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Response to the MoJ Proposal to Abolish Preliminary Medical Examinations in Relation to Mental Health Tribunals

16/7/20180 CommentsBy Ant Parkin

The Ministry of Justice is proposing a rule change abolishing the preliminary medical examination in relation to Mental Health Tribunals. This firm is opposed to the changes and has responded to the consultation. This is an extract from our response:

‘This firm has represented patients at Mental Health Tribunals and before that at Mental Health Review Tribunals over a period of more than 40 years.  We believe the proposed rule change is misconceived and based on a number of incorrect assumptions about practice.  

In paragraph 2.2 of the consultation paper it is suggested that the medical members preliminary view of the patient’s condition is made known at the outset of the hearing only if it differs from that of the medical witnesses.  This does not seem to be borne out in practice as experienced by this firm and by colleagues practicing at the same Tribunals.  It is invariably the case that the medical members view of the patient’s condition is summarised in some detail describing the presentation of the patient in interview and summarising key points from the case notes and at times including accounts gathered from the nursing staff and sometimes comments on the nature of the ward.  

It is submitted that this is often vital information particularly for non-restricted patients who are often detained in acute wards.  The particular relevance here is that it is always necessary for the Tribunal to consider a patient’s presentation in the context of the environment in which they are detained.  The present context in terms of the nature of many acute wards in general hospitals results in an environment that can often be very disturbed.  Part of the role of the Tribunal is to determine to what extent the patient’s presentation is driven by symptoms of mental disorder and to what extent the patient is responding to environmental triggers.  For example, a fairly timid older patient on an acute ward for the first time may seem very quiet and withdrawn particularly if there are agitated patients on the ward who may be behaving in a loud and aggressive manner.  

An additional environmental factor which emphasises the importance of the pre-hearing examination is the current shortage of consultants in acute wards.  This frequently results in consultants spending very limited periods of time with their patients due to the demands on their time and also due to the frequent change of consultant.  In that context it is frequently the case that a pre-hearing examination which may last an hour or so may give the medical member the ability to assess the patient in far more detail than the fairly short periods available in ward rounds to the responsible clinician.  This would then enable a more robust scrutiny of the case for detention.  

It is troubling to read the contents of paragraph 2.4 of the consultation which suggests that the purpose of detention under Section 2 is to allow up to 28 days for a proper assessment and therefore suggesting that a short “snapshot” may assume too great a role in the assessment process.  This seems to fail to take account of the task of the Tribunal in assessing whether degree is warranted under Section 2.  In many Section 2 cases the patient has no previous psychiatric history and therefore the issue of the chronicity under the question of whether detention is warranted on nature cannot be relied on as a factor warranting detention and justifying it under the risk issues.  It is in that category of case that the issue of degree can be decisive and this has to be based on an assessment of how the patient presented themselves together with the consideration of the descriptions in the case notes and the views of the nursing staff and an assessment of the ward environment.  All these factors can be gained from an effective pre-hearing examination and then the full Tribunal have the chance to observe the patient whilst giving evidence at the hearing.  

To describe this as a snapshot approach is in danger of taking too complacent an attitude towards the deprivation of the patient’s liberty for 28 days.  The use of phrase “proper assessment” fails to give adequate weight to the fact that the 28 days is a period of detention.  If the patient is not manifesting a degree to warrant detention and to justify it on the risk issues then it should not be described as “a proper assessment”.

At paragraph 2.7 of the consultation the committee accepts that it is only three years since it accepted the case that pre-hearing examinations remained a desirable and valuable part of the Tribunal process.  It goes on to say that in the light of experience since the rules were changed it is appropriate to revisit the issue but there is no indication of any detailed research which would justify weakening the protection for the patient in the way suggested.  It is argued at paragraph 2.4 that it is the joint view of the MoJ and the senior HESG judiciary that the pre-hearing examinations add little or nothing to the evidential basis.  This appears to be anecdotal evidence only.  It is unclear on what basis the Ministry of Justice would have detailed information on this issue as the Ministry is rarely represented at hearings.  

Surely if there is coherent research on this point it should be presented for critical examination before any changes are made.  Otherwise the concern may be expressed that this is a rule change which is driven more by cost saving than by the concerns set out in paragraph 1.2 of the consultation which require the rules to secure that justice is done and the system is accessible and fair and that hearings are handled quickly and efficiently.  

It is submitted that the changes in relation to pre-hearing examinations seriously weaken the Tribunals power of scrutiny to the serious detriment of the rights of patients.’

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