Reforming the Mental Health Tribunal

As I said in a previous post, I would like to see the hiatus in Mental Health Act reform, due to the lack of inclusion of a new bill in the current session of parliament, used to consider taking current proposals for reform even further. One of the ways in which I think that should happen is looking again at extending the role and powers of the Mental Health Tribunal.

As I have also said (see eg. previous post), the 1959 and 1983 Mental Health Acts were reforming Acts for the rights of people with mental health problems. There is an opportunity to improve the rights of people with mental health problems even further in a new bill. The Mental Health Review Tribunal was originally a standalone body to hear appeals against detention (see eg. Wikipedia entry). Associated with the amendments to the 1983 Act in 2007, the Tribunal merged with the Health and Social Care Chamber of the newly established First-tier Tribunal in 2008. The Tribunal is now called the Mental Health Tribunal, with the ‘Review’ dropped. 

Personally I would reinsert the ‘R’ in the acronym and call it the Mental Health Rights Tribunal in a new bill, making explicit its human rights basis. My experience is that the Tribunal now has become bureaucratic and less focused on patients’rights and has become too much of a rubber-stamping exercise of what the Responsible Clinican is doing. The 1983 Act also introduced the safeguard of Second Opinion Approved Doctors (SOADs), but again, as I have said before (see eg. previous post), the SOAD process has become too much of a rubber-stamping exercise. Safeguards introduced by the 1959 and 1983 Acts, such as Tribunals and SOADs, have actually been watered down in my view.

Sarah Markham asked in a Lancet Psychiatry article whether first-tier tribunals for mental health in England are fit for purpose. As she says, there is concern that Tribunals are dominated by clinical input and that human rights are given lower priority, especially the rights to liberty and access to justice. Tribunals should not merely legitimise coercion and limit access to justice. There are questions about risk assessment with the perceived risk of patients generally being deemed of greater importance than the evidenced facts. She expresses the same concern as me that "tribunals are in effect acting as rubber stamps for medical decisions rather than as an objective and robust accountability organisation and effective protection for individuals".

As I said in my submission to the Parliamentary Scutiny Committee, I have no objection to Tribunals being reduced to a single judge. This would mean that they are no longer dominated by the medical member, whose view panels as a whole rarely oppose. The expert witness role that the medical member provides, in my opinion, would be better provided by independent experts within an integrated advocacy service of mental health lawyers, Independent Mental Health Adocates (IMHAs) and independent experts, not just on medical but also on nursing and social matters.

The Parliamentary Scrutiny Committee recommended introduction of pilots for patients to be able to appeal to a slimmed down Mental Health Tribunal about treatment plans. I think there is time before a bill comes back to take this forward to proceed with a full reform of the Tribunal, so that patients can appeal to the Tribunal both on detention and treatment decisions.