There has been very little coverage of those who are detained under the Mental Health Act at this difficult time. As part of a large team at Peter Edwards Law, we specialise in representing and supporting those who have been deprived of their liberty in hospitals and care homes. We believe that there is a need to try to empathise with the frustration of the patient experience currently.
The theme for this year’s Mental Health Awareness Week’ is ‘kindness’. I have searched online and I note that various charity websites have videos, campaigns, merchandise and tools to promote a kind act.
Reading the sports news this morning, which by the way currently isn’t very captivating, I came across many articles from ex-professional football players discussing their own mental health struggles. They included Craig Bellamy, Luke Chadwick, Paul Merson as well as the lesser known Cedric Anselin, who played for Norwich apparently. These are no doubt published to encourage others to evaluate their own position and where necessary seek support or guidance.
Spending my working life supporting those who suffer with mental ill health, I cannot help but feel for those who are currently detained under the Mental Health Act (MHA) in hospital amidst this global pandemic.
Since the middle of March 2020 those detained in hospital under the MHA who want to challenge their detention have had to make do with remote legal representation and seismic changes to what we consider to be normal practice.
People’s right to a ‘fair hearing’ under Article 6 of the European Convention of Human Rights has been severely restricted with one tribunal member instead of three. Patients have to try and follow the often lengthy hearing without a lawyer by their side or IMHA (Independent Mental Health Advocate) present. Feedback I have received from clients included finding it very difficult speaking up during the hearing or asking for a break when they feel distressed.
The ability for the psychiatrist on the tribunal panel to meet the patient in advance of the hearing, talk to the staff and read the case notes (Rule 34 England & Rule 20 Wales) was suspended. The guidance from the Tribunal Service on 15th April 2020 stated that these had to be cancelled because ‘people cannot meet together’.
There is often a delay of 2 or 3 days in patients receiving the decision of the tribunal. The inability to communicate the decision as soon as the hearing is concluded only adds to the stress and causes relationships between representative and client to be fractured. Clients very reasonably, having geared up for this major event in their lives, want an answer.
I keep thinking how I would feel having to go through a tribunal, without actually meeting the person who would be representing me or the panel and it doesn’t feel right. There is no question that our ability to represent clients has been curtailed through not being able to access the most up to date nursing notes, as well as speaking to staff on the ward who provide their valuable professional opinions often having known patients in forensic settings for many years.
I have sought to ensure that clients are as involved in the tribunal process as possible by arranging ‘facetime’ meetings with me as well as preparing written submissions to the tribunal on their behalf. These are useful for setting out points of case law or legal criteria for the tribunal. I write them in plain English and provide them to my client before the hearing. I believe that having this document gives a person the best chance to understand the often overused legal and medical jargon, particularly whilst their legal representative isn’t alongside them to explain. It also acts as an aide memoir for me to ensure that I cover all the points.
The wonderful staff in hospitals and care homes have had to cope with a surge in telephone calls from families and organisations like ourselves seeking to speak to patients or trying to sort out arrangements for tribunals etc. They most definitely deserve the regular appreciation of the public (as well as fair remuneration from the Government).
Mental health awareness is this week’s hot topic and I dearly hope that raising awareness of this topic will be of benefit.
I will however ensure that I continue to protect the rights of those who have their liberty removed under the MHA. I will continue to make the best out of a bad situation ensuring that clients are heard and that they continue to have the ability to challenge the lawfulness of their detention, as fairly as possible.