Mental Health Tribunals in England and Wales: a Representative’S Guide Chris Jones, Srikanth Nimmagadda & Paul Veitch

Advances in psychiatric treatment (2013), vol. 19, 40–47 doi: 10.1192/apt.bp.111.009571

ARTICLE Mental health tribunals in England and Wales: a representative’s guide Chris Jones, Srikanth Nimmagadda & Paul Veitch

Chris Jones is a consultant to organise and manage proceedings as they see fit. Summary forensic psychiatrist at the Norvic This may lead some psychiatrists and managers to Clinic in Norwich, UK and is a Consultant psychiatrists are familiar with mental underestimate the legal status of the hearing: many mental health tribunal member. health tribunals, at which they appear as key Srikanth Nimmagadda is a seem to accept discharge by a tribunal more in the witnesses giving both factual evidence and consultant forensic psychiatrist at spirit of a minor disagreement of clinical opinion expert opinion. They also commonly act as the Cheswold Park Hospital, Doncaster, than an upholding of a serious legal challenge. The UK. Paul Veitch is a mental health representative of the ‘responsible authority’. The lawyer in private practice and a implications of this in terms of roles and respon non-adversarial nature of MHT proceedings may mental health tribunal member. sibilities, and in terms of training and continuing also disguise the fundamental conflict between the Correspondence Dr Chris Jones, professional development, have received little interests of the patient and those of the hospital Consultant Forensic Psychiatrist, attention. Psychiatrists should not accept a repre and psychiatrist seeking to continue detention. Norvic Clinic, Norwich NR7 0HT, UK. Email: christopher.jones@nwmhp. sentative role unless they are sure that they have Psychiatrists are familiar with giving evidence nhs.uk the necessary competencies and resources – to tribunals. In legal terms, this includes evidence competencies that are alien to most clinicians and of fact (what the doctor knows about the patient’s resources that are not available in many services. presentation and treatment) and opinion (what This article outlines those requirements so that the doctor believes about issues such as diagnosis psychiatrists can make better-informed decisions and prognosis). Although they are often invited about whether or not to undertake the role and provides practical guidance for those who choose to discuss issues beyond the immediate medical to do so. management of the patient, as witnesses psychiatrists are ultimately there to provide information Declaration of interest that will assist the tribunal. A witness is obliged None. to give accurate and complete evidence (‘the truth, the whole truth and nothing but the truth’) what- Despite their relative informality, mental health ever the consequences for the outcome of the case. tribunals (MHTs) are legal proceedings that The role of a representative is fundamentally address one of the fundamental human rights: the different. Although there remains a duty to assist liberty of the individual. The outcome of a tribunal and cooperate with the tribunal, the representative’s is of great importance to the detained patient, role is to present a case as instructed by the party but the interests of others are also involved. The they represent. This will usually include making consequences of unjustified detention or premature submissions on points of law and the facts of the discharge are significant for the responsible case, questioning witnesses to bring out the points authority (often called the RA), the individual of evidence that support the case and expressing responsible clinician (often abbreviated to RC) and a view on issues of procedure so as to protect the the public (Prins 1997). It is, therefore, surprising party’s interests. They must never mislead the that the responsible authority rarely appoints a tribunal, but representatives must also conduct legally qualified representative and in most cases the case in accordance with the instructions of the is not represented at all. party that they represent. In England and Wales, procedures are governed by the Tribunal Procedure (First-tier Tribunal) The roles and responsibilities (Health, Education and Social Care Chamber) of the representative Rules 2008 (the ‘MHT Rules’). There are different Neither the Mental Health Act 1983 nor the provisions in other jurisdictions, including MHT Rules are explicit about the role of the Scotland and Northern Ireland, and although representative at a tribunal; what guidance there many issues will be common to other settings, is tends to be written from the perspective of this article will deal specifically with the situation patients’ representatives (Gostin 1992; Eldergill in England and Wales. The MHT Rules refer 1997; Law Society 2011) and gives little instruction explicitly to the informality of tribunal hearings, to those representing trusts. Representatives and permit tribunal judges considerable discretion have a duty both to promote the case presented

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by the party that they represent and to help the BOX 1 Responsibilities of a representative of the responsible authority tribunal in reaching the correct decision. We suggest that this encompasses the roles listed in • To articulate a case for detention that is • To respond to legal issues raised by the Box 1. To discharge these duties, we suggest that a justified by the evidence presented and by patient’s representative or the tribunal, representative would normally be expected to have relevant legal authority interpreting or distinguishing authorities the knowledge and skills listed in Box 2. • To ensure that witnesses for the where appropriate responsible authority address the relevant • To participate actively in all discussions Should psychiatrists represent the statutory criteria relating to the management of the responsible authority? • To ensure that witnesses for the proceedings to ensure that the responsible authority is not disadvantaged We would urge psychiatrists to think carefully responsible authority are enabled to express their opinions fully and clearly • To provide (directly or through the before accepting the representative role. Most involvement of other witnesses) any psychiatrists will lack the skills and competencies • To identify and address the legal issues relevant to the case and to present information that will assist the tribunal required, as well as the necessary resources and interpret the statute and case law in reaching an appropriate decision or and support to discharge the duties adequately. authority on which the responsible in understanding the implications of The consequences of providing inadequate authority’s case relies that decision for the patient’s future representation are significant. This article aims management • To test the accuracy of factual evidence to elucidate what the representative role entails, and the justification for opinion evidence • To acknowledge any weaknesses in the so that psychiatrists are better placed to make presented on behalf of the patient, responsible authority’s case and to ensure an informed decision whether or not to represent. and to challenge this vigorously where that the case presented is not misleading For those who do, we hope the suggestions will be appropriate • Never to mislead the tribunal useful; for those who do not, the identification of the competencies and resources required may help to explain and justify that decision. health lawyers who generally represent patients. Several factors support the practice of a Guidance for doctors appearing before tribunals responsible clinician acting as representative. It generally relates to the role as witness, rather than has been common practice, has given rise to little representative (Lodge 2005). apparent concern or comment and contributes to the relative lack of formality of the proceedings. It Conflicts of interest also allows the responsible clinician, who should be the person most familiar with the case, to take It is generally considered important that an advo an active part in the hearing, for example offering cate in legal proceedings should not be personally an opportunity to correct misunderstandings or misleading information given by others. In a UK BOX 2 Skills of a representative of the responsible authority survey, the majority of consultant psychiatrists indicated that they would want to act as a • Have a detailed understanding of both detention and the legal issues that this representative (Nimmagadda 2008). the statutory and case law relating to challenge will raise On the other hand, there are significant reasons detention under the Mental Health Act • Know the scope and limits of the why responsible clinicians may not be the best 1983, including the application of human representative’s rights during the tribunal people to represent the responsible authority. Most rights legislation hearing, so as to be able to intervene importantly, they usually lack the legal knowledge • Understand the techniques of statutory effectively and experience required. Clinicians’ knowledge and case law interpretation and be able • Understand the functioning of the mental of the Mental Health Act has been found to be to present a valid legal argument based health tribunal (MHT) as an inquisitorial variable (Harrison 1996; Humphreys 1998; Bhatti on this rather than an adversarial tribunal • 1999; Peay 2001), particularly on issues away from Have advocacy skills sufficient to present • Understand the rules regarding the day-to-day application of the Act. The rapid and argue a legally robust case admissibility of evidence before MHTs and growth of MHT case law and the introduction of • Be familiar with the details of the the distinction between factual and expert the Human Rights Act in 1998 (Bindman 2003) evidence to be presented on behalf of the evidence means that many of the legal concepts are consid responsible authority and understand the • Be confident to intervene assertively but erably removed from the experience of responsible legal justification for continuing detention constructively during the proceedings based on that evidence clinicians (Passmore 2003). A UK survey of con • Be skilled in the questioning of witnesses sultant psychiatrists (Nimmagadda 2008) found • Recognise any weaknesses in the so as to establish the points necessary poor levels of knowledge and understanding responsible authority’s case and how they to the responsible authority’s case and to relating to MHT procedure, particularly in relation affect the justification for detention test thoroughly the evidence and opinion to the role of the representative, suggesting that • Recognise the ways in which the patient’s given on behalf of the patient many responsible clinicians will be significantly representative is likely to challenge disadvantaged compared with experienced mental

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interested in the outcome. In an MHT, the prac of MHT procedures might be well placed to do so, tice of the responsible clinician and the ongoing perhaps with further training and supervision, but decision to continue detention are precisely the managers, approved mental health professionals issues that are being challenged. Moreover, there (AMHPs) and others might also have the requisite are potential conflicts between the interests of the skills and experience. responsible authority, which the representative should be expected to protect, and those of the Acting as a representative responsible clinician explaining and defending his As a consultant psychiatrist, if you are approached or her own professional practice. by the responsible authority to represent them at There are even more significant conflicts an MHT, you need to know what that will involve. between the role of a representative and a doctor’s This section will guide you through the process, overriding professional duties to the patient, who and our top tips are summarised in Box 3 must always remain the doctor’s first concern (Sarkar 2005). Unlike a lawyer, a psychiatrist may Before the hearing feel inhibited from actively challenging the evidence The MHT Rules now stipulate that all representa given by witnesses during the MHT because tives must be appointed in writing. Psychiatrists doctors are trained in consensual and team-based should consider and actively decide whether or not working rather than adversarial confrontation. to take on this role and seek agreement between It is also inherently difficult to challenge and the responsible authority (which may choose to undermine colleagues such as nurses (with whom be represented by someone else, or not at all) and the psychiatrist must continue working), other the responsible clinician (who may be reluctant to clinicians giving independent evidence on behalf of take on this role even if the responsible authority the patient (who may have continuing professional requests it). contact with the psychiatrist) and, most crucially, the patient. Allocating time to prepare A responsible clinician acting as representative may be inhibited from cross-examining thorough Acting as representative is not something that ly a patient with whom he or she has to maintain begins at the hearing – proper preparation is a positive therapeutic relationship long after essential. It is essential to allocate sufficient the MHT. Manuals for lawyers (Du Cann 1964; time and resources for preparation: solicitors Napley 1991) give considerable detail about representing patients typically spend several cross-examination techniques that would sit hours preparing for a hearing. As the responsible uncomfortably in any doctor–patient relationship. clinician you may be able to save some time, being familiar with the case, but you may need Alternatives to responsible clinicians extra time to get to grips with the legal issues. representing The time for preparing as representative should be additional to the time that would be spent If the responsible clinician is not to represent the responsible authority, what alternatives might there be (remembering that this is ultimately an issue for managers to determine)? One option is for BOX 3 Top ten tips for representatives the authority to be unrepresented – arguably this has always been the case in many tribunals where 1 Do not accept the role unless you are sure you can fulfil it competently the doctor has not taken an active representative role. However, this may underestimate the legal 2 Preparation is key importance of the hearing and the consequences 3 Play to your strengths – do not try to ‘out-lawyer the of a wrong decision resulting from a failure of the lawyers’ responsible authority to present a robust case. 4 Do not overcomplicate – keep it simple Another option is for the responsible authority 5 Be constructive, not confrontational to engage qualified legal representatives, which 6 The responsible clinician has credibility – use it already happens in a small number of high- 7 Consider three domains: facts, issues and legal rules profile cases, but to do so routinely would divert substantial funds from activities more directly 8 Relate your arguments to the statutory criteria considered by the tribunal related to patient care. A third option would be to identify appropriate members of staff, not directly 9 Explicitly address role conflicts involved in a particular case, who might take on 10 Access legal advice when necessary this role. Responsible clinicians with experience

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preparing to give evidence (writing a report, the patient’s behalf and what factual evidence and reading notes and other reports, interviewing the legal argument you will present to the tribunal patient) and should be identified within the job to rebut them. All of your arguments should be plan. You may need additional support by way relevant to the statutory criteria that the tribunal of secretarial assistance and access to up-to-date will consider: much information that is important law reports and legal texts and to qualified legal clinically may not address the relevant legal issues advice where appropriate. and the crucial legal point may rely on evidence that is of limited clinical significance. Being aware of your responsibilities As soon as it is decided that the responsible Familiarising yourself with the evidence clinician is to act as representative, the MHT office You will need to be conversant with all of the should be informed in writing. Once appointed as reports submitted and any other evidence that is representative, you become the primary point of to be presented. Having identified the key issues contact for service of documents, but you must on which the responsible authority will seek to keep the authority informed of progress. Parties rely, identify the crucial pieces of evidence that have a duty to cooperate to avoid unnecessary establish those points, as this is what you will need procedural applications or delays. This may to emphasise during the hearing. You may need include prehearing discussions (for example, to to request additional reports or updates to ensure agree on disclosure or non-disclosure of specific that the evidence is available to support your legal information to the patient) or the attendance of points. witnesses; the representative will need to take the A representative should not, of course, ‘coach’ initiative in arranging these. In particular, if an witnesses to give particular evidence. Be aware of expert report has been commissioned on behalf a possible conflict of interest here if you are seen of the patient, consider whether you wish the to produce a report that is tailored too much to author to attend: tribunals are unlikely to agree the representative role. As a crucial witness, the to an adjournment for this if the issue could and responsible clinician still has a duty to provide should have been resolved by the representatives balanced and honest clinical evidence, even in advance. where that is unhelpful to you as representative. Conversely, as a representative you may have to Understanding the legal issues select and interpret evidence, including your own, As the responsible clinician, you will need to in a way that best supports your case. spend time understanding the legal issues that Before the hearing itself, you should be clear arise and applying them to the clinical situation. what documents have been disclosed within the Case law regarding MHTs has changed rapidly proceedings, what evidence will be presented and has to be applied to the current case – a digest and which witnesses are attending. Consider also by Gledhill (2009) of ‘essential cases’ runs to 20 whether other parties such as the Secretary of sections, 127 pages and 136 cases. A legal decision State (in restricted cases) or victims (in Mental can be thought of as arising from the interaction Health Act 1983, Part III cases) will be attending of three domains: the facts of the case; the legal or represented. Make sure that all of the witnesses issues that arise from the facts; and the legal rules you need to call are available and aware of their that apply to those issues (Holland 2003). You involvement. will need to be able to analyse these elements of decided cases to apply them to your own case or to Checking your argument distinguish them from it. Your role is to represent the responsible authority, not to present your own opinions, so confirm at Constructing your argument this stage that the responsible authority is happy Once you understand the relevant legal rules and with your intended line of argument. In the rare how they support the responsible authority’s case cases in which the authority is critical of your for detention (or how they can most favourably be clinical management, this is the time for you both interpreted and presented as supporting it), you to consider independent representation. should construct the outline of the legal argument that you will present to the tribunal, applying Preserving the doctor–patient relationship the rules to the facts of the case. You must also We strongly recommend explaining the situation consider the case from the patient’s point of view to the patient, particularly why you will be and anticipate the arguments that will be made on questioning and criticising the evidence they give

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to the tribunal and that is given on their behalf. you have the right to be consulted on an equal Done well, this may minimise any damage to basis. The usual procedure is for the responsible the ongoing therapeutic relationship. Purely as a clinician’s evidence to be taken first; this may representative, it would be quite improper for you be helpful in separating your role as responsible to speak to another party in this way, so make clinician from your role as representative during sure that everything you say is defensible as part the rest of the hearing. It could be confusing for all of your doctor–patient relationship and cannot be concerned if you are alternating between the two seen as exerting unfair influence on the patient. roles as the tribunal progresses. This applies to all clinical contact with the patient and indeed with potential witnesses from the time Making an opening or closing statement you are appointed as a representative. You should clarify at the outset whether or not you wish to make an opening or closing submission Presenting the responsible authority’s case on behalf of the responsible authority. Again, you There are few hard-and-fast rules about hearing have a right to equal treatment with the patient’s management and tribunals have wide discretion to representative, but some tribunals may need to be set their own procedures, subject to an overriding reminded of this. Think carefully before deciding requirement to deal with cases fairly and justly not to make a statement. If you do not wish to (rule 2 of the MHT Rules). The relative informality make formal submissions, you should consider of the hearing means that you can ask for issues to making it clear that you are actively deciding be raised or to be permitted to make comments at this, rather than being overlooked. An opening various points. Tribunal judges want to be seen to submission is an opportunity briefly to identify the be fair and open in the way they conduct hearings, issues on which you wish the MHT to focus and rather than enforcing strict procedural rules and perhaps to consider conceding points that will not they are likely to respond better to a constructive, form part of your argument. helpful intervention than to pedantic appeals to procedure. You should remember that all parties Giving and hearing evidence have a right to be consulted about procedures, so The responsible clinician is likely to have a con- if issues do come up, request an opportunity to siderable amount of credibility with the tribunal address them. and should be the most familiar with the details of the case. Try to build on these strengths, rather Playing an active role than getting involved in a complicated legal argu- If your preparation has been thorough, the hearing ment that you are unlikely to win; do not try to itself should not be too daunting. At the outset ‘out-lawyer the lawyers’. If you feel that you are you should clarify that you will be representing getting out of your depth, it is nearly always better the responsible authority – under the new MHT to admit this and most tribunal judges will be only Rules written notification of your appointment will too happy to give some guidance. already have been given, but it does no harm to Giving your own evidence will probably come as remind the tribunal and to establish yourself as a relief – the part of the proceedings with which an active participant in the hearing from the start. you feel most comfortable and in control. With Tribunals may not be accustomed to responsible other professional witnesses, it is usual to allow clinicians playing an active representative role in them to answer questions from the tribunal, but the hearing, so at times you may need to be active you should also request an opportunity to ask in asserting your rights to be heard. There may be questions yourself (usually this would be done preliminary issues to address regarding disclosure before the tribunal’s questions) to bring out the or non-disclosure of documents, the attendance key points of their evidence. of observers or others not directly involved as If the patient has called independent professional witnesses and the order in which evidence will be witnesses then the patient’s representative will taken. In addition, a patient may request a public usually go through their reports with them and hearing, although this is rare. The responsible the tribunal will question them, after which you authority should have a view on all of these issues should expect to do the same. If the tribunal and you are entitled to express that view, with members have raised the issues you wanted, it may equal status to the patient’s representative. be best to leave things at that. Where the witnesses’ evidence supports your case, or can be interpreted Deciding the structure of the tribunal in different ways, you should ask questions that Tribunals often offer the patient’s representative bring this out. If the opinion is flawed or one-sided, a choice of the order in which evidence is heard; you should aim to demonstrate this, clarifying the

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basis of the opinion and any limitations. You may After the hearing want to emphasise the limited contact that the Documenting the tribunal witnesses have had with the patient or their lack of ongoing clinical responsibility, but most tribunals The responsibilities of the representative do not will already appreciate this and labouring the finish at the end of the hearing. As well as letting point may be counterproductive. the responsible authority know the outcome, you should ensure that you have kept adequate Questioning witnesses records of the hearing and of your input. If the Cross-examination is a complex skill and its decision is later challenged or questioned, you discussion is beyond the scope of this article. will need detailed contemporary records of However, one thing to bear in mind is that a what submissions you made, how the tribunal lawyer rarely asks a question without knowing the responded, what evidence was given, what points answer. In clinical practice, questions are asked you made and so on. As with medical negligence in a genuine attempt to learn new information; cases, if there is no record of what was (or was not) in legal practice, questions are asked to lead done, you will have great difficulty in persuading the witness into making certain statements or anyone that you acted properly. The records admissions. The questioner generally knows what should be separate from the clinical records but answer they expect to hear and how that fits into the responsible authority will need to decide the case that they are trying to establish. Keeping whether they are held as part of the overall health control of the information presented is key. records or in some separate format, as they would be if the responsible authority were to engage a Questioning the patient legally qualified representative. The records relate to your duties as the responsible authority’s The patient will have a chance to give evidence, representative, rather than as the patient’s doctor, either by addressing the tribunal or, more likely, by so it may be inappropriate for the patient to have responding to questions from their representative. access to them – after all, the clinical team would Tribunals are usually fairly indulgent towards the not expect access to the records of the patient’s patient, tolerating interruptions, irrelevant issues solicitor. and disorganised evidence. This is generally a good thing, although you may want to object if Considering an appeal this is taken too far. You should expect to question the patient and use the opportunity to clarify/ Increasingly, tribunal decisions have been subject correct any factual inaccuracies and to challenge to judicial review and the new MHT Rules have any unrealistic commitments, for example about made appeals more common. If the decision has future adherence to treatment. It is acceptable, and gone against you, consider whether or not you will often essential, to ask about parts of the history advise the responsible authority to appeal against that the patient has left out of their account and to the decision to the Upper-tier Tribunal and on ask questions that put that account into context. what grounds: detailed records of the proceedings and any aspects that you objected to at the time Making a final submission will be crucial. You may also want to consider Finally, decide whether or not you will make a final whether an application should be made to prevent submission. This has not been common practice the patient being discharged in the interim. If the and some tribunals may query this, but there does detention has been upheld, you should consider not seem to be any reason why the responsible whether or not the patient might have grounds for authority and the patient should be treated appeal – the responsible authority will be grateful differently. If you do make a submission, focus on for any advance warning. In either case, qualified the specific legal issues that support continuing legal advice is essential. detention and keep it as concise as possible. Do not repeat all of the evidence that has been given Negotiating conflicts of interest (although you may emphasise one or two key Before agreeing to act as representative, consider points) and do not use this as an opportunity to seriously whether you have the required time, indulge your Perry Mason fantasies. resources and training. During the hearing and in The representative must never leave the hearing the days and weeks leading up to it, you must also before the end. You have serious responsibilities to continue to function as the patient’s responsible discharge all the way through the hearing and if clinician and do both of these very different tasks you are not able and willing to do so, you should adequately. Can you do this without compromising not act as the representative in the first place. your ability to fulfil either role?

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Consider your potential liabilities and BOX 4 Competencies of a representative indemnity for any failings. If it is seen as part

of your employment, then your employer should • Knowledge of relevant mental health legislation provide indemnity. But how will this work if • Knowledge of relevant human rights legislation your employer claims that you have represented them negligently? At the very least, you should • Knowledge of relevant case law discuss this matter in advance with your medical • Ability to analyse and apply legal rules

defence organisation, since it is unlikely to have • Ability to present legal arguments the expertise to advise on such an unusual area of • Understanding of tribunal procedures, the MHT Rules practice without notice. and relevant practice directions Throughout the process, you should be as clear • Ability to negotiate conflicts of interest as possible whether you are acting as the clinician or the representative at any particular time and make sure that your actions are appropriate to your current role. As the responsible authority’s appointed as representatives are competent to representative, it is not appropriate for you to meet discharge the responsibilities and have mecha with patients and discuss their detention with nisms in place to audit their performance. Some them, but as the responsible clinician you must competencies for acting as a representative are do so regularly. Clear and explicit note-keeping listed in Box 4. and discussing these issues with your patient may It is unlikely that all of these competencies help; other members of the clinical team may also will have been acquired, even by experienced need to be informed of the difference between consultant psychiatrists, without some additional the roles, so that you are not seen as unhelpful training. There is also a need for ongoing training, or obstructive when acting in one capacity or the particularly in relation to developing case law and other. Be as clear as possible that as a clinician evolving tribunal procedures. We are not aware you have a primary duty to the patient but that of any formal training specifically aimed at the as a representative you have a duty to present the competencies needed by a representative, but there responsible authority’s case and to challenge that are various training opportunities in different of the patient. aspects of mental health law that might meet some When preparing a report and when giving or all of these requirements. evidence, be explicit about the difference between It is not uncommon for mental health lawyers your own clinical opinion/evidence and the to practise part-time as patient representatives responsible authority’s legal case for detention, as and part-time as legal members of MHTs. In an presented by you as their representative. analogous way, it may be appropriate for consultant Being open and explicit about potential conflicts psychiatrists who are medical members of the of interest is likely to defuse many potential tribunal to take the lead in providing representation problems. If you find yourself in difficulty, for for responsible authorities. However, although example in not being able to cross-examine training provided for tribunal members addresses vigorously a vulnerable patient because of your some of the suggested competencies, it would fall clinical responsibilities, alert the tribunal as soon short in relation to others. as possible. In an extreme case, you might want Given the potentially isolated role of the to request an adjournment so that an alternative representative, we would suggest that consultants representative could be appointed, although taking on these responsibilities should arrange the tribunal is likely to be reluctant to do this. some form of peer group support or supervision It would be better to anticipate such a difficulty that would enable difficulties to be discussed, before agreeing to act as representative. good practice to be disseminated and standards of practice to be monitored. Training All doctors have a duty to practise to a reason Conclusions able level of skill and competence. By taking on Representing the responsible authority at a tribunal the role of a representative, you are putting your is not simply an extension of the responsible self forward as someone able to fulfil that role clinician’s role: it is a specialised and complex adequately. This includes satisfying yourself that task with its own skills and competencies. Before you have sufficient initial training and appropriate taking on such a role, responsible clinicians need MCQ answers ongoing development and supervision. Responsible to be confident that they have the competencies 1 b 2 c 3 d 4 a 5 d authorities also need to be assured that consultants and resources to do so, have access to adequate

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training and supervision and can negotiate the Humphreys M (1998) Consultant psychiatrists’ knowledge of mental various conflicts of interest without detriment to health legislation in Scotland. Medicine, Science and the Law 38: 237–40. any of their responsibilities. Law Society (2011) Representation before Mental Health Tribunals. The Law Society (http://www.lawsociety.org.uk/productsandservices/ References practicenotes/mentalhealthtribunal/3386.article). Bhatti V, Kenney-Herbert J, Cope R, et al (1999) Knowledge of current Lodge GJ (2005) Making your case to the mental health review tribunal mental health legislation among medical practitioners approved under in England and Wales. Psychiatric Bulletin 29: 149–51. section 12(2) of the Mental Health Act 1983 in the West Midlands. Health Trends 30: 106–8. Napley D (1991) The Technique of Persuasion. Sweet & Maxwell. Bindman J, Maingay S, Szmukler G (2003) The Human Rights Act and Nimmagadda S, Jones CN (2008) Consultant psychiatrists’ knowledge of mental health legislation. British Journal of Psychiatry 182: 91–4. their role as representatives of the responsible authority at mental health review tribunals. Psychiatric Bulletin 32: 366–9. Du Cann R (1964) The Art of the Advocate. Penguin. Passmore K, Leung WC (2003) Psychiatrists’ knowledge of the Human Eldergill A (1997) Law Relating to Mental Health Tribunals. Sweet & Rights Act and its relevance to mental health practice: a questionnaire Maxwell. survey. Medicine, Science and the Law 43: 136–40. Gledhill K (2009) Mental Health Tribunals: Essential Cases. Southside Peay J, Roberts C, Eastman N (2001) Legal knowledge of mental health Legal Publishing. professionals: report of a national survey. Journal of Mental Health Law Gostin LO, Fennell P (1992) Mental Health: Tribunal Procedure. Sweet June: 44–55. & Maxwell. Prins H (1997) Personal liberties versus public safety: some issues for Harrison J (1996) Training in the Mental Health Act: see one, do one, Mental Health Review Tribunals Medicine. Science and the Law 37: 2–3. teach one? Psychiatric Bulletin 20: 160–1. Sarkar SP, Adshead G (2005) Black robes and white coats: who will Holland JA, Webb JS (2003) Learning Legal Rules. Oxford University win the new mental health tribunals? British Journal of Psychiatry 186: Press. 96–8.

MCQs 2 People representing the responsible 4 The overriding objective of an MHT hearing Select the single best option for each question stem authority at MHTs: is: a must be legally qualified a to deal with cases fairly and justly 1 When attending a mental health tribunal b receive training from the tribunals service b to promote the best interests of the patient (MHT), the responsible clinician: c need a detailed knowledge of recently decided c to facilitate appropriate treatment a invariably represents the responsible authority cases d to authorise the lawful detention of persons of b can only represent the responsible authority if d must be an employee of the authority unsound mind appointed in writing e must not be an employee of the authority. e to enforce an individual’s human rights. c should decide at the hearing whether or not to represent the responsible authority 5 The inquisitorial nature of tribunal d appears only as a witness and not as a 3 The conduct of MHT hearings is not hearings means that: representative influenced by: a representatives cannot cross-examine witnesses e can act as a representative only with the a the Mental Health Act 1983 b neither party has to discharge a burden of proof permission of the tribunal. b the Mental Health Act 1983 Code of Practice c they are not considered to be court proceedings c the 2008 MHT Rules d the tribunal can consider issues not raised by d the Civil Procedure Rules 1998 the representatives e the Human Rights Act 1998. e tribunal hearings always take place in private.

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