Richard Jones, 'Response to MHA Review (3): Jurisdiction of the First-tier Tribunal' (28/12/18)
Article This article considers the MHA Review's recommendations in relation to the Mental Health Tribunal.
Despite the fact that the mental health tribunal system is under considerable pressure, the Review makes significant recommendations to extend the jurisdiction of the tribunal. All of the recommendations are problematic and are open to the general criticism that it is inconsistent for the Review to state (at p.112) that the tribunal should not be given the power to direct a hospital to change a patient's "care and treatment plan", yet at the same time provide the tribunal with the powers set out below.
The first recommendation is that the tribunal "should have the power, during an application for discharge, to grant leave from hospital and direct transfer to a different hospital". The Review proposes that the tribunal should be able to consider, "when they have decided not to discharge a patient, whether to make directions concerning leave or moves to a lower level of security that would reduce the levels of restriction and give the patient a better chance of being discharged at a future application".
A proposal which enables the tribunal to require an RC to grant leave to a patient or to direct that a patient to be transferred to another gives rise to a number of concerns including:
- How will the tribunal be able prepare the comprehensive risk assessment which must precede the granting of leave?
- How will the tribunal be able identify the conditions to be attached to the leave and confirm that arrangements to facilitate the conditions have been put in place?
- Is it appropriate for a body to have the power to grant leave, yet have no responsibility for monitoring the patient's response to being granted leave or to exercise the recall power?
- How will the tribunal undertake the comprehensive risk assessment which must precede a patient's transfer to a hospital that provides for a lower level of security?
- What action would the tribunal take if that hospital refused to admit the patient?
- Is the government likely to enact a power which directs a hospital to admit a patient given that the Court of Appeal has recently held that it is not for the High Court to substitute its judgment for the statutory decision-maker?
- How can these powers be reconciled with the status of the RC as the clinician with "overall responsibility for the patient's case" (s.34(1))?
The second recommendation is that the tribunal should have "a limited power to direct that treatment and care be made available in the community, if it is clear that, without these services, the patient would have to remain detained in hospital". In the absence of details about the limitations that would be placed on the power it is difficult to provide a considered response to this proposal. Such a power, which is not available to the High Court, could enable the tribunal to make decisions about a patient's care or treatment which did not have the agreement of those who would be expected to provide the care or treatment. The proposal would also enable the tribunal to make resource allocation decisions relating to a single patient in the absence of information about how that decision would affect the generality of patients. Decisions on resource allocation in financially straighten times should surely remain with the bodies that have statutory responsibility for proving services. It is also the case that service providers have the necessary expertise to balance the needs of individuals and groups who require services, an expertise that is denied to tribunal members. If the recommendation is enacted it would be possible for differently constituted tribunal panels to make separate treatment and care decisions relating to a number of patients who reside in a particular area. This could obviously have unforeseen negative consequences.
The third and most troubling recommendation relates to treatment decisions of the RC and the SOAD. The Review states that they "believe there should be a route of challenge to a single judge of the Tribunal, supported by non-means tested legal aid. That judge would have the power either to require the Responsible Clinician to reconsider their treatment decision or to order that a specific treatment is not given where they find that it is a disproportionate interference with the patient's rights". The Review further recommends that such an application could be made to the judge by an IMHA or a NP if the patient lacks the capacity to make an application.
At present, there exists a longstanding constitutional principal that has been endorsed by the highest courts that a court will not interfere with a clinician's judgment as to what medical treatment is in his or her patient's best interests. It is, to say the least, surprising that a recommendation is made to provide an inferior court with such a power in the absence of a considered justification for abandoning the principal. Apart from the constitutional principal involved, a number of arguments can be made against providing a judge with a power to prevent a particular treatment being given to a patient:
- Is it appropriate for a lawyer to override the clinical decisions of two psychiatrists?
- Although the Review states that they "do not think that the judge would, in most cases, need to obtain further clinical evidence ", how is a judge to reach a decision about the impact of withdrawing a particular treatment on the patient in the absence of independent medical evidence?
- How is a "disproportionate interference with the patient's rights" to be identified given that a patient's objection to the treatment cannot by itself be a reason for the interference to be disproportionate?
- The proposal would lead to an undesirable insertion of law and lawyers into medical decision making. An application would, in effect, be an appeal against the decision of a SOAD. Under art.6 of the ECHR, the SOAD would have to be joined as a defendant to the application which, if unsuccessful, could be appealed to the Upper Tribunal.
A better option that would respond to a patient's concern about receiving a particular treatment would be to require a SOAD to take into account the patient's wishes when authorising treatment and to provide a written explanation if such wishes were not followed.