To Prelim or not to Prelim? Is the medical member a help or hindrance?
There has been a change to the First-Tier Tribunal (Mental Health) process with regards to the preliminary examination by the Medical Member of the Tribunal (Rule 34 Tribunal Procedure Rules 2008). This came into effect in respect of case applied for (or automatically referred for) after the
6th April 2014.
Rule 34 now reads as follows:
34.—(1) Where paragraph (2) applies, 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, and may do so in private.
(2) This paragraph applies—
(a) in proceedings under section 66(1)(a) of the Mental Health Act 1983 (application in respect of an admission for assessment), unless the Tribunal is satisfied that the patient does not want such an examination;
(b) in any other case, if the patient or the patient’s representative has informed the Tribunal in writing, not less than 14 days before the hearing, that—
(i) the patient; or
(ii) if the patient lacks the capacity to make such a decision, the patient’s representative,
wishes there to be such an examination; or
(c) if the Tribunal has directed that there be such an examination.
Under the previous rules a preliminary examination was undertaken in all cases (unless impractical, for example to patient refused), under the new rules the preliminary examination will take place in all Section 2 cases (unless impractical), but in any other case only on the application of the patient or the patient’s representative.
In considering the changing of the rule, firstly it seems sensible to consider why the rule was as it was in the first place. This particular rule has always seemed a slightly odd one – in any other Court the idea of the applicant having a one to one chat with one of the ‘Judges’ responsible for making the decision in their case seems inconceivable, but this has been regular practice for Mental Health Tribunals.
Why when the Rules were originally written was a preliminary examination felt to be appropriate? And why has that view changed?
The process was that before the Tribunal the Medical Member would examine the patient, and their notes, and take appropriate steps to form a preliminary view of the matter. As the Tribunal is independent, this meant that the patient was seeing a psychiatrist, who was not involved in their case or with their clinical team, who would be forming the own independent opinion. It was felt that by having the Medical Member on the panel it would be lessen the need for patients to have their own independent expert evidence.
Of course it seems sensible to have an expert in psychiatry on the panel to advise the non-psychiatrist members on clinical issues, but to examine patient and form a preliminary view BUT not a concluded opinion, otherwise the outcome of the hearing would be prejudiced. The risk was that evidence might be gathered by the medical member and shared with the tribunal. The patient’s solicitor might not be aware of this and potentially it could affect the decision of the tribunal.
The main reason for the change in the rule is for the Tribunal to avoid preliminary examinations in cases where it is not necessary, and in some cases where it is undesirable.
Where a preliminary examination has taken place (both under the old rule and the new rule) the patient and their representative are given the feedback as to that preliminary view at the outset of the Tribunal Hearing.
The main concern for legal representatives is whether panels will be as confident in ordering discharges without the preliminary examination, and therefore will this change lead to a reduction in the number of discharges by the Tribunal?
The practical application of this means that we are now in a position where we have to advise our client’s (apart from those detained under Section 2) whether or not they should apply for a preliminary examination. Of course there are positives and negatives to the preliminary examination taking place, and these have to be weighed up and the client given all the information before making their decision.
The Medical Member is an independent party – separate from the Detaining Authority – and as such this does mean that there is an independent medical view. This can not only be useful with regards to an application, and in view of the legal criteria, but also in respect of potential treatment issues.
Part of the preliminary examination by the medical member is a review of the medical records. Whilst there is provision within the rules for ‘any’ panel member to review the records (Rule 32) this is rarely undertaken. The review of the records by the medical member could add a different perspective.
The Tribunal can be an intimidating process for patients and a one to one discussion with the Medical Member can be a better opportunity for them to express their wishes and put their point of view across.
In cases where a patient lacks capacity it can be of assistance to the Tribunal to have a full assessment of their understanding of the process and their rights. Typically if a patient lacks capacity the person who is responsible for the capacity assessment is the Responsible Clinician, however, the Law Society guidance for mental health representatives suggest that the RC should not be asked to do an assessment of capacity as this is a conflict of interests. Therefore an independent view of their capacity is extremely important.
In cases where a patient chooses not to be represented they are potentially at a disadvantage and it should be fully explored as to whether they have the capacity to make this decision, and if not whether it would be in their best interest to be represented (in these circumstances the Tribunal can appoint a representative under Rule 11).
In cases where the patient will not be attending the hearing it is an opportunity for at least one of the panel members to have met the patient.
In some cases during the preliminary examinations patients could report information differently to the Medical Member, which could be detrimental to their application.
Patients can find the preliminary examinations difficult which could affect their presentation at the hearing itself. They can take a negative view of the preliminary examination and it may affect their attitude towards the hearing, or can get an over optimistic view of the way the examination went and have unrealistic expectations, which can be extremely distressing.
In the event the Medical Member takes the preliminary view in agreement of the Detaining Authority this can make an application more difficult to progress.
In some cases the preliminary examination will not add anything to the Tribunal and therefore could be deemed unnecessary.
Sadly, some medical members conduct their examination just before a hearing. His creates the double disadvantage of the patient being exhausted and also their solicitor not getting access to them before the hearing.
Where the patient lacks capacity, the rules require their solicitor to make their decision on their behalf. A solicitor is an advocate not a decision maker.
Our role as a representative is to present our client’s case in the best way possible and to ensure that they have a fair hearing and often the preliminary examination, and/or the examination of the medical records, is an important part of this process. I think where a client lacks capacity it is essential that a preliminary examination takes place and there is an independent view on their ability to engage in the Tribunal. Where clients have capacity, they should be fully advised about the rules, and ultimately, given we act on instructions, it has to be the client’s decision whether they want one or not. However, it is important that the pro and cons are very carefully explained to them.
Peter Edwards Law