Minor threat

Following a decade of discussion and numerous green and white papers, the Mental Health Act 2007 finally amended the 1983 Act. Despite the great debate, there remain many flaws in the original text; but there is one particular amendment which I feel is long due.

It is immensely frustrating that a First-tier Tribunal has no power to order a patient's transfer to lower security '“ be that to medium security from a special hospital, or to a low-secure unit from one of medium security.

By way of section 72(3) MHA, a tribunal has the power to 'recommend' a non-restricted patient's transfer between hospitals 'with a view to facilitating his discharge on a future date'. There is no equivalent recommendatory power in section 73 MHA which deals with restricted patients.

Article 5(1)(e) of the ECHR is not in principle concerned with suitable treatment or conditions, and the ECtHR found no breach of article 5 in Ashingdane v UK [1985] 7 EHRR 528, arising out of the fact that the applicant endured the strict Broadmoor regime for 19 months longer than his mental state required. Thus, it is clear that there is no convention requirement that a tribunal should have the power to recommend the transfer of, or to transfer, a restricted patient to less secure accommodation.

However, the English courts have made it clear that there is nothing to inhibit a tribunal from making recommendations for transfers regardless of whether the patient is subject to a restriction order '“ see R v Mental Health Review Tribunal, ex parte Secretary of State for the Home Department [2000] Mental Health Law Reports 209, applied in MP v Nottinghamshire Healthcare Trust and Others [2003] EWHC 1782 (Admin).

The problem is that such recommendations need not be followed. A patient's responsible clinician has an ongoing duty to initiate the transfer of a patient if thought appropriate, and, having not done so, is unlikely to act on a tribunal recommendation.

Stresses and strains

In my work as a mental health barrister I have observed many patients over the years become terribly stressed about their approaching tribunal hearings. Patients detained in the special hospitals have the most to gain and are the least likely to do so. They almost always seek an extra-statutory recommendation for transfer '“ either exclusively, or as an alternative to a conditional discharge.

With tribunal recommendations being largely ignored and discharge straight into the community rarely either appropriate or realistic, the tribunal hearings serve little practical purpose. Such hearings in the high-profile restricted cases are particularly costly, often with barristers appearing on both sides, several expert witnesses, and numerous directions hearings and adjournments.

The reviews mostly pay mere lip service to the right to liberty and the right consequent upon it to regular reviews of detention. Thus, a vast amount of public money is being spent on tribunal hearings which are, essentially, just a nod in the direction of compliance with article 5(4) of the ECHR, with little likelihood of any change to the status quo.

So, why can we not rely on responsible clinicians to fulfill their duty and transfer patients when it is appropriate? I have represented fortunate patients who are not treatment-resistant; those who quickly recover within months of being started on medication. I am told that the average stay in a high-security hospital is 12 years. Those who do not fit the usual 'pattern' of patient, often languish on longer-term treatment plans with staff either unable or unwilling to consider their individual presentation and contemplate a different treatment path.

There is another more insidious aspect to a tribunal's lack of power to order a transfer which is becoming ever more problematic with the NHS' increasing reliance on independent hospitals for the provision of services. There is a huge financial incentive for private hospitals to retain their patients and fail to move them on. I have seen this time and again, with very stable patients festering for months and sometimes years because their responsible clinician will not transfer them, opting instead to wait for the tribunal's decision. Indeed, I have been informed (off the record) of psychiatrists being dismissed for 'discharging too many patients'.

Lobbying for change

In R v Mental Health Review Tribunal and Others, ex parte LH [2002] EWHC 1522 (Admin), the court indicated its reluctance to interfere with a decision on transfer unless there had been an infringement of a convention right, such as under article 3 (which is unlikely in terms of the high minimum threshold required). That concern falls away when a change results from statutory amendment. In view of my frustration and a determination to try to make a difference for my clients, I began investigating the viability of effecting a change in the law. I believe such a change would make an immense difference to a vast number of patients, as well as saving money where it is currently wasted.

There is no real argument for failing to amend the MHA to give a tribunal the power to order a move to lesser security. There is of course a resource implication, and the agreement of the hospital to which the order relates would be necessary, but these are not insurmountable problems militating against the power being inserted into the Act.

In terms of concern for the public, I believe there will always be sufficient protection against a 'perverse' tribunal decision because the amendment will not lead to a patient's release directly into the community.

Further, in the small number of cases where a tribunal makes a truly perverse decision to move a patient to lower security which is likely to cause unacceptable risk to staff, patients, or others, should they effect an escape, it must be remembered that the transfer cannot be instant. The hospital (or secretary of state if the patient is restricted) could easily obtain a stay of the transfer and appeal against the decision.

Thus, in September 2010 when the results of the private members' bill ballot were known, I wrote to those MPs high on the list to try to interest them in an amendment to the MHA in these terms. It was no surprise to me when I failed at that hurdle, mental health not being a huge vote-winner in the average constituency. I am now exploring the possibility of an amendment via the House of Lords. An alternative is direct canvassing of the government, and I am now in touch with an MP who is interested in raising the issue. I strongly believe that such an amendment would make an immense difference to many patients, and, despite the fact that the new government will have other priorities, it is worth doing all I can to try to effect this much-needed change.