Concentrating the mind

How a society treats those unfortunate enough to suffer from a mental disorder has varied historically. There have always been a range of social, cultural, and gender issues that have impinged on the treatment of mental disorders and these have sometimes been lost in the medical model of treatment that has come to predominate in the care of mentally ill people.

The modern position in England and Wales is that independent review of someone detained as a result of a mental disorder was instituted with the creation of Mental Health Review Tribunals by the Mental Health Act 1959.

They are firmly a 20th century creation having their origins in the 'Report of the Committee on Administrative Tribunals and Enquiries' (the Franks Report 1957) and the 'Royal Commission on the Law Relating to Mental Illness and Mental Deficiency' (the Percy Commission 1954-57). The thrust of the Percy Commission's report was to emphasise the right of a mentally ill person to receive treatment informally but to provide greater protection for those compulsorily detained. The original intention behind the creation of tribunals was that they should be a safeguard against the unwarranted detention of a mentally ill person and they are a product of the 'rights' based thinking of that time.

In practice, in the early years following their creation it was only in a small number of areas that the tribunals sat often enough to gain any useful experience of the process. Strengthened and extended by the Mental Health Act 1983, the tribunals became by the end of the 20th century an accepted and integral part of the mental health system. A criticism often levelled at the tribunals is that they are too medically orientated and have not developed as a strong counterbalance to the power of the medical establishment; notwithstanding the fact that they have a legal chair and a lay member, who is neither a doctor nor a lawyer, in addition to the medical member (usually a consultant psychiatrist).

In the generation since the 1983 Act, there has been a major change in the thinking about how services for disabled people should be funded and organised. Part of this change has been the advocacy of greater autonomy and has seen the introduction of such legislation as the Disability Discrimination Act 1995. While this change in thinking has benefitted to some degree those suffering from mental illness, there has also been the development of a parallel position in respect of mentally ill people in that there has also been a move towards greater regulation. This was a major criticism levelled by the Mental Health Alliance (a coalition of 75 organisations across a spectrum of the mental health field campaigning for a 'rights based' Act) at the various parliamentary Bills that eventually became the Mental Health Act 2007.

The tribunal retains a central role in safeguarding the rights of a patient subject to detention but the process is a review in practice as well as in name rather than an appeal. The tribunal has some role in looking at future care since it should have before it, at least in embryo, an after care plan for the position in the event of discharge. On occasion, a tribunal has extensive involvement in considering a patient's future care plan with evidence from funding authority representatives and/or managers of privately run specialist establishments and it is clear that the tribunal is, in effect, the catalyst in a process of future care planning. The tribunal often serves to concentrate the minds of the professionals on options that may be or may become available.

It remains the case that where a patient has not applied for a tribunal hearing in a particular time frame there is a duty on the hospital managers or, in the case of a restricted patient, the secretary of state, to refer the case to a tribunal hearing and the tribunal has to deal with the reference as though the patient made the application.

The tribunal has powers to discharge a patient from the liability to be detained, which is not necessarily the same as discharge from hospital. This power is contained in section 72 of the 1983 Act for non-restricted patients and sections 73-75 for patients subject to restriction. It also has the power in respect of unrestricted patients to make recommendations. These may only be made with a view to facilitating discharge at a later date (section 72(3)). The tribunal can direct that a patient's disorder should be reclassified and, in the case of unrestricted patients, make recommendations for leave or transfer and can rehear the matter if the recommendation has not been carried out. Human rights considerations are now an integral part of any tribunal hearing.

An independent role

It may seem from this that the independent role of the tribunal is something that is jealously guarded and that such independence is right and proper. The innovations in tribunal operation that have come about at the beginning of the 21st century appear to be seeking to underpin the development of that independent role.

The 21st century has already seen the development of a more coherent system for delivering administrative justice with the creation in 2006 of the Tribunals Service, bringing 29 previously separate tribunals under one judicial umbrella. The implementation of the Tribunals, Courts and Enforcement Act 2007 creates a First-tier Tribunal '“ and so the Mental Health Review Tribunal becomes the First-tier Tribunal (Mental Health) '“ which hears matters initially and an Upper Tribunal that hears appeals. The Tribunals Service is divided into various 'chambers'; mental health comes within the Health, Education and Social Care Chamber. The chair of the tribunal is now a tribunal judge though still sits with a medical member and a lay member. The jurisdiction is the whole of England. There is a separate tribunal for Wales and a separate mental Health Review Tribunal for Scotland.

From November 2008, there are the provisions of the First-tier Tribunal (Health, Education and Social Care Chamber) Rules 2008 and the new Practice Direction on Statements for Mental Health Proceedings from the responsible authority and the secretary of state that govern procedural matters.

The last year has also seen the appointment of several full-time tribunal judges in the mental health field. The change and development of the Tribunals Service also means that any appeals on a point of law from First-tier Tribunals go to the Upper Tribunal rather than by way of judicial review to the High Court.

It is clear that the emphasis is shifting to a clearly defined and distinct legal framework for the mental health '“ and other '“ tribunals. An important feature of the operation of the tribunals in this new framework is that they remain inquisitorial and not adversarial in nature.

Along with the changes in the practical organisation of the mental health tribunal system, the development of the system is likely to be influenced by two others matters.

The first is the provision for supervised community treatment brought about by the amendment of the 1983 Act by the Mental Health Act 2007. The second matter is the arrival at the forefront of mental health thinking '“ and certainly of media reporting '“ of a 'public risk agenda', there having been a gradual shift from 'a patient's rights agenda' that characterised the thinking that lead to the Mental Health Act 1959. With this shift comes the consequent potential amplification of the role of containment over safeguarding.

Advocates of supervised community treatment argue that it is treatment in a less restrictive environment that avoids the disruption caused to the lives of patients and others by repeated admissions to hospital. Those against such orders refer to the risk of unwarranted detention in the community with a marked increase in the power given to clinicians in a community setting with the potential detriment to an individual's rights.

A more legalistic approach?

So, whither the future? Is the change in organisational structure to create a strongly judicially orientated structure as a part of a wider judicial system likely to result in a shift to a more legalistic approach to how tribunals will operate?

Is it a danger that the emphasis on the legal may give rise to the supplanting of one established power base with another without necessarily changing the nature of the service for the better for the people most affected by its operation? It remains to be seen how the changes influence the perception of tribunals by others.

A major test of the new system will come with the assessment of the operation of the supervised community treatment orders. The issue for tribunals will not be on how someone comes to be subject to such an order but how that person comes to be taken off one. This will bring into sharp focus the potentially crucial differences in a legal or a medical orientation.

Decisions in respect of such orders when the subject of a First-tier Tribunal judgment will need to tread the tightrope of assessing a patient's rights in an atmosphere that is increasingly concerned about public risk, while simultaneously taking account of all the variables that go into assessing the particular circumstances of a particular patient.

Will the result be a legal emphasis on the patient's rights not to be indefinitely detained in the community and subject to the control of the medical establishment? Will the medical model that such control has resulted in a more stable and less disruptive lifestyle which benefits the individual and society at large be emphasised?

The paradox with reference to supervised community treatment where the patient is simultaneously both 'of' the community and a person from whom the community ought to be protected requires resolution. The role of the Upper Tribunal on offering guidance about how hearings reviewing supervised community treatment orders are to be approached will be of crucial importance.

Within this tension, the range of social, cultural and gender issues which have long been recognised remain and it will be instructive to see how these considerations are dealt with constructively in guidance given through a legal framework. At the same time that there have been developments within the mental illness field, there has also been the development of a notionally separate system dealing with issues of mental capacity. The legislation relating to mental capacity provides no role for the tribunals system though they are obviously allied. There are complex series of considerations about when mental health legislation rather than mental capacity legislation applies. Perhaps the 21st century will seek to develop legislation that comprehensively covers treatment of the mentally disordered across both 'illness' and the 'capacity' with the appropriate safeguards.

For now, it appears that the predominant position is that of a risks-based rather than a rights-based approach to safeguarding. It is for the new look mental health tribunal service to resolve tensions as best it can.