'Getting Heard' first appeared in Mental Health Today in June 2011. To subscribe to the magazine click here.
A recent report by the Care Quality Commission and the Administrative Justice and Tribunals Council examines the views of patients appearing before mental health tribunals in England. Penny Letts explains
The First-tier Tribunal (Mental Health) is the primary means for patients in England to appeal against their compulsory detention under the Mental Health Act 1983 (MHA). The tribunal is an independent judicial body administered by the Tribunals Service - since April 2011, part of Her Majesty's Courts and Tribunals Service - an agency of the Ministry of Justice. It provides one of the key safeguards for patients detained or subject to community treatment orders under the MHA.
The Tribunals Service carried out an annual customer satisfaction survey of tribunal users but largely excluded mental health patients from this because of the practical difficulties in gaining access to them. It is important that people who have been detained should be treated with dignity and have their rights protected - and their views heard - by each part of the mental health and justice systems affecting them. To this end, in 2010 the Administrative Justice and Tribunals Council (AJTC), which reviews the administrative justice system, and social care regulator the Care Quality Commission (CQC) undertook a joint project that aimed to give a voice to the people who use mental health services in order to improve the operation of the tribunals that adjudicate on their detention and treatment. This project represents, for the first time, an assessment of patients' first-hand experiences of the Tribunals Service and the tribunal, including their views on the administrative procedures and the tribunal hearing itself. The report, 'Patients' experiences of the First-Tier Tribunal (Mental Health)' identifies individual examples of what is happening in practice and makes recommendations for improvement.
In June to August 2010 CQC mental health act commissioners visited 16 hospitals in two pilot areas - Greater London and the East of England - to carry out interviews with 152 patients who were, or had been, detained in hospital. The commissioners sought views on their experiences of applying to and appearing before the tribunal. These patients volunteered to participate after the hospitals sent out a general invitation. The project was designed as a small-scale illustrative pilot and was not intended to be statistically significant or illustrative of the population of detained patients.
The interviews covered five broad areas: the time taken to deal with the application to the tribunal; access to and standards of legal advice and representation; the pre-hearing examination by the medical member of the tribunal; the tribunal hearing, and the tribunal's decision. The report of the project was published in March. While the report attempts to identify possible trends and suggest approaches to improving the tribunal system, most importantly the project aimed to allow patients to speak for themselves. The report quotes directly from patients' responses and provides illustrations in order to highlight their particular views and comments in describing their experiences.
The people interviewed had different experiences of the tribunal process. Less than a quarter had obtained the outcome they wanted. Nonetheless, more than half made positive comments, not least on the importance of being heard. This confirms that the tribunal is an important safeguard for patients, not only as a means of challenging their detention but also in finding out about and measuring their progress and checking whether care plans are appropriate and meeting their needs.
Support with applications and representation at the tribunal
The findings suggest that while the vast majority of patients rely on legal representation, many are not well placed to ensure that their lawyers are representing them properly. This is particularly significant when so many are reliant on referrals to lawyers by the hospital.
As hospital managers are usually the opposing party in a patient's application to the tribunal it is important that patients are able to get independent advice about their choice of lawyer and have access to lawyers who have been accredited as competent to provide representation at the tribunal. Patients may also feel that they are in a difficult position when commenting on their lawyer's performance or reporting poor practice. Other people present at tribunal hearings, in particular the tribunal panel, should be encouraged to recognise and report poor or inadequate standards of representation or inappropriate behaviour.
Delays seemed to be a substantial factor in many of the respondents' negative experiences. Nearly half reported that they had been subject to delays, which caused significant distress and anxiety. A particular element of distress and frustration caused by delays seemed to flow from a lack of information about how long the tribunal process was supposed to take. Nearly half of the respondents received no information about this. Of those who believed they had been subject to delay, a third had not received or understood the reasons for it. The report recommends that patients should be informed about the predicted timescale for the tribunal process when their application is acknowledged and again if any delays arise, including reasons for this. Over the past year, the Tribunals Service has taken steps to try to minimise delays, for example by improving booking procedures for hearings, using case management powers to issue directions requiring reports to be produced on time and by trying to avoid unnecessary adjournments. The report welcomes and supports these initiatives and suggests further measures to tackle the specific problems identified by patients.
The pre-hearing medical examination Respondents were asked to comment on their experience of being interviewed by the medical member of the tribunal panel before the hearing, including what information they had been given about the purpose of the examination and whether its role in the tribunal process had been explained to them. Several patients interviewed could not remember their pre-hearing medical examination and therefore could not comment on the process. Of those who responded more than a third reported that their examination had taken place on the day of the hearing, with another third between one and three days before the hearing.
Those who remembered the details of the examination gave mixed reviews of the process, describing very different approaches to questioning by medical members with some asking questions about all aspects of their lives and others focusing on only one or two issues. A quarter of respondents said that the medical member had not explained that the results of the interview would be shared with the tribunal. It is essential that patients receive an explanation of the purpose of the pre-hearing medical examination and are told that the tribunal will take the results into account at the hearing. Without this, patients will expect the discussion to be in confidence, which it is not. The report recommends regular training for medical members on how to conduct pre-hearing examinations in a manner that allows them to gather all the relevant information and for the patients to feel that their voice is being heard. Patients should also receive an explanation of the purpose of the examination and its relevance to the tribunal hearing.
The tribunal hearing
Respondents reported positive experiences of some elements of the tribunal hearing, with nearly all saying that the judge had introduced the panel and other people in the hearing room. Most reported that the judge had explained what would happen, at least in outline.
Echoing comments about delays, some respondents expressed concern about the provision of information, with a quarter saying that they had received no substantial information about the content and process of the hearing in advance. Many also complained about having limited access to reports, which form an important part of the evidence on which the tribunal bases its decision. Nearly a third believed they had never seen any of these reports. Some respondents reported problems with the hearing room being too small, which made them feel crowded and more intimidated. Some felt they were not given sufficient opportunity to be heard; a third felt they weren't listened to and nearly half felt that the tribunal didn't give equal importance to their views as compared with other witnesses. Appearing before a tribunal, coupled with the importance of the issues to be decided, is very stressful for patients.
While the tribunal is a judicial process that must follow procedural rules, members of the panel should try to put patients at ease. Patients should be able to see the reports provided for the tribunal in good time to be able to discuss them with their legal representative. The report makes several recommendations about the hearing, aimed at ensuring that patients receive better information about their legal rights and the tribunal process, including:
- Patients and their lawyers should have access to reports in good time before the hearing
- Hearings should take place in rooms designated for use by tribunals, and which comply with the specification issued by the Tribunals Service
- Tribunal judges should explain the normal order of proceedings but offer patients the opportunity to give their evidence first, or to make brief statements at the beginning and end of the hearing
- Panel members should receive regular training in communicating with patients and putting them at ease.
Nearly all respondents reported that they had received the decision of the tribunal quickly on the day of the hearing, in the majority of cases verbally from the tribunal judge.
But there were concerns about how information was provided after this. Nearly a quarter of respondents claimed they never received a written copy of the decision. Those who did reported substantial variation in the time they had to wait to receive it. One in five did not fully understand the decision, yet two thirds said they had been offered no further explanation. Respondents were also unclear about any further right of appeal, whether by way of further application to the First-tier Tribunal or to the new Upper Tribunal on a point of law. The report recommends that all patients should receive a written copy of the tribunal's decision as soon as possible after the hearing and have access to a secure place to store such confidential documents. Patients should also be informed of their right of appeal on a point of law to the Upper Tribunal. It is also suggested that legal aid fees should include provision for legal representatives to spend time with patients after the hearing to explain the decision and the reasons for it, and to discuss further options.
Usefulness of the tribunal experience
Respondents were asked whether the tribunal had been useful, even if they had not achieved their desired outcome - in most cases to be discharged from detention. More than half the respondents had positive comments to make even though they may have been critical of some elements of the process.
Some made general comments, such as "it was important to be heard" or "it got me thinking about my future". Others were more specific, commenting that the tribunal's decision had given them new insight into their progress, their care plan, the reasons for their detention and what they needed to do to progress. Others had mixed feelings or found the experience more generally negative, perhaps because of the way their case was handled.
This study breaks new ground in accessing patients' experiences of tribunals and the Tribunals Service. Although a limited pilot, its findings provide new insights into existing problems and highlight some problems not identified before.
It places the spotlight on important issues such as providing information and the ability of tribunals to respond to multiple and unusual conditions. Its most important conclusion - which should pave the way for future research - is that it is possible and worthwhile to collect feedback directly from detained and community patients about the tribunal system.
Picture posed by model