Mental Health Review Tribunal (England and Wales)
|This article relies on references to primary sources. (September 2011)|
The Mental Health Review Tribunal consists of two distinct bodies, within a single non-departmental public body, which exist to protect the rights of persons subject to the Mental Health Act 1983 in England and Wales in the United Kingdom. Essentially, it provides for consideration of appeals against detention in hospital made by people thus detained.
The first body is a Judicial Tribunal with the responsibility for hearing applications or references concerning people detained under the Mental Health Act 1983. The Tribunal members are appointed by the Ministry of Justice. There is a Liaison Judge appointed to the Tribunal to lead its development.
The second body is the Mental Health Review Tribunal Secretariat. This is staffed by members of the Department of Health, and has responsibility for the administration of the Tribunals.
The judicial tribunals
Mental Health Review Tribunals are independent judicial bodies that operate under the provisions of the Mental Health Act 1983 and the Mental Health Review Tribunal Rules 1983. A Tribunal's main purpose is to review the case of a patient detained under the Mental Health Act and to direct the discharge of any patient for whom the statutory criteria for discharge have been satisfied. In some cases, the Tribunal also has the discretion to discharge a patient who does not meet the statutory criteria. Such cases usually involve making a balanced judgement on a number of serious issues such as the freedom of the individual, the protection of the public and the best interests of the patient.
The Lord Chancellor makes appointments to the panels of members for each region. In the case of medical and lay specialist member, the Secretary of State for Health (for cases in England) or the Secretary of State for Wales is also consulted. The Regional Chairmen appoint the members who are to sit at a particular hearing and there must be a legal member, a medical member and a lay specialist member appointed for each Tribunal hearing.
Role of the legal member (Judge)
The legal member's role is to preside (i.e. take the chair) at Tribunal hearings. His or her responsibilities also include making sure that the proceedings are conducted fairly, that the legal requirements of the Mental Health Act 1983 are properly observed and advising on any questions of law which may arise. He or she is also responsible, in consultation with other judges of the Tribunal, for drafting the reasons for the decision, and for signing the record of the decision. The legal members are required to have "such legal experience, as the Lord Chancellor considers suitable". They are normally senior practitioners, but in 'restricted patient' cases, must be Circuit Judges, or one of a small number of Recorders, who are also Queen's Counsel.
Role of the medical member (Medical Judge)
The medical member has a dual role to perform. They are required by the Tribunal Rules to carry out an examination of the patient before the hearing and to take any steps that they consider necessary to form an opinion of the patient's mental condition. At the hearing they, together with the other judges, have the judicial responsibility of deciding whether or not the patient should continue to be detained or remain on a community treatment order. If the medical member's opinion of the patient differs significantly from other medical witnesses then this should be made known at the beginning of the hearing. This is because it would be unfair and contrary to a basic principle of natural justice if the Tribunal members were to take notice of information that had not been shared with all the other parties at the hearing. The medical member is invariably a consultant psychiatrist of several years' standing. He or she will be able to advise the other members of the Tribunal on any medical matters. Medical members are generally senior doctors, with at least 7 years experience and are often drawn in from Consultant level.
Role of the lay specialist member (Specialist Judge)
The lay specialist member provides a check and balance to the Tribunal Rules as a representative the outside the legal and medical profession. However, the lay specialist member offers a high degree of skills and experience within mental health which are directly applicable to the tribunal. Most specialist judges will hold at least a postgraduate degree and an extensive background of professional practical within the health, social care and or welfare sector. This can be drawn from the NHS, voluntary organisations, adult social services or the private medical sector. Specialist members may also be mental health social workers, probation officers, approved mental health professionals, psychologists, mental health nurses and occupational therapists. He or she will be able to offer information to the other judges of the Tribunal on matters relating to health and social care matters. Generally, lay specialist members are appointed in office for a term of 5 years and this is reviewed every 5 years until the age of 70, which is the statutory retirement age for specialist judges.
Course of the tribunal
Tribunals normally sit in private and take place in the hospital or community unit where the patient is detained. Physical location aside, the tribunals resemble court hearings, during which appropriate witnesses are invited to speak in turn. These include the detained person, his or her solicitor, the member of the multi-disciplinary team responsible for the detained person's care in hospital, known as the Responsible Clinician or RC (usually a consultant psychiatrist), a representative of the nursing staff at the hospital and the Approved Mental Health Professional (AMHP). Additionally, the RC and AMHP (or more frequently the patient's care coordinator) are required to submit written reports on the person's state of health to the Tribunal in advance of the hearing. Sometimes the primary inpatient nurse for the patient may also submit a written report.
How the decision is made
Each member of the Tribunal is entitled to an equal voice on questions of law, procedure and substance. All the members participate in the making of decisions and, although the legal member is expected to draft and sign the written record, this is done only after taking into account the contributions of the other members. If the members do not all agree then a decision of the majority of members of the Tribunal is taken as the decision of the Tribunal.
The Tribunal will consider the case and the patient as presented on the day. The Tribunal cannot question the circumstances that gave rise to the detention. The Tribunal decides whether or not to end the patient's detention in hospital. The Tribunal has the power to order a deferred discharge which may be conditional (for example that an aftercare package is put in place).
Decisions of the Tribunal can be appealed to the Administrative Appeals Chamber of the Upper Tribunal, or to the High Court, by way of Judicial Review.
There is a Regional Chairman appointed for each of the two Tribunal regions (the North Region and the South Region), based in London and Manchester. Regional Chairmen's responsibilities include appointing members to particular hearings, ensuring that all the statutory requirements are complied with, making judicial decisions and giving such directions as are necessary to ensure the speedy and just determination of every case. Regional Chairmen are also responsible for organising training for members, for overseeing the members' appraisal and mentoring scheme and for handling complaints about a member's conduct.
Organisation of the Tribunal
The Secretary of State for Health is responsible for meeting the expenses of Tribunals in England and for providing accommodation and staff. Administration is carried out at the Secretariat offices in Leicester. The Welsh Assembly has similar responsibilities for Tribunals in Wales and administration is carried out at the Secretariat office in Cardiff. All the Secretariat staff are civil servants and are completely independent of the hospital authorities. The Regional Chairmen and the Secretariat work closely together to make sure that the whole Tribunal process is closely managed. The role of the Home Office is confined to cases involving 'restricted patients'.
Tribunals operate independently of all Government Departments.
- Official website: http://www.mhrt.org.uk