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Bias and mental health tribunals: a reply

10 Apr 06

Reply to criticisms of the new tribunals, arguing that the composition of the tribunals is not inherently unfair and only research can assess their performance

by Jacqueline M Atkinson

The membership of the new mental health tribunals has come in for criticism by Turner ("Seen to be fair?" The Journal, November 2005, page 24: http://www.journalonline.co.uk/article/1002425.aspx). His points, which are unevidenced, bear some investigation, not least because there is very little evidence either to support or refute them. His objection to having psychiatrists as tribunal members is based on several observations.

"I had heard that they tended to dominate the mental health tribunal already in operation in England and Wales."

There is limited evidence on the actual process of tribunals or their decision making process (Peay, Tribunals on Trial: A Study of Decision-Making under the Mental Health Act 1983, Oxford: Clarendon Press (1989); Perkins, Decision Making in Mental Health Review Tribunals, London: Policy Studies Institute (2003)), and anecdotally some would say in their experience the legal member dominates. The dual role of the medical member in England causes concern (Richardson and Machin, "Doctors on tribunals", British Journal of Psychiatry 176 (2000), pages 110-115; Gibson, "Medical roles in mental health review tribunals", British Journal of Psychiatry 176 (2000), pages 496-497), but this will not be the position in Scotland.

A study of Mental Health Review Boards in Victoria, Australia, with a similar membership, indicated that the most active member, in relation to all issues, was the legal member (Swain, "Admitted and detained – Community members and Mental Health Review Boards", Psychiatry, Psychology and Law 7 (2000), pages 879-884). The community member was least active. No one person, or discipline, should dominate tribunal proceedings. As Ross points out: "it is not in the letter or spirit of the new legislation or Tribunal rules that the Tribunal should become dominated by polarised legal argument or manoeuvring" ("Whose right is it anyway?" Newsletter for Mental Health Officers in Scotland,10, pages 14 and 11).

"I had observed... that many of my clients... had a deep mistrust of their psychiatrists" (page 24). Again anecdotal reports indicate that many patients trust their psychiatrist. However, for this to make sense in relation to tribunals the reference must be extended to all psychiatrists. There is a paradox here in that almost inevitably it is those patients who most distrust (their/all) psychiatrists who are most likely to refuse treatment and thus become subject to the Act. Their treatment refusal may be because of illness-related thoughts or it may be on the basis of a different system of beliefs about mental illness.

Likewise, many (alleged) criminals may distrust the legal profession but this is not reason for dispensing with it. This is not to argue that patients are not important. There is some suggestion that patients thought the MHRT in England less independent than tribunal members themselves (Ferencz and McGuire, "Mental Health Review Tribunals in the UK: Applying a therapeutic jurisprudence perspective", Court Review, Spring 2000, pages 48-52). It has also been noted that patients' knowledge of tribunals was limited, as to its role, procedures and powers (Dolan, Gibb and Coorey, "Mental health review tribunals: A survey of Special Hospital patients' opinions", Journal of Forensic Psychiatry 10 (1999), pages 264-275; Ferencz & McGuire, as above).

Turner does not seem to be suggesting that the tribunal system distance itself from a medical perspective, only that psychiatrists cannot be trusted to act fairly, due to bias. This appears to equate bias with a particular expert training and experience. Yet it could be argued that this is the point of an expert, and also for involving more than one professional discipline in the process.

Mental health officers come to the detention process with a different expert training, which does not make them unbiased but differently biased (see Peay, Decisions and Dilemmas. Working with Mental Health Law Hart Publishing, Oxford (2003) for discussion). So too the legal member. To suggest that this "bias" is always anything other than a discipline-based approach would seem to be an inappropriate and unprofessional slur. It could be argued that it is this coming together of different viewpoints and skills which leads to the fairness of the tribunal rather than otherwise.

Turner then turns his attention to the general members. The question here is what is intended for the role of the general member and his understanding of "quite independent". His objection to psychiatric nurses is they are part of community mental health teams, subject to doctors and are "members of the same profession".

This is a difficult area to unpack. They are not members of the same profession, having different training and regulatory bodies. The training they receive, however, will almost certainly be based on the same diagnostic and treatment assumptions as doctors, although set in a different paradigm of nursing care.

The relationship between doctors and nurses has a varied past, including periods, for example in the late 19th century, when doctors saw their authority being undermined by nurses (Black, "Rise and demise of the hospital: a reappraisal of nursing", British Medical Journal 331 (2005), pages 1394-1396). This can be seen currently in the moves to increase the skill base of nurses in relation to prescribing and other treatment interventions. The transformation of hospitals in the latter part of the 19th century was largely led by nurses and it is argued they lead in improving the current hospital environment and reducing the need for hospital care. To persist in the view that nurses are always subservient to doctors is to do the profession a disservice. Without knowing anything about the personal characteristics of tribunal members it could be suggested that it might be that it is the most independent, or those seeking to establish distinctions between professions, who have put themselves forward as tribunal members.

Another objection is that community psychiatric nurses (CPNs) "are well known to patients under compulsory medication on leave of absence from hospital". Again it is not clear whether the comment is directed at individuals or in general. If the latter then almost certainly all patients who have been detained will have had contact with CPNs, including when voluntary patients. If this means that patients see them as biased then the same assumption should apply to MHOs for their part in the detention procedure. Since it is the MHO who makes the application for an order it could be argued that patients should mistrust then equally.

The different conceptual training of MHOs to doctors is important in the detention process but does not mean they are there to act as the patient’s advocate as is sometimes assumed. Their role includes looking at alternatives to the care being proposed, to provide the social context to the patient’s situation and assess risk. Pressure to admit a patient can come from a patient’s relatives or others as well as the psychiatrist (W Munro, unpublished thesis, Master of Community Care, University of Glasgow (2003)). Thus it could equally be argued that MHOs should not be part of tribunals because of their other role in the legal process.

Another professional group who are general members, although in small numbers, are clinical psychologists, and Turner has no objection to them, as they "are a separate profession although also employed by the NHS". An interesting anomaly exists here with England & Wales. The proposal there is that the medical member of the tribunal need not be a doctor, but could be another mental health professional, including a clinical psychologist. Although part of the reason for seeking to expand this category is the undoubted shortage of psychiatrists, psychologists have also suggested they may have more to offer in the treatment of severe and dangerous personality disordered people which is so dear to the (Westminster) government’s heart. It would be an interesting position if in England & Wales clinical psychologists (and others) were on a tribunal as medical members but in Scotland as general members. It seems to demonstrate confusion about the various professions and the roles on tribunals.

It may be that the role of the general member is not well defined. They have to have a connection with mental health services, but the perspective brought by a clinical psychologist is likely to be very different from that of a service user, or a carer, or staff from a voluntary organisation. Thus the "mix" on tribunals will necessarily be different, although all have undergone the same training for tribunal members. Whether this leads to different outcomes is only something which will be known in time through monitoring and research.

A two-person tribunal (leaving aside semantic issues), for example a lawyer and general member, would be problematical and arguments about the dominance of the legal chair would almost certainly be heard. Just after Turner’s article was published a document on the England & Wales Mental Health Bill was leaked to Channel 4 News (8 December 2005). In this were proposals for a one, two or three person tribunal, mainly due to staffing concerns. It would seem unlikely that the one person could be anyone other than a lawyer. If so, then it looks like a return to the previous position of cases being heard in court (although not in a court building).

Decisions made by the tribunal, and the process of making such decisions, must be informed by the principles underlying the Act, although it does not follow that tribunals or individuals will interpret them in the same way. The Millan Committee saw the least restrictive alternative in terms of community based care (New Directions: Report on the Review of the Mental Health (Scotland) Act 1984, Edinburgh: Scottish Executive (2001)), where Atkinson and Garner argued that it could or should be equated with the patient’s wishes ("Least restrictive alternative: Advance statements and the new mental health legislation", Psychiatric Bulletin 26 (2002), pages 246-247).

To judge the success of tribunals empirical questions must be answered. "Do three people make a ‘fairer’ decision than one?" is a question where, in the real world, as opposed to an experimental set-up, there may be no way of testing. "Do those who are subject to tribunals (patients) and those who take part think they have been treated fairly?" could be answered. Other questions, such as the dominance of individual members, perceived bias and independence, facilitators and barriers to participating (from patients to tribunal members) and many others should be answered, in time, with an appropriate monitoring and research agenda.

Jacqueline M Atkinson, PhD, CPsychol, Public Health and Health Policy, University of Glasgow