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Representing clients at Tribunals during Covid in England and Wales.

This article examines the changes caused to Tribunal hearings and compares the systems in England and Wales. Clearly the rights of patients in England are better protected by the new procedures.

2020 has definitely been a year like no other (with 2021 continuing in the same vein), and this has meant that we are all having to adapt to a new normal, and for my department, this is a focus specifically on the Mental Health Tribunal and representing clients detained under the Mental Health Act (MHA).

The initial change was immediate lockdown, which meant no face-to-face contact with our clients, as well as no tribunal hearings.  This was a big change for myself and my colleagues in the Tribunal department, as we used to spend the vast majority of our time out on the road visiting clients and attending hearings in person.  It is a real challenge representing clients, and in particular new clients, when you are only having contact over the phone.  How much worse must it be for the vulnerable person that we were representing. Not to have been able to see us and build rapport when they are in often a very desperate situation could be quite distressing.

I have recently represented a young vulnerable adult with autism who I have only been able to speak to on the phone, and for someone who naturally has communication challenges to be able to engage in this way is incredibly difficult.  Particularly when talking to someone face-to-face, it is easier to pick up on behavioural queues, that might mean someone is not actually understanding what you are saying, or who is becoming uncomfortable or overloaded, without realising you may be pushing and challenging them. Thankfully we have now been able to build a rapport, and he has been able to give his trust to a stranger over the phone.  This reinforces to me why I chose to work in this field and represent our clients, and how important it is that they are assisted in having a voice.

Over the course of the pandemic, we have had to become much more adept at being able to use technology such as video-link meetings. This is certainly an improvement on phone conversations, although it is not always possible. It is easier to facilitate in secure hospitals rather than the acute sector. 

At the start of the pandemic, the Tribunal put in emergency provisions, and the Telephone hearings were done with only the Judge (as legal member).  The Tribunal is usually a panel of three people, the legal member, the medical member and a ‘specialist’ member. 

Additionally, in Section 2 cases, the medical member would automatically conduct a pre-hearing examination (PHE) with the patient.  In all other cases this was optional, but if requested would be granted.    This means that the patient meets with the medical member ahead of the hearing.  There are advantages and disadvantages of this, which I have covered in another article.

Fortunately, by July 2020 video hearings were established (in England, but not Wales).  This also meant that the full panel resumed with all three members adjudicating.  These are done on a secure cloud platform, which the panel members can lock and control as to who has access to the hearing.

I have to say, however, it is a rather bizarre feeling to be representing a client in a Tribunal hearing, whilst sat at home!  (The government guidelines being to work from home where possible and Peter Edwards Law practices are Covid safe and in accordance with government guidance.

Not surprisingly, this did take some time to get established.  A number of hospitals had significant difficulties in setting up the technology and procedures for patients to be able to have a seamless and uninterrupted Tribunal experience. It unfortunately led to an increase in the need for adjournments as not all parties have been able to join or access the hearing.  These delays are of course distressing and frustrating for clients who are understandable keen to have their appeals heard

There remains a significant difference when comparing hearings in England to Wales.

The Mental Health Review Tribunal for Wales (MHRTW) have not wavered from telephone hearings throughout this period. The MHRTW issued an updated Practice Direction in October 2020 stating that ‘they shall hold hearings by telephone or video where possible’ however this just has not happened and they are still all taking place by phone.  Therefore clients in Wales are at a disadvantage to those in England and are not getting the same access to justice.

The use of remote/virtual hearings has also had an impact on the way that the tribunal decisions are given.  In England participants are invited to leave the video-link after the hearing for the panel to deliberate, and are either invited to re-join the video-link at a set time or are asked for contact details (secure e-mail or phone number) and the judge will contact you with a short form of the decision that day

However, in Wales, the MHRTW decisions are not given on the day of the hearing, but e-mailed across on the next working day.  For Friday hearings this leaves patients waiting over the weekend for the outcome of the decision.  My colleague experienced a Friday afternoon hearing in Wales where it was quite clear that discharge was the likely outcome and was able to make submissions to seek the decision of the hearing that same day to avoid the long wait, but this is not granted as a matter of course.

It is clearly vital that the decision is given as soon as possible. Where possible the client should hear the decision from the Tribunal themselves.  The is surely part of the concept of a ‘fair hearing’. Due to the technology, it can often mean that the patient cannot come back to the virtual hearing room for the decision and will be told by their representative in a phone call. 

Disappointingly, pre hearing examinations (PHE’s) were not recommenced when the video-link, full panel hearings commenced.  The Tribunal had issued a Practice Direction The Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) , which stated that PHEs are not “practicable” unless an authorised judge directs that “in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns”.

This meant that an application could be made for a PHE but it would not be granted unless there were ‘exceptional circumstances’.  Regrettably, the Tribunal did not specify what those might be.  The main barrier appeared to be that in order to have a PHE, the hearing would need to be listed for a full day, with the PHE taking place in the virtual hearing room at 9.30 and then the Tribunal starting at 11.  The meant there would be a burden on the listing of hearings as there would not be as many rooms available (i.e. only able to list 1 instead of 2 hearings per room per day). 

Fortunately, the case of EB v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 362 (AAC) has clarified the position.  The Upper Tribunal (UT) found that a Practice Direction cannot override the rules of procedure.  They also ruled that ‘exceptional circumstances’ merely means ‘practical’, and the Tribunal could not refuse on any grounds unless related to ‘practicality’, and as there were provisions to have a PHE, then it is ‘practical’. 

Since this case I have had all my applications for PHE’s accepted.  This is extremely positive for clients, although for clients that had already had hearings listed, this has led to the hearing being postponed and then listed on another day for a full day, which has meant a slight delay.  With new tribunal applications, this can now be done quickly and hopefully be granted prior to listing and avoid such delays.

Due to the new format, we have generally adapted the hearings by allowing patients to give their evidence first, and then come back on any issues arising at the end of the hearing.  There has always been this option, however, but in practice generally patients would give their evidence last.  I have actually found that this flexibility can be very helpful.

I have found there can also be flexibility in terms of attendance for the full hearing.  The experience of Tribunals can be incredibly difficult for some patients. There is a lot at stake.  

Whilst I would always ensure that all steps are taken to support a client’s participation, this can be difficult for them, and sadly I have had hearings in the past where the patient has had to be removed from the hearing to prevent a risky situation developing and the hearing completed in their absence. 

I think the video-link adds another dimension that we have not had before, for example often patients are sat in a room with just a nurse, who they know, and then the rest of the attendees are on screen.  This can be far less daunting.  Additionally, they can mute their machine whilst other witnesses are talking, which allows them to express any frustrations without making the hearing impossible to conduct.

I had one hearing with a vulnerable client who was in the room with the full clinical team and who sadly got very distressed and struggled not to interrupt. The clinical team were concerned about their safety whilst giving evidence in front of him due to the level of disagreement with their views.  In certain circumstances, the Tribunal have a power to exclude a person from attending the hearing, one being causing a disruption, another being preventing another person from giving evidence or submissions freely.  At an old-style hearing, the patient could unfortunately be removed and unable to hear the full extent of the evidence.  This calls into question the whole fairness of the hearing (in accordance with Article 6 of the European Convention of Human Rights). However, on this occasion the client was returned to the ward and the staff supported him to call in and then mute the call so he was able to listen to the entire hearing safely and without disruption. 

Of course, the opposite can also be true and patients can be even more nervous when they see themselves on screen.  Mistrust of technology can also cause distress. 

I did a hearing where the patient was sadly quite elated and seeing herself on screen compounded that, but also made her very nervous, which did effect the way in which she presented herself in front of the panel.

Something that we have had to be mindful of, and be creative around, is the challenge of how we obtain instructions from our client during a hearing.  If it is an attended hearing and my client is sat next to me, they can speak to me, or write something down and pass it to me, or we can request a break for a consultation. 

This is much more of a challenge when technology is involved.  At times it means that all those attending the hearing have to log out of the hearing so the patient can return to the ward and access a phone, and then everyone log back in at a set time, maybe then needing to break again for longer, assuming everyone has re-joined successfully.  My experience is that this is always accommodated, but it can lead to further delays in an already drawn out hearing process.

I had one client texting me throughout the hearing, which was helpful.

Another positive is that the Tribunal (England) have started to direct that all medical records were made available to the legal representatives.  This has actually been a real bonus, because previously there was a process to get access and copies of records, which could be quite protracted.  Often you would have to sit in a ward office and review these on a computer prior to a hearing, but now we receive copies in advance, which can be really beneficial.

Unfortunately, the MHRTW have not adopted this practice and therefore it can be problematic accessing the notes, which is again a concerning disparity in access to justice based on address. 

My colleague who conducts tribunals in Wales has noted that another major difference is that whilst in English hospitals they have computerised care notes, systems many Welsh hospitals patients records are actually still handwritten documents, as opposed to electronic, and therefore to send out this would require somebody within the unit to scan each page to then send via email.

Clearly there are still more changes to come, although the Tribunal have stated that the plan is to go back to attended hearings in the future, we are still not clear as to when that will be.  For now, we will continue to adapt to the new normal and seek to represent our clients to the highest level possible as the circumstances provide.

Jenny Oxton

Head of MH(R)T Department

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