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
Current Submissions04.07.08 Getting a Get in Scotland - 2This follow-up to the article published in March 2006 explains how current Scots divorce law affects Jewish clients and how solicitors can give appropriate advice 12.06.08 No place for secrecyFuller version of the Opinion article, Journal, June 2008: critique of the system for appointment as Queen’s Counsel in Scotland 11.03.08 One Scotland, many cultures?Despite the protections of the Human Rights Act, the position of travelling people in Scotland appears to have worsened in recent years - why? 26.02.08 Bank charges and the Unfair Terms RegulationsThe significance of the Unfair Terms in Consumer Contracts Regulations in the context of the current litigation over bank charges 21.02.08 CGT: Don't lose out on 6 April 2008Couples should consider asset transfers before then to preserve indexation relief 14.12.07 Common sense prevailsThe options open, and the issues that arise, now that the proposed planning gain supplement is not to be introduced 07.12.07 Discounting justiceAuthor contends that sentencing discounts and other developments have created an imbalance in the justice system 10.10.07 Advocacy in mediationAn overview of the mediation process and the opportunities for solicitors and clients 06.09.07 TUPE: stay your handA Court of Session ruling on a law firm redundancy marks a fundamental change in TUPE 24.07.07 EAT breaks ground with TUPE insolvency rulingRuling on when insolvency proceedings begin leaves successor employer liable 06.07.07 Confidentiality clauses - beware!The Information Commissioner's decision in the VisitScotland case requires very careful drafting of confidentiality provisions in public sector contracts if they are to work 06.07.07 The power of marks: Frankie goes after Hollys nameHow failure to address issues of ownership of the band's name stored up trouble for Frankie Goes to Hollywood 14.05.07 Court plans with little appealThe fuller version of the Opinion article in the Journal for May 2007 14.05.07 Winning waysThe fuller version of the article in the Journal for May 2007 08.02.07 Routes to qualification: the Italian pictureAn Italian lawyer with an interest in training in different jurisdictions reports on current developments in the Italian legal system 09.01.07 Contractual handcuffs: enhanced redundancy rightsThe Court of Appeal decision in Keeley v FOSROC International Ltd requires employers to exercise caution when referring to redundancy rights in staff handbooks 27.12.06 The Isle of ManAn summary of the current legal and tax regime for individuals and companies based on the island (a longer version of the briefing in the November 2006 issue) 15.11.06 Costume Wars: copyright storm over the troopersA row over "Star Wars" costumes illustrates the need to protect all intellectual property rights in written agreements 13.10.06 Survival of the fittest? A replyReply to article on selection for Diploma and traineeship places by Michael Torrance in the September 2006 Journal 13.10.06 TUPE passes the buckFar from providing clarity, the new regulations will need litigation to decide the effect of the insolvency provisions (longer version of October 2006 briefing article) 17.08.06 For supplement read tax - an updateAuthors update their previous Journal article on the proposed planning gain supplement 17.08.06 Technology and the Scottish courtsAn update on the use of technology in the Scottish courts, based on the author's experience of a recent patent case 26.07.06 A lack of trustForthcoming in August issue, put online because of its urgency, the article outlines the final form of the trust tax changes in this year's Finance Act 17.07.06 Ireland 4, Italy 0The ECJ decision in the Irish-Italian dispute in the Parmalat companies liquidation proceedings provides important guidance on jurisdiction 05.04.06 Legal science or law-lite? A responseThis reply to Professor Gretton argues that changes in Scots law teaching are a necessary response to changes in universities, the wider community and the law itself 03.04.06 Opening a binding global route for personal dataIn a significant move the Information Commissioner has allowed a company to transfer employees' personal data outwith the EU under binding internal rules 02.04.06 Mentally disordered offendersOverview of the options available to the courts when dealing with offenders who have or may have a mental disorder, following recent legislative reforms 30.03.06 Bias and mental health tribunals: a replyReply to criticisms of the new tribunals, arguing that the composition of the tribunals is not inherently unfair and only research can assess their performance 17.01.06 Legal aid in children's hearing referralsThis paper delivered at the legal aid conference, argues that the interests of justice require better remuneration for solicitors appearing in children's hearing cases 09.12.05 Holes in Scotland's corporate killing proposalsGaps in the expert working group's proposals could make them unworkable and bad for business 10.08.05 Prosecuting bigotry offencesTwo appeal decisions have exposed limitations in the statutory offences directed at racial abuse 08.07.05 Commissioner: Public Authorities must do moreInformation Commissioner's first appeal decision highlights areas for improvement 14.04.05 New identity for criminal justice bodyScottish Association for the Study of Offending launches by removing "Delinquency" from title 14.04.05 Information and Consultation RegulationsBriefing on the regulations in force from 6 April 2005, covering businesses with more than the prescribed number of employees 13.04.05 Retailers seek effective court action on crimeScottish Retail Consortium proposes more effective intervention following 3rd Retail Crime Survey 11.04.05 Appropriate dispute resolutionThis paper, given to the Four Jurisdictions Conference in Nice this year, discusses how family law can make a difference for the better by careful choice of the most suitable method of resolution 09.03.05 ASBOs and young peopleWhat to look for when acting for a young person facing an antisocial behaviour order application 21.02.05 Sell or transfer?Longer version of briefing published in February 2005 issue, page 44 08.02.05 Promoting competitiveness or competition?Discussion of EU rules on state aids with particular reference to Highlands and Islands ferries 10.11.04 Guarding the inner sanctumHow to minimise the risk of breaches of internet security 10.11.04 The Clinical Trials Directive - a summaryWhat the EU Clinical Trials Directive means for trials of medicinal products 13.10.04 Sheriff Court Rules Council consultation paperConsultation on proposals for further extension of the use of information technology in civil cases in the sheriff court (response date: 15 November 2004) 13.10.04 Ignorantia juris: it's all Greek to meSecond annual APEX lecture given by the President of the Law Society of Scotland, on the rule of law and its essential components 13.10.04 Virtual firms: transactional learning on the webHow today's Diploma students are introduced to legal transactions in a virtual environment 13.10.04 Drafting consumer contractsGuidance on drafting consumer contracts and ensuring compliance with the Unfair Terms in Consumer Contracts Regulations 1999 |