INSIDE THE MENTAL HEALTH REVIEW TRIBUNAL

A PSYCHIATRIST'S PERSPECTIVE

by

P. Grahame Woolf, FRC Psych

Medical Member of MHRT 1966-98

SUMMARY

Working conditions in the MHRT, its administration and development are discussed by a long serving medical member, who concludes that those who serve this increasingly complex organization do so outside a democratic framework, rendering themselves vulnerable to abuse of power, exemplified by disciplinary measures without access to appeal or natural justice.

KEY WORDS mental health tribunal; cost effectiveness; complaints; suspension.

The UK has prided itself upon being in the forefront of movements to protect the civil liberties of compulsorily detained psychiatric patients. The MHRT can be construed as having developed to help assuage collective feelings of guilt and fear, in a climate of growing emphasis upon civil rights. It provides an important check in the balance between patient and public rights.

The legal framework is described comprehensively by Eldergill (1997). The roles of doctors in relation to the MHRT were reviewed by Langley (1990) and Woolf (1991). During 40 years involvement with the MHRT, variously as RMO, medical member and independent expert, the writer has observed that the complex organisation, which is managed jointly by the Lord Chancellor's Department and the Ministry of Health, has developed towards becoming a more autocratic system.

The costly MHRT exercise is a significant drain upon health and legal aid budgets (Malcolm, 1994). Its main function is to decide between discharging or ratifying compulsory orders. Two studies have concluded that no change in legal status resulted from tribunal hearings in the vast majority of cases, although the opportunity for review by an outside panel may offer peripheral benefits for patients and, incidentally, satisfactions for professional participants. Those positive features are not considered in the present paper, although they have been dealt with elsewhere (Woolf, 1999).

Oyebode & Shah (1996) reported a three-fold increase of applications between 1984 and 1993. In 1993/94, only 6½% of the detained patients they studied were discharged by the tribunal. Taylor et al (1999) found in 1992 that most patients in special hospitals exercised their rights to review, at a cost of £2000 per hearing, resulting in a 7% tribunal discharge rate, not all of the discharged patients actually departing.

During the 60s and 70s tribunal hearings were fewer and shorter, but their outcomes were not greatly different from those of the present day. Decisions were recorded in a simple manner, and rarely challenged. Tribunals were generally disposed to incline towards giving the patient the benefit of substantial doubt in marginal cases, but without losing sight of safety and risk to self and others. In those earlier years, most legal members and regional chairmen were solicitors of wide general experience, and hearings tended to be more informal in style. Upon their retirement, some regional chairmen solicitors were replaced by judges, who brought Crown Court experience to the MHRT.

Section 2 of the Mental Health Act (1983) extended tribunal protection to patients under compulsory in-patient assessment for up to 28 days, and now supervised discharge too carries the right to a tribunal hearing. Free legal aid for all has led to increasingly frequent presence of lawyers attending hospital wards to prepare patients for their hearings, followed by independent professional experts assisting them.

The whole process has gradually become increasingly complex, and correspondingly irksome for all the parties involved. Hearings in straightforward cases, with virtually certain outcomes, are prolonged inordinately to pre-empt possible criticism. Reasons for decisions have to be carefully recorded and amplified with "Reasons for Reasons"! We were enjoined to word these so as to be "Judicial Review-proof".

The tribunal procedures and the conduct of hearings are subject to the Tribunal Rules (1983). The statutory requirement to engage a tribunal panel, seek reports, fit in the medical member's preliminary examination and hold a s2 hearing, all within seven working days, leads to operational strains, the pressure tending towards tension and resentments. Putting the whole procedure in place so rapidly can often seem an inappropriate use of valuable professional time for hospital, social service and tribunal personnel alike. The MHRT civil servants have been reluctant to deliberately flout that scarcely workable requirement and risk a test case.

The MHRT operates through peripatetic teams who undertake lengthy journeys to widely

scattered premises, necessarily during rush hours. The detaining authority's administrative convenience may dictate the timing and location of hearings, sometimes in patently unsatisfactory rooms unprepared for a judicial hearing. After travelling considerable distances members may experience parking difficulties and then find themselves assisting with furniture arrangement! Such minor frustrations may be symptomatic of a system in which all is far from right.

This marginalisation reflects perceptions, voiced occasionally, that inordinately lengthy tribunal hearings can feel an irrelevant intrusion into the workings of hard pressed hospitals, a necessary (some say, unnecessary) evil, doing little to advance the real interests of the applicants and disruptive of normal work. Treating professionals are concerned for the more pressing need to meet the "civil rights" entitlement of their patients to receive proper care and treatment, for which there is a woeful lack of sufficient suitable clinical resources in many parts of the country.

Medical members of the MHRT, all experienced consultant psychiatrists, undertake onerous work bearing heavy responsibility. They have no real voice in the organisation and no representation in consideration of variations of the terms and conditions of service. An unacceptable degree of regional autonomy has sometimes resulted in the arbitrary exercise of overt and covert power over members, in cavalier disregard of their own civil liberties, as against a situation in which patients and health service staff are immune from sanctions. It has become a system within which tribunal doctors can unwittingly find themselves extremely vulnerable.

Although the appointment of the three members to sit on a particular panel is formally vested in the regional chairman, the reality is that the task has always been devolved upon the office staff, very much a law unto themselves. Many members throughout the years have complained to no avail about erratic bookings, as to frequency and seemingly perverse geographically locations, with some members finding themselves booked too often at the same local hospitals, others required to travel excessive distances. Members have often felt themselves forgotten, or dropped, for long periods, then apparently remembered and booked in rapid succession for a few weeks, the bookings offered on a take-it-or-leave-it basis, without choice of location, date or time.

There is intense pressure upon the office clerks to complete bookings and confirm them with all parties as quickly as possible. So, availability at the end of a phone for prompt response becomes a premium consideration. Subsequently members sometimes have their arms twisted to take on additional hearings, without extra remuneration, previous bookings cancelled if they decline. Relatively junior civil service clerks learn how to manipulate members, subtly encouraging co-operation, so that many find themselves adopting a placatory attitude towards the powerful bureaucracy.

Members may have to re-arrange other commitments at very short notice to accommodate tribunal bookings, this often followed by late, sometimes inexplicable, discharge of detention orders, or cancellations for other reasons. There is no contingency provision for cancellation fees, despite repeated but ineffective representations. It has been suggested that research into the workings of the MHRTs would be facilitated if completion of tribunal reports was required, even when patients are discharged and hearings cancelled (Woolf, 1988). Follow up enquiries are limited logistically by lack of MHRT resources to pursue long term objectives.

The patently inequitable pay structure has never been subjected to an overall challenge, although differentials between lay members and professionals have widened over the years, even though each member carries an equal voice and responsibility for tribunal decisions. Consultant psychiatrists, some of them holders of distinction awards, are paid uniformly at around half the sessional scale for lawyer presidents, and around one third that prevailing for senior lawyers and regional chairmen, even though preliminary medical examinations often necessitate working at unsociable hours and weekends to fulfil the commitment.

Current travel rates paid by the MHRT are inordinately low. Some years ago they were reduced from 40p/mile to 30p/m, members in several regions having been persuaded to accept a package deal which followed the discovery of long standing underpayment of correct fees. The lowered rate was actually proposed as a "green" encouragement for members to exchange their petrol-greedy large cars for smaller models!

That bizarre episode reflects control and manipulation exercised over experienced professional members, who have no regular opportunities to meet with their peers to thrash out knotty problems about working conditions. When the BMA recommended withdrawal of services some years ago, the obstacles to peer group meetings precluded any concerted response by medical members. A small group who succeeded in meeting concluded that such a gesture would fail, as medical members would be "shipped in" from more distant regions.

Previous inclusion of notional meal breaks in claims was stopped and members encountered demands for fuller information in respect of travel claims. Detailed times and duration of each step of every assignment, including those of any detours, had to be provided, and ratified for payment by clerks who would never have accompanied members on their journeys. This new ruling, which bore especially hard upon medical members, was a symptom of increasing bureaucracy in the relationship between tribunal members and "the Office". Whilst a laissez-faire response to these over-the-top dictums prevailed elsewhere, in at least one region the rules were enforced by a newly promoted clerk with unremitting zeal.

Filling up claim forms, taking copies in order to check payment and chase non-payments (many members rarely check their claims and rely on trust and hope) had become an onerous parts of the task! Repeated protests about unreasonable bureaucracy proved unavailing. Most tribunal members respond characteristically to pressures of every kind with docile acquiescence and stoicism, accepting new edicts with no more than muted grumbles. They are, above all, loath to "rock the boat".

The need for new medical members to replace those retiring has recently outstripped supply, and recruitment has been limited because of the unsatisfactory remuneration structure and other aspects of the work, which tended to preclude active membership for full time NHS consultants. In consequence, increasing demands were placed upon ageing doctors.

The terms and conditions of service for MHRT doctors and lay members are fixed and varied centrally, without members being privy to discussions. Anomalies between regions have emerged about their interpretation and implementation. Payment has always been sessional rather than based upon items of service (i.e. individual examinations and hearings). Although the task for tribunal doctors has become increasingly demanding over the years, medical members have never been offered an independent negotiating capability, nor any genuine role in decisions taken about their own work.

Medical membership of the MHRT is normally renewed on a three year basis until age 70 (with extensions to 72) subject to secret, confidential recommendation, or veto, by the regional chairman and tribunal clerk. But there is no security whatsoever. The standard letters of appointment and re-appointment sent from the Lord Chancellor's office are chilling in their wording, and have upset many members. Members are advised that their appointments may be terminated at any time without reason stated, and decisions of the Lord Chancellor are not subject to appeal.

Regional chairmen are appointed from amongst the legal members. Their disparate roles embrace complex divided loyalties, which have become increasingly difficult to reconcile. When presiding at tribunal hearings, they accept (gracefully, most often) the principle of democratic equality, whereby from time to time their preferred determination of an application may be over-ruled by their medical and lay member colleagues constituting a majority. But in organisational and disciplinary matters, power and authority over those same members is perceived as being virtually total, their decisions and actions not subject to any recognised form of appeal. Inevitably, individual personal characteristics of power holders come into play occasionally in the exercise of power within any complex organisation (Greenblatt, 1986 and House, 1991)

The roles of the MHRT chairmen, office and hearing clerks, and of "others", have been explicitly extended to include "monitoring the performance" of medical members, this felt to be a sinister development tending to undermine the mutual confidence within the tribunal fraternity of earlier years. Medical and lay members have however not been invited to report reciprocally upon the performance of their legal colleagues, nor that of the office staff. New emphasis upon disciplinary responsibilities and "monitoring" has compromised the former confidence that regional chairmen could be relied upon to support medical members and to represent their interests, there being no other avenues. Tribunal members are now vulnerable to attacks from outside or from within. Lawrence (1995) deals only with monitoring of members by the regional chairmen and begs the question "Who monitors the monitors?" (Quis custodiet ipsus custodiem?)

COMPLAINTS AND DISCIPLINE

Prospective tribunal members, who may be attracted by the opportunity to exercise professional expertise combined with compassion in reviewing the plight of detained psychiatric patients, may find themselves nowadays unexpectedly constrained and denied some basic civil rights.

Tribunals are, of their essence, forums for disputation between patients and detaining authorities, but although a relatively informal style is recommended for hearings, some legal representatives have been more used to an adversarial, confrontational approach than the preferred inquisitional mode (Stern, 1994). Complaints about the conduct of a hearing, and disagreement with decisions, arise inevitably from time to time. Generally these dissatisfactions are resolved informally and easily.

Occasionally members can find themselves very vulnerable. Two illustrative examples may suffice here:-

1. Following a s2 hearing, an approved social worker complained within his department that he had been unduly pressed during questioning by the medical member, who had been exploring the homeless applicant's contention that he had simulated mental illness to obtain housing, and sought also to know what social support might be available if the Tribunal were to discharge the patient. The Regional Chairman soon afterwards suspended the doctor without prior contact. Professionals on both sides of the table had perceived nothing untoward, and testified later that the questioning had been entirely appropriate. No representations had been made during the hearing. Only after more than a year was the medical member's appointment restored fully by the Lord Chancellor. The applicant subsequently died in custody, and the coroner recorded criticism of unsatisfactory communications with the social services department.

2. A consultant psychiatrist was suspended by her NHS Trust following disagreement with a ward manager. Pending resolution of the dispute, she was informally invited to resign her appointment as an MHRT medical member. She declined, asserting that she had done nothing wrong or improper. It was indicated that her MHRT appointment would not be renewed at the due date, and that was what transpired. Until then she was not invited to sit on any MHRT hearings. In due course she was exonerated completely in respect of the hospital problem.

The writer has described his own experience of summary suspension and subsequent dismissal after 30 years service, without his being privy to disclosure of the source of complaint (Howell & Woolf, 1997).

The archaism of the tribunal organisation in its handling of complaints has been recognised for at least five years. Murphy's Law tells us that "anything which can go wrong, will go wrong" ! Medical members of the MHRT need the protection of fair and effective safeguards, with suspension and dismissal reserved for only the most serious misdemeanours.

The extent of those problems is difficult to ascertain because of the natural reticence of affected professionals, and the lack of central records held at the Department of Health or in the Lord Chancellor's office. There are no formal complaints procedures for the Mental Health Review Tribunals nor, so far as it has been possible to ascertain, in respect of those other Tribunals for which the Lord Chancellor is responsible.

The Society of Clinical Psychiatrists has campaigned steadily to draw attention to the personal distress and financial toll exacted by the protracted suspension of numerous innocent NHS hospital doctors, who were not reinstated in their posts, even though guilt was never confirmed. The triviality of their alleged misdoing was often mind boggling.

The GMC found, after investigation of some 2000 complaints which reached it, that only 66 of those cases were considered serious enough for a Hearing, and only 19 doctors (less than 0.01%) had to be ordered to cease practising. Dedicated and conscientious nurses, and administrative staff too, have found themselves equally vulnerable to inappropriate and invariably traumatic suspension, described graphically by Bruggen (1997) in his carefully researched accounts of soured hopes and blighted aspirations within the realities of the NHS Trusts during the 1990s.

Continuing blatant and widespread abuse of power by NHS Trusts, in cavalier disregard of official NHS guidelines, has been publicised in important parliamentary debates (Knight, 1996 and 1999), the latter traversing similar injustices three years on. They highlight how rules and procedures may prove inadequate as safeguards, unless administered in a spirit of fairness, and with complete independence and openness. However, the MHRT lacks even those basic steps towards democratic accountability.

The need for a new procedure to govern the suspending of NHS hospital doctors had been urged by the Society of Clinical Psychiatrists and eventually recognised by the Government. The Society has been calling for a complete overhaul of the existing NHS disciplinary system for nearly a decade, notably in two reports (Jacobs, 1989 & Jacobs & Tomlin, 1999). Many of its recommendations (1988) are equally applicable to the MHRT.

The MHRT has survived until now on a basis of co-operation, trust and common sense. In today's society, organisations are liable to fall into disrepute without proper complaints procedures and sanctions. In these increasingly litigious times, complaining is prevalent and even encouraged. The MHRT should, without further delay, institute formal measures to protect and ensure the "civil liberties" of its own members. It is paradoxical that whereas all tribunals dispense justice with transparency, the MHRT lacks fair and effective safeguards for its own members. When simple mediation fails, due process and rules of evidence should be applied, in the interest of natural justice.

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Correspondence to Dr P Grahame Woolf