Medical examination (MHT)
The medical member’s role
The medical member’s role is unusual. Firstly, he interviews the patient before the hearing and may read the full medical records (rule 34). Secondly, he discusses his findings, in private, with the panel: he is permitted to express not only facts, but also a preliminary opinion on mental condition and statutory criteria (R (RD) v MHRTM). There are pros and cons of medical examinations which should be discussed with each client.
In some cases it was alleged that that the medical member was biased:
- In R (PD) v West Midlands and North West MHRT M the medical member was employed by same Trust as the patient’s consultant but no bias was found.
- In Bernard v SW London and St George’s MH NHS Trust M the medical member, questioning the RC, had stated ‘I have no issues with the nature; it is chronic, relapsing, etcetera’ but the Upper Tribunal decided that he had not formed a preconceived and concluded view (actual bias) or expressed himself in such a way as to give rise to a reasonable apprehension that he had (apparent bias).
In another case, the patient wished to avoid a medical examination (which under the old rules was mandatory) – arguing that the role of medical member was incompatible with Article 5 – but the Tribunal successfully opposed this (R (S) v MHRTM).
More recently, for financial reasons and to recruit more medical members, the tribunal itself has dispensed with routine medical examinations: see Practice Direction and Guidance: Medical Examinations (11/3/14). The current regime is described below. Note that the changes, which apply to applications and references received from 6 April 2014, only apply to England.
Rule 34 currently sets out the three circumstances in which “an appropriate member of the Tribunal must, so far as practicable, examine the patient in order to form an opinion of the patient’s mental condition”:
- Section 2 cases, unless the Tribunal is satisfied that the patient does not want such an examination.
- Any other case, if requested by the patient (or the representative, if the patient lacks capacity) in writing not less than 14 days before the hearing.
- When the tribunal directs that there be a medical examination.
- This would usually be when a request is made in the final 14 days before the hearing date.
- If a patient is absent there must be a medical examination unless it is ‘impractical or unnecessary’; this is in addition to the requirement that the patient must have decided not to attend or be unable for reasons of ill health (rule 39).
- The Practice Direction on medical examinations notes that a salaried tribunal judge or Registrar can direct that an examination take place in advance of the hearing, as part of the case-management powers, but states: “Apart from a patient failing to attend, I do not expect panels at the hearing to direct pre-hearing examinations.”
The secretariat uses form T129 to find out patients’ wishes in this regard. If the request is made within the final 14 days before the hearing date it should be made on form CMR1 instead.
Linked with the 14-day deadline, 21 days’ notice of a hearing must be given (rule 37).
Rule 32 (procedure in mental health cases) requires the responsible authority to make records available for to the tribunal on request and states that “the Tribunal or an appropriate member of the Tribunal may, before or at the hearing, examine and take notes and copies of such records for use in connection with the proceedings.” In relation to this, the Practice Direction states that:
- Medical members should inspect patient’s records in a s2 case or where the examination has been directed over 14 days in advance.
- Medical members ‘are not expected to routinely inspect the patient’s records’ where there is no medical examination or the examination is because the patient failed to attend.
- If a party considers that the tribunal should consider any aspect of the records, the party should submit an extract to the tribunal in advance.
Restrictions on medical examinations
The MOJ, with support from the senior HESC judiciary proposed that preliminary medical examinations should be abolished (Tribunal Procedure Committee, ‘Proposal to amend the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008’ (consultation from 22/3/18 to 11/6/18)). Documents obtained under the Freedom of Information Act by the charity Rethink Mental Illness provided information on the rationale behind the proposals which was omitted from the final version of the consultation document – mainly saving money and promoting flexibility in panel composition (judge-only hearings, including for all s2 cases, and judge-only paper reviews, including for many reference cases) (Phillip Sycamore, Mark Hinchliffe and Joan Rutherford, ‘Representations to the Tribunals Procedure Committee from the Chamber President, Deputy Chamber President and Chief Medical Member (HESC)’ (undated, probably late 2017) and Tribunal Procedure Committee, ‘Extracts from the Minutes of the Tribunal Procedure Committee’ (4/10/17 to 7/3/18)). The Tribunal Procedure Committee ultimately abandoned the proposal (see TPC, ‘Responses to the consultation on possible changes to the Tribunal Procedure (FTT) (HESC) Rules 2008 regarding pre-hearing examinations and decisions without a hearing in the case of references by the hospital or Department of Health’ (23/10/18)).
During the coronavirus pandemic a blanket decision was made that it would not be ‘practicable’ for any pre-hearing medical examinations to take place (Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20)). Following a challenge to an initial decision made under this Practice Direction, a salaried tribunal judge decided that the Practice Direction is subordinate to the rules and that in video-enabled hearings with a full panel a pre-hearing examination is practicable by that means: Re C  MHLO 48 (FTT).After that case, the tribunal published a policy that “it is not practicable under rule 34 of the 2008 Rules for automatic prehearing examinations to take place, unless the Chamber President, Deputy Chamber President or an authorised salaried Judge direct that in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns”. This gives no reason for the assertion that PHEs in other circumstances are “not practicable” and no guidance on what is considered “exceptional”. See Mental Health Tribunal, ‘Video Hearing Guidance for Representatives in Mental Health Tribunals’ (11/9/20) and Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 15/9/20).
In EB v Dorset Healthcare University NHS Foundation TrustM the Upper Tribunal decided that circumstances are “exceptional” if, contrary to the deeming provision, a PHE is practicable. The tribunal cannot refuse a PHE for any reason not related to practicability. In other words, “exceptional” merely refers to an exception to the deeming provision (which states that PHEs are not practicable), and the new procedure adds nothing substantive to rule 34.
PHEs should be requested and taking place in the circumstances set out in rule 34, which is still in force, and which applies to all section 2 patients and other patients who make a request.