Erosion of rights proposed by Tribunal – Peter Edwards Law hits back
Peter Edwards, Solicitor and Director
Comments of Peter Edwards Law on the FTT proposals to change PHE’s and reduce hearings for references.
We believe that this is an attempt by MHT senior judiciary, under pressure from the MoJ, to reduce expenditure resulting in a far greater cost namely the risk of a very vulnerable person not getting a fair hearing. In reality the cards are stacked against the patient before the hearing starts.
In the absence of a pre hearing examination (PHE) the only information the tribunal has at this formative stage are all the reports justifying detention.
What is particularly disappointing is that these regressive proposals are dressed up as satisfying the overriding objective of the FTT. These are set out at 1.2 of the consultation paper.
“Specifically, s22(4) of the Tribunals, Courts and Enforcement Act 2007 requires that the TPC’s rule-making powers be exercised with a view to securing:
(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,
(b) that the tribunal system is accessible and fair,
(c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,
(d) that the rules are both simple and simply expressed, and
(e) that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.”
If there does need to be a genuine review of tribunal procedures that is not driven by financial expediency then surely the time to do that would be in conjunction with the current independent review of the MHA.
It is noted that when proposing the change of PHE’s in 2014 the Tribunal Procedure Committee stated, in its response to the consultation:
21. We are not persuaded that preliminary examinations should be abolished altogether. The superior courts have held the procedure not to be intrinsically unfair and the overwhelming view of respondents is that they assist the tribunal to reach the right conclusion in many cases and can be an important safeguard for patients.
22. There is also considerable force in the arguments that a preliminary examination enables at least some patients better to present their cases to the tribunal and that introducing an element of discretion that would require the tribunal to consider whether there should be an examination in a large number of individual cases would be expensive and give rise to appeals in contentious cases. However, we do not consider that it follows from these considerations that the rule that there should be a preliminary examination in all cases should be retained. At most, it follows that there should be a preliminary examination in all cases where the patient wants one.
We note that it is now asserted by the MOJ, with support from the senior HESC judiciary that:
2.4 .. in the light of experience since the rules were changed in 2014, PHEs should now be abolished entirely. The joint view is that PHEs appear to make little material difference to the outcome of cases, and, despite PHEs being requested in around 50% of non-s.2 cases, that they add little or nothing to the evidential basis on which tribunals make their decisions. It is suggested that that the proportion of patients discharged varies little, irrespective of whether a PHE was carried out. It is also suggested that a PHE may present a potentially misleading picture of the patient’s condition where the patient is detained under s.2. The purpose of a detention under s.2 is to allow up to 28 days for a proper assessment, and a short ‘snapshot’ from a PHE may assume too great a role in the assessment process and influence the tribunal to a disproportionate degree.
Our understanding is that the views of the MOJ are driven simply by a desire to curtail the increasing costs of the Tribunal caused by an increase in the numbers of those detained. Frankly it insults the intelligence of those consulted to simply assert, without one scintilla of evidence:
“The joint view is that PHEs appear to make little material difference to the outcome of cases, and, despite PHEs being requested in around 50% of non-s.2 cases, that they add little or nothing to the evidential basis on which tribunals make their decisions.”
Where is the evidence on which this fundamental change to rights of the most vulnerable is based? Surely if this was a genuine consultation, it would be based on greater evidence about the instincts of …whom?
We are tempted to conclude therefore that this consultation is a sham. It will permit those who are driven by the desire to save money, above the importance of justice for those who are deprived of their liberty, to water down their fundamental rights.
What is meant by the term ‘outcome of cases’?
Does this mean the number of discharges are not affected, if so let us see the evidence? As a former Chief assessor of the MHRT Panel I always emphasised that success and failure of tribunals were not measured by discharge of not. Does this assertion take into account the number of recommendations or positive comments that have then affected outcome? Does it take account of those deprived of their liberty who might better engage with the care team after what they consider to be a fair and thorough hearing?
As the overriding objective requires:
(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done, and
(b) that the tribunal system is accessible and fair,
Where is the evidence that “PHEs appear to make little material difference to the outcome of cases” when measured against these legal requirements.
Where is the evidence that there has been any consideration of Article 6(1) European Convention on Human Rights?
“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing [my emphasis] within a reasonable time by an independent and impartial tribunal established by law.”
It could be argued that a judicial body that appears to be so greatly under the influence of the MOJ ceases to be an independent and impartial tribunal.
Bearing in mind that these proposals are made by a judicial body, where is the evidence that anything has changed since the comments of the Tribunal Procedure Committee in 2014?
“2.4 It is now suggested by the MOJ, with support from the senior HESC judiciary, that in the light of experience since the rules were changed in 2014,”
So we note that it is now suggested by the MOJ (who are trying to cut costs) with (very regrettably) the support of the senior HESC judiciary (who proposed this in 2014) that ‘in the light of experience’ these changes should be made. What experience and by whom?
Our understanding is that there has not even been a consultation from within the tribunal membership to canvass the view of the very people who determine these cases daily. Rather than the views of the senior HESC judiciary, what are the views of the medical, lay and legal members who hear these cases day in day out?
The arrogance of the language is disturbing.
“they add little or nothing to the evidential basis on which tribunals make their decisions.”
If they added something in 2014, what has changed other than the fact that the tribunal costs have increased in the light of demand.
If advocates and legal representatives form the view that they do add to the evidential basis on which tribunals make their decisions, where is the evidence that they are incorrect.
Where is the evidence that consideration has been given to the separate issues in s.11(7)(b) cases (where the lawyer is appointed by the tribunal to make ‘best interests’ decisions on behalf of their client). Bearing in mind that there may well be issues of a clinical nature that the lawyer may not pick up, the role of the medical member becomes all the more significant.
Bearing in mind the need for the independence of the judiciary, we are reminded of the importance of the doctrine of ‘separation of powers’. This was summarised by Lord Mustill in R. v Home Secretary ex parte Fire Brigades Union 1995
“It is a feature of the peculiarly UK conception of the separation of powers that Parliament, the executive and the courts each have their distinct and largely exclusive domain. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The executive carries on the administration of the country in accordance with the powers conferred on it by law. The courts interpret the laws and see that they are obeyed.”
It is worrying when at the behest of government (the MoJ) the judiciary seek to put together an argument on the flimsiest of evidence that was rejected in the 2014 consultation that the rights of some of the most vulnerable should be further undermined.
The consultation paper makes reference to other jurisdictions and other tribunals. It is regrettable that certain cherry picking has taken place. The best comparison is surely with a jurisdiction that operates the same Mental Health Act as England, namely Wales, where their separate and independent tribunal continues to have full PHEs and no paper references.
In relation to a comparison with other tribunals, these do not deal with the fundamental issues of deprivation of liberty.
Comments by individual accredited representatives at Peter Edwards Law in relation to PHE’s
In my experience the PHE is benefit to the client. On a very stressful and difficult day, meeting a member of the Tribunal is often a way of putting them at ease immediately. The client has the opportunity to maybe explain points of conflict within the notes/reports in private. Is having the client meet the medical member prior to the hearing which perhaps allows them participate in the hearing not making a difference to the outcome? Also if the patient doesn’t attend the hearing, the medical member can relay any concerns to the witnesses.
The medical member also is able to review the clinical notes. When you consider the report supporting continued detention may have missed out points from the notes, the doctor has the opportunity to see the original information.
In a S2 case where a person could in effect be having a Tribunal in the first week of their admission, I believe an independent ‘snap shot’ is vital. Not all S2 admissions require a full assessment and it may be with an expert view pretty much immediate this helps the person be discharged earlier.
It should not matter the percentage of discharges the PHE makes – it is a right of an individual to feel as though they are not being prejudiced by the treating team who are generally all of the same opinion. By having an ‘independent’ medical professional see the client beforehand does in my opinion place them at ease. A common statement by the client during pre-hearing discussions is ‘The Dr was very nice’ referring to the tribunal doctor. This is important taking account the client is likely to be agitated in any event due to being in a hearing and possible symptoms of their diagnosis! By having someone they are familiar with on the panel will alleviate such stresses/agitation which may be taken mistakenly as a symptom.
I have had countless clients completely freeze up in the FTT and not be able to express themselves because they become overwhelmed with nerves (Simon, who phones me at times daily but usually at least once or twice a week for a rant will not speak in an FTT/room full of people because he is far too anxious to do so), but he has been able to have a perfectly reasonable conversation with the MM in the more relaxed surroundings of the ward. I think that without the PHE there are a large number of clients who could simply not participate in the hearings without a PHE.
Additionally, there are often vulnerable patients who cannot attend the hearing (for various reasons) and it may well be that PHE is the only way at least one member of the panel will see the patient.
I also think that to say that PHE’s have no bearing on the decision (or there is little evidence it has) is completely misleading. All cases are so different and complex that comparison of simply figures is just not going to be accurate. In addition the FTT is not just about ‘discharges’ it is about someone exercising their right to an appeal, and being able to do so in a just a fair way, PHE’s are an important part of the process which is to provide access to justice, the right to have an appeal itself not just the outcome.
In S2 cases because the turn-around is so quick, and therefore the reports and information available is often very limited, and only received just before the hearing, this means that preparation is done in a short space of time and can be problematic, even if someone is legally represented and they are represented by an experienced lawyer. Lawyers are not clinicians and there may be issues around diagnosis and /or assessment that really the medical member is the only person who is able to identify. If there is no PHE these issues are likely to be missed, and this would clearly have an impact on there being a fair hearing.
They assert that the purpose of a s.2 is to allow up to 28 days for a proper assessment, and a short ‘snapshot’ from a PHE may assume too great a role in the assessment process and influence the tribunal to a disproportionate degree.”
If the idea of a medical member forming a ‘short snapshot’ of the patient (and this disproportionately affecting the outcome of the tribunal) is supposedly a bad thing, then surely doing away with the PHE does more harm than good. If there is no PHE, and the only exposure a medical member gets to a patient is in the MHT itself, then that is an even shorter snapshot!
If the medical member views the notes, this does not just include the recent daily nursing notes, but also details of the patient’s psychiatric history. The latter is, by its very nature, not just a ‘snapshot’ – it is a long-term overview of the patient’s MH.
“PHEs appear to make little difference to outcome … Proportion of patients discharged varies little, irrespective of whether a PHE was carried out.”
I’d say little difference is not the same as no difference. If the provision of a PHE is making a difference even in some cases, then it can at least be argued that it should be retained.
“PHE may present a potentially misleading picture of the patient’s condition where the patient is detained under s.2.”
This is a bit of a tenuous argument. In theory, an RC or nurse’s report or oral evidence could present a potentially misleading picture of a patient’s condition on a section 2 case, but we wouldn’t dispense with them!
Decisions without a hearing
Our concerns are primarily focused on those who may lack capacity. We note the assertion that:
“It is suggested by the MOJ and senior HESC judiciary that the proposed power on the part of the tribunal to direct an oral hearing on its own initiative (coupled with the right to Legal Aid without means-testing in these cases), provides a strong safeguard to capture those cases where an oral hearing is necessary for a fair and just disposal of the case, and to protect the interests of patients who lack capacity to decide whether or not to ask for an oral hearing if, in the absence of an application, their cases have been referred to the tribunal.”
Having glibly asserted that the tribunal can direct an oral hearing to protect the interests of patients who lack capacity to decide whether or not to ask for an oral hearing, there is nothing to indicate how the tribunal might gather this information or what criteria they should apply.
For example John has a severe learning disability and autism. He is detained in a secure unit under section 3. Even though he is very unhappy all those around him including his family believe him to be appropriately placed. At the end of the first 6 months his case is referred to the tribunal by the hospital. His unhappiness and objections are not referred to in the reports. He is above the financial limit of legal aid. How could his Article 6 rights be protected under these proposed changes?
To repeat our reference to Article 6;
“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing [my emphasis] within a reasonable time by an independent and impartial tribunal established by law.”
It would seem that the case of M.H. v. THE UNITED KINGDOM (Application no. 11577/06) 22nd October 2013 has disappeared from the tribunal radar.
The Court of Appeal had made two declarations of incompatibility namely:
“(i) section 2 of the Mental Health Act 1983 is incompatible with article 5.4 of the European Convention on Human Rights in that it is not attended by adequate provision for the reference to a court of the case of a patient detained pursuant to section 2 in circumstances where a patient has a right to make application to a Mental Health Review Tribunal but the patient is incapable of exercising that right on his own initiative;
(ii) section 29(4) of the Mental Health Act 1983 is incompatible with article 5.4 of the European Convention on Human Rights in that it is not attended by provision for the reference to a court of the case of a patient detained pursuant to section 2 of that Act whose period of detention is extended by the operation of the said section 29(4).”
Although these declarations of incompatibility were reversed by the House of Lords, they made some important assertions [the references are taken from the ECTHR decision]:
‘… it does not lead to the conclusion that section 2 is in itself incompatible with the Convention or that the solution is to require a reference in every case. Rather, it leads to the conclusion that every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so.’ [my emphasis] 
“A reference to the tribunal must be considered in the same way as if there had been an application by the patient: [my emphasis] see r 29. Hence although the initiative is taken by someone else, the patient’s rights are the same. “
“ As already seen, a reference is treated as if the patient had made an application, so that the patient has the same rights within it as she would if she herself had initiated the proceedings”. [my emphasis]
The European Court has emphasised many times the need for ‘special procedural safeguards’, for persons who are not capable of acting for themselves , .
We would draw your attention to an important and helpful paper written by Dr Lucy Series “MH v UK: Implications for the deprivation of liberty safeguards”
In it she refers to the importance of the UN Convention on the Rights of Persons with Disabilities which is not referred to at all in the consultation paper. She writes:
“This jurisprudence has in recent times been strengthened by UN Convention on the Rights of Persons with Disabilities (CRPD), Articles 12 – the right to support in the exercise of legal capacity, and Article 13 – on requiring ‘the provision of procedural and age-appropriate accommodations’ in order to facilitate effective access to justice. The question here was whether there were adequate special procedural safeguards to enable MH to exercise her Article 5(4) rights.
“The Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security (see Varbanov v. Bulgaria, no. 31365/96, BAILII:  ECHR 457, § 58, ECHR 2000-X).” 
In Stanev v Bulgaria 36760/06  ECHR 46,  MHLO 1 the ECHR reminded us of the importance of Article 5.4
171.Among the principles emerging from the Court’s case-law under Article 5 § 4 concerning “persons of unsound mind” are the following:
(a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;
(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;[my emphasis]
(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation [my emphasis] (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A).
One of the reasons that references exist is to ensure that if a person lacks capacity to make an application for themselves then there will be a proper judicial determination with the processional support of a lawyer (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-)
Comments by individual accredited representatives at Peter Edwards Law re decisions without a hearing
I had a tribunal today. If a paper review had taken place, I have absolutely no doubt that they would have considered it an open and shut case, and simply decided not to discharge. As it was, it became apparent at the hearing how misleading the reports were in terms of both the professionals’ views, and the plans for my client’s future treatment and care. The outcome was that the panel were very dissatisfied about the situation and agreed to make a (very strongly worded) formal recommendation for transfer to another hospital, which was exactly what we wanted. So having a hearing will hopefully result in my client being transferred to a specialist EUPD/ED unit after having spent the last 5 months on a ward totally inappropriate to meet her needs. Paper reviews cannot compare.
We represent a lot of clients at high secure/medium secure establishments where often people are for years at a time. These people are in my view those who will mostly be affected by the default position being paper reviews for reference hearings.
For somebody having a three year reference for example in high security, it would be extremely beneficial for them to hear the Tribunal discuss progress which has been made or even a pathway to discharge or lesser security. If the person has capacity and doesn’t instruct a solicitor, presumably they could go each appeal (3 year period) without ever being represented at a Tribunal. This doesn’t seem fair in any sense.
Clients effected by this the most will be long term high and medium patients. These patients often do not ask for a FTT because either they assume they will not be successful or are too nervous to apply, or those who do not have capacity to do so. In many ways makes them the most vulnerable group in terms of being able to exercise their legal rights. I think they would be extremely disadvantaged by there being an automatic paper hearing. It is beneficial for the oral hearing to go ahead, even if it is unlikely that they will succeed or they may not be asking for anything, because it gives a proper independent view. It could be argued that by looking over the paperwork there is an independent review, but without the hearing no challenge can be made as no questions can be asked, and often information is elicited at hearings that may not be readily evident by reading the reports. I think there would be less accountability if it is just writing a report as oppose to answering questions at a hearing.
I would also say that for reference hearings there are a number of vulnerable patients who simply go along with what they are told. In my experience they do want to get involved with the tribunal and would not themselves apply however unhappy they were with their situation. If the reference was simply a paper review they would just agree to that and not challenge it or ask to see a legal representative, or indeed ask for a hearing. They are likely to just go along with what they are told. These are vulnerable adults and the option of a fair hearing would effectively be taken away from them.
I think that it would be important to know what opting to have a hearing would involve – i.e. will it be a case of just filling in a form or is it going to be something you have to justify, and therefore the FTT might not agree to it.
This potentially is a slippery slope to paper hearings for all references regardless of whether someone wants to opt in, or there may be a good reason for a hearing (i.e. is the option even going to be properly considered)
“Paper review procedure should be extended to most references to the tribunal by managers or S of S. Default position – decisions are taken without a hearing, unless:
one is requested by a patient or representative
with such a request being granted as of right
where patient is under 18,
it is a discretionary reference under s.67 or s.71 of the MHA,
where the tribunal directs an oral hearing”
I think that my colleague Desi Williams has made the key point here: “If the person has capacity and doesn’t instruct a solicitor, presumably they could go each appeal (3 year period) without ever being represented at a Tribunal.”
Surely the whole point of having reference hearings is that every three years the government thinks it is right to have an outside, independent body come in and closely scrutinise whether a person’s detention is necessary, proportionate and lawful. How much can they really scrutinise this if they are just doing a paper review and they don’t have the witnesses in front of them to raise issues (they may not even be apparent on the face of the papers)?
We expect the FTT will respond by saying “well if you think a paper hearing is not a thorough hearing then you have always got the option to ask for a full hearing. It’s not like we’re completely abolishing full hearings for reference cases”.
That’s where Desi’s point is so important.
The patient who may have been detained for many years, does not apply to the MHT, but it is the RC’s view (rightly or wrongly) that they capacity to decline a solicitor (so nobody can then request a hearing for him) This could go on indefinitely without any outside body properly scrutinising his clinical team face-to-face about whether his detention is strictly necessary.
This links in to the extract in the consultation paper (my emphasis in bold below):
“1.2 s22(4) Tribunals, Courts and Enforcement Act 2007 requires rule-making powers be exercised with a view to securing:
(a) that, in proceedings before the FTT and UT, justice is done,
(b) tribunal system is accessible and fair”
It should be remembered that a MHT has both an inquisitorial role, and an adversarial role. Surely opportunities to be both inquisitorial and adversarial are removed to a large extent if somebody is only getting a paper hearing.
There is a risk that the FTT are putting themselves on a slippery slope where breaches of the European Convention of Human Rights and the Convention of the Rights of the Disabled call into question their very role and impartiality.
This would be a shame because there are many experienced tribunal members who day in and day out currently deliver a service which they strive to ensure meet their own objectives set out in the rules.
All posts by Peter Edwards
- Erosion of rights proposed by Tribunal – Peter Edwards Law hits back
- Blood on our hands: The case of X
- The myth of stigma?
- Full submission to House of Lords select committee on MCA
- When should local authorities stop people having sex
- Lessons in Mental Health Law & Incapacity law
- Ian Brady and Abu Qatada test our liberal values, but think before you join the lynch mob
- What do lawyers like me get up to?
- Summary of Peter Edwards Law submission to House of Lords select committee on MCA