Thursday, 26 August 2010

More reasons … and more money spent on lawyers? That’s what the new appeal tribunal seems to want

It is now possible to challenge decisions of the mental health tribunal without going all the way to the High Court. The new tribunal, which has taken over from the much-loved Mental Health Review Tribunal (MHRT), is the First-tier Tribunal of the Health, Education and Social Care Chamber (Mental Health) (FtT). If that name recalls Jimmy Saville’s Old Record Club – “That’s: open bracket, I Can’t Get No, close bracket, Satisfaction” – so does the title of the new appellate court: the Upper Tribunal (Administrative Appeals Chamber).

The Upper Tribunal (UT) is finally getting into gear, and some of its early judgments are about the reasons the FtT gives for its decisions.

Satisfactory reasons
In the case of RH, the UT said those reasons were perfectly adequate (RH v South London and Maudsley NHS Foundation Trust (Restriction Order), 8 February 2010). The FtT had refused to discharge RH from conditional discharge, even though all the professionals, including his responsible clinician and social worker, and an independent psychiatrist, supported his case. The tribunal had formed a different, more pessimistic view of the risk he continued to pose.

When considering RH’s appeal, the UT said there is a difference between a case where the tribunal disagrees with the clinical judgements of witnesses (where the explanation will have to be more detailed) and one where the only disagreement is as to the inferences to be drawn from those judgements. This was an example of the latter case, where the tribunal need only give sufficient reasons to show that it has directed itself properly as to the law and had regard to the appropriate matters.

Is this the job of the NHS?
Although this was sufficient to dispose of the appeal, the UT was also concerned that neither the hospital nor the Secretary of State had taken part in the proceedings. It said this approach was understandable in the past, when MHRT decisions were challenged by judicial review and the tribunal itself took the lead. Now, however, the UT said it is “extremely unsatisfactory” for hospitals (for example) to make no submission at all, for there is “a public interest in appeals at this level being properly argued”. Hospitals and the Secretary of State, the UT said, “have an interest in the standards of adjudication in mental health cases, [so] one might also expect them to take an interest in the way mental health law is developed”.

This comment was not central to the case, but it does raise a question that demands a response. And that response might be another question: why? Why should the NHS shoulder the burden – and the cost – of refining mental health law or, more to the point, of correcting the manifold errors of the First-tier Tribunal?

The second appeal came in the case of a restricted patient who suffers from anti-social personality disorder (DL-H v Devon Partnership NHS Trust and Secretary of State for Justice, 12 April 2010).

A difficult case
The UT acknowledged that this had been a difficult case: the statutory definition of ‘mental disorder’ had changed between the evidence being prepared and it being heard. The decision of the FtT was nevertheless set aside, because it had not been properly explained.

The FtT had decided not to discharge the patient, either absolutely or conditionally, but the UT said its reasons for doing so were inadequate. On the question of risk, for example, the FtT had excluded the evidence of the patient’s expert witness for a reason that was equally applicable to that of his responsible clinician.

In general, the UT said that FtT reasons must “at least” say what points the tribunal regarded as decisive, and that they will have to be more detailed and more compelling if the overall decision is a surprising one.

Appropriate treatment
Then, the UT turned once more to peripheral matters. It said that because of the way ‘medical treatment’ is defined in the Mental Health Act, it is not hard to satisfy the requirement that ‘appropriate’ medical treatment be ‘available’ for the patient. But this means that a patient “may be contained for public safety rather than detained for treatment”. To guard against this danger, the UT said that the FtT “must investigate behind assertions, generalisations and standard phrases”. Among the questions it said should be asked, and that services and clinicians can now expect to be asked, are: “what precisely is the treatment that can be provided?” “What discernible benefit may it have on this patient?” “Is that benefit related to the patient’s mental disorder or to some unrelated problem?” “Is the patient truly resistant to engagement?” This tribunal didn’t even do that.