David McLaughlin of the Mental Health Team at Edwards Duthie Shamash explores the impact of the Covid-19 pandemic on the Mental Health Act and the conduct of Mental Health Tribunals.

On Thursday 19 March, The Senior President of Tribunals, Sir Ernest Ryder, published Guidance and an Emergency Practice Direction to cover the period up to 19 September 2020.

The reason of course was the Covid-19 pandemic; it was clear that Mental Health Tribunals would have to adjust their ways of working in order to play their part in limiting the spread of the virus.

At the same time, the Tribunals Office had been advised that it should prioritise Section 2 hearings (section 2 relates to short-term detention for assessment) and Conditional Discharge Recall hearings.

There are two parts to this Practice Direction.  The first part provides that where any “reference” is made by the Hospital Managers under section 68 of the Mental Health Act 1983, and where the patient (over the age of 18) is in the community, the Tribunal should suggest to the patient or their legal representative that the case is dealt with on the papers.  This is known as a Paper Review.  No parties attend and the written evidence is considered by a single judge who makes a decision and gives reason for that decision.  Whilst this has been in existence for some time, the Practice Direction clearly indicates that such “reference” cases should be given extra consideration for a Paper Review.

The other part of the Practice Direction is more profound.  It fundamentally changes the way Tribunals are convened, how evidence is heard and how the hearings should be conducted:

1: No pre-hearing examinations (PHEs)

Meetings with the patient and the Medical member of the Tribunal usually take place prior to the Tribunal hearing.  They allow the opportunity for the Medical member to meet with the patient in a less stressful environment than the hearing.  It also allows the opportunity to view medical records and see such matters as medication and leave arrangements as well as behaviour on the ward and any proposed plans for discharge.  The Practice Direction removed any PHEs from being conducted with immediate effect.  Tribunals that took place on 20 March proceeded in the ‘old-style’ of a face-to-face hearing but without PHEs taking place.

It would appear that PHEs will not take place, and cannot be requested, during the period of this Pilot Practice Direction as it would be unreasonable to require the Medical member of any Tribunal Panel (see below) to put their health at risk.

2: No more face-to-face hearings

Tribunal hearings have always taken place at hospitals or in the community. They are one of the very few courts or tribunals that sit wherever the applicant is being detained or is residing.  At the hearing the Tribunal Panel sits opposite the patient who sits alongside their legal representative, their Responsible Clinician, a staff nurse from the ward and their social worker or care co-ordinator from the community.   The Pilot Practice Direction provides for face-to-face hearings to be replaced with a tele-conference.

In practice, the telephone details are provided to the legal representative a few days before the hearing.  The legal representative dials in from either their home or office.  The Responsible Clinician dials in from their office. The staff nurse dials in from a room on the ward with the patient present and the care coordinator dials in from their office or home.

This is not an article on advocacy or the conduct of Court hearings, but it is obvious that it is important to be able to see the witness as they give their evidence.  The ability to “look the witness in the eye” and not observe the manner of the manner plays an important part in assessing the quality of that evidence.  Plainly this is not possible by tele-conference and that such hearings are not a satisfactory alternative to face-to-face hearings.

3: From three to one

Tribunals, which make decisions on a patient’s liberty and to consider whether any formal (statutory) or informal (non-statutory) recommendations could or should be made, usually sit as three-member panels.  The Panel is made up of the Legal member who is the Judge, the Medical member who is the psychiatrist and the Specialised Lay member who has experience in the area of social care and is neither a lawyer nor a psychiatrist.  This combined experience enables the Panel to consider and address issues raised in evidence at a hearing.  The Pilot Practice Direction states that any new cases are to be listed before a single Judge.  There has been some confusion at the initial stages as cases have arisen whether all parties have assumed the matter was going to be considered by a single Judge, only for a Medical member and specialised lay member also to attend the telephone conference.  We anticipate that as time goes on, more and more cases will be heard by single Judges.

We are aware that there is unease even at this early stage about Mental Health Tribunals being heard before a single judge.  Whilst there is a system that a Judge may call an ‘on-call’ Medical or Specialist Lay member during the course of hearing a case, thus far this appears to have been very little used in practice.   Moreover, this has the potential to compromise the fairness of the hearing as the patient and legal representative are unlikely to be party to such a consultation.  Single Judge hearings also require the Judge alone to chair the hearing, ask questions and take notes.  As a result, hearings are taking much longer than usual.  This is likely to have an impact on the applicant patient who has to sit through all the evidence at the end of a telephone without any support other than that offered by the nurse sitting with the patient.  For these reasons we hope that three member Tribunals can be re-introduced as soon as possible.

The other change is that at the end of the hearing, when all evidence has been heard and the legal representative has made submissions and closing arguments, the telephone conference is concluded and all parties are told the decision will be communicated to them.  In reality, it has been days before such decisions have been communicated whereas usually the parties are told of the decision within an hour of the hearing concluding, albeit sometimes with full reasons to follows.  The delay in issuing a decision is clearly unsatisfactory.  There needs to be a better method of communicating the decision as soon as possible to both the patient and their legal representative.

Further Changes

On 25 March, a Direction was made by The Deputy President, Sarah Johnston in all cases for the duration of the Pilot Direction.  The directions were as follows:

1. Upon receipt of the CNL1 form from the Tribunal, the Responsible Authority (i.e. the hospital) must allow the legal representative named on the form immediate access to the patient’s medical and nursing notes without a written form of consent signed by the patient. That consent is implied by the appointment.
2. On request from the patient’s legal representative specifying the notes they require, the Responsible Authority shall ensure these records are sent without delay by secure email to the patient’s legal representative.
3. If the Responsible Authority has information in the notes that they do not want disclosed to the patient they shall highlight this in the notes and the legal representative shall not disclose this information without further order of the Tribunal.
4. Any party can apply to the Tribunal to vary this direction.

It is clear from this Direction that Section Papers and Medical records are to be sent electronically to legal representatives without the need to have a Form of Authority.  The Direction is designed to assist legal representatives in their role of advising and representing their clients.

A Direction was also made in respect of all community patients subject to a CTO (Community Treatment Order) or Conditional Discharge.  Essentially this directed that all community patients over the age of 18, who have either applied for a Tribunal hearing under section 66(1) or section 75(2), or whose case has been referred under section 68(2), section 68(6) or section 71(2), will be postponed until after 19 September 2020 (the date of revocation of the Pilot Practice Direction) or further order, whichever is earlier.  This is due to the government’s ‘Stay at home’ policy and the fact that it would be unfeasible and impracticable to conduct hearings by telephone in such circumstances.

The effect of this Order and Directions is that all CTO hearings are now effectively postponed until some date in the future.  Any patient on a CTO will have to remain subject to that CTO unless their Responsible Clinician discharges them from the CTO or if they are recalled and the CTO revoked, placing them back onto the original treatment order.

Video conference hearings

On 6 April, a letter was sent from HM Courts and Tribunals Service saying that the plan is to roll out video hearings for all Mental Health tribunals.  The plan was to roll these out from 13 April but we are not aware that this step has been taken yet.

What about Nearest Relatives?

In some cases, the patient would want to have their Nearest Relative (or indeed anyone to support them or give evidence) present at their Tribunal hearing.  With telephone conferences, this has proved impossible.  More recently, changes have been introduced so that the Nearest Relative can provide their telephone details and the Judge can call and join them to the hearing in that way.