal members, patient legal representatives and tribunal office personnel.

Using a strategic approach, we shall discuss the happenings of Tribunal hearing according to what happens before the hearing, what happens after the hearing and what happens at the post-hearing deliberations. For the first time, in their pivotal report, Richardson and Machin (2000) also analysed the frequency and different categories of commonly posed questions.

5.3 Tribunal processes

The appeal process to the Mental Health Review Tribunal is a complex and multi-stage process (Shah and Oyebode, 1996^[50]). On appointment to be a Tribunal member, all members are given an official guide which explains the work of the mental Health Review Tribunal and also outlines their individual role’s within the Tribunal in making effective, fair and balanced decisions regarding the vulnerable patient population that is mental health patients.

5.3.1 Preliminary medical assessment

The first official step of the Tribunal process is when the medical member does his or her preliminary assessment of the applicant patient in accordance with Rule 11 of the Mental Health Review Tribunal Rules (discussed extensively in previous section 1). In addition, the Mental Health Tribunal Rules 1983 (Schedule 1, Part B) (SI 1983/ 942) require that the RMO should prepare an up to date medical report f