The patient approach

Its pioneering role is attracting international interest, yet articles in the Journal reveal a degree of suspicion of its organisation and methods among the profession in Scotland. Operational for only a matter of months, its President maintains that it is overcoming a massive logistical challenge in arranging hundreds of hearings to deadlines measured in days. A deliberate step away from the court setting, it yet requires a clearly structured approach and an input from solicitors which may not be fully understood.

Such is the Mental Health Tribunal for Scotland (MHTS), which since last October has taken over the functions of the sheriff in applications under the Mental Health Act. Already the tribunal has processed 2,505 applications, some 1,715 cases have been heard and its President, Eileen Davie, is confident that it is finding its feet. “I’m absolutely astounded at how quickly things are bedding in”, she maintains. “So far, we haven’t dropped a major ball.”

Progressive within the rules

Perhaps, as someone commented to her, the job of President was made for Mrs Davie, a senior psychiatric social worker before she took up a career at the bar. If so, someone was out to test her mettle. Appointed in February last year to a body then due to begin hearing cases in April, she was relieved to find the go-live date being put back by six months.

“It was unusual in that we had a judicial body being set up from scratch. There was a huge administrative element that had to be developed. And no lawyer had been involved in the implementation until I arrived! I saw so many things that I was concerned had to be done before we could possibly begin.”

You might say that Mrs Davie’s story shows that goodwill alone is not enough to make an idea work, however well intentioned. The legislation – the Mental Health (Care and Treatment) (Scotland) Act 2003 – derives from the report New Directions, known as the Millan Report after its author, the former Secretary of State for Scotland. “The report was very popular and I personally think the Act was the most progressive piece of legislation I have seen in my adult life,” the President says. “However, a lot of people had a misconception regarding the function of the tribunals. We had to educate people that the hearing is not a case conference or an informal discussion round a table. The tribunal has a very definite statutory role to play, and that has to be adhered to.”

It might come as a surprise that a tribunal system to deal with applications concerning mental health patients is described as unique. Eileen Davie compares the Act to the Children (Scotland) Act 1995 and its focus for the first time on children’s rights, with parental rights being seen only in terms of their responsibilities. “That is what’s happened to the patient in the Mental Health Act. The patient has become central, their needs have to be addressed before all else in terms of the statute and it’s for the applicant to justify compulsory measures of care, whatever they may be.”

Tested at the outset

Undoubtedly the main challenge to the MHTS since October has been the statutory requirement to hold a hearing on an application for compulsory measures within five working days of the expiry of a short-term detention certificate. Working against an increasing trend of medical personnel to delay the decision whether to apply until almost the end of the 28 days has meant a major logistical headache, though Mrs Davie is hopeful now that doctors are beginning to take on board the desirability of not leaving it to the last minute. With around 300 tribunal members and 103 available locations for hearings, arranging tribunals to comply with the time limit has severely tested the organisation. Nor did a lack of reliable figures at the outset as to how many cases to expect, help matters.

One topic well aired in the pages of the Journal (Turner, November 2005, 24; reply by Ross, March 2006, 20) has been the composition of individual tribunals. Chaired by a legal member, each also comprises a medical and a “general” member – in practice usually someone with experience of patient care. Whereas, Mrs Davie explains, the medical member is “putting on a judicial hat and saying to the doctor in terms of the statute, how do you justify your conclusions in medical terms”, the general member’s role is “to look at the issues surrounding the patient and the patient’s needs in a social and a caring context and how that meets the conditions in the statute”.

Essentially the concern was that where both members were medical professionals, the more junior-ranking general member would defer to the views of the medical member rather than bring a proper independent scrutiny to bear. While accepting that the perception as well as the reality of bias is important, Mrs Davie is anxious to make clear that the concerns have not been borne out in practice. “If nothing else the article has raised awareness of the issue and encouraged feedback which has not reflected the concerns expressed by the author.”

A question of independence

A separate issue of independence arises in relation to the Executive. The MHTS’s website describes it as an independent tribunal on the one hand, but on the other as “sponsored by the Scottish Executive Health Department”.

“I think there’s a contradiction there but in reality it’s a very complicated issue. We’re a judicial body and clearly you can’t have the Executive controlling a judicial body, so the way that is being worked is that the administration is an independent agency but funded by the Executive and answerable to me, and I delegate to the administration some of my functions as the President, but I don’t abdicate and I’m still responsible for them.”

What about the subtle pressures where decisions have cost implications? “Somebody has to pay for all of this, but once the budget is set, it’s very much up to the Tribunal how that money is spent.” Mrs Davie is amused at the description of herself and Chief Executive Patricia Lewis as “two housewives running a budget”. “It’s the best thing that ever happened. I think that we are very good with money but not at all profligate, and I personally take very seriously behaving responsibly and ensuring that we are cost effective.”

She instances allowing proper time for each hearing. “Where at all possible, I for one am very anti having two hearings in the one day, certainly in the early days. I have not yet heard a single member say that the hearing went according to plan. It’s never that simple. I don’t mean problems – it’s just that interesting things happen, things that you didn’t expect. It’s actually very interesting work and that’s one of the things the members have been so delighted about, that they go along and find it’s intellectually stimulating and interesting.” She also insists on each member remaining behind after the hearing and verbal decision to contribute to the full determination. And an ongoing training programme is currently b eing developed in an attempt to achieve consistency in decision-making.

Misleading labels

Has the removal of the hearings from the court setting really changed the adversarial nature of the proceedings? Mrs Davie would like to leave such terminology behind. “I wish people would forget the word ‘adversarial’, because it has all sorts of connotations which are really misconceptions. People see it as two lawyers in the red and blue corners coming out slogging. That’s a vision of the criminal court. The adversarial system simply means there are two sides to a story and you listen to both sides. People have some notion that the tribunal has an inquisitorial role. The word ‘inquisitorial’ is never found in the Act…. Fundamentally we’re still in a system which hears both sides and to that extent we’re still adversarial, but it’s delivered in a much more user friendly way and we have wider powers to ask questions and make enquiries.”

And it is here that she expresses some disappointment at how solicitors are responding to the spirit of the Act. “I take the view that even when a patient is not opposing an application, they have such a wide raft of rights that I would like to see solicitors standing there saying, ‘Hang on a minute, we’re not opposing, but I’m just checking to make sure the tribunal does its job properly, I’m keen to make sure that if there’s any evidence that needs to be challenged it is challenged regardless of whether we agree with the temporary order or not and make sure that all the principles are being applied’… I don’t think it’s occurred to them because it’s not what lawyers normally do. Legally if you’re not opposing you drop out of the picture, but I’m very anxious that solicitors interact with the tribunal.”

On the other question already aired in the Journal, whether tribunals are failing to appoint curators ad litem to patients who lack capacity to instruct a solicitor (Hanlon and McGill, April 2006, 28), Mrs Davie insists that this should only be a last resort. “People don’t understand that to bring in a curator is a very serious matter because you then cut the patient out of the picture. So it contradicts all the principles in the Act. And not to allow a patient who is capable of giving instructions to appoint a lawyer is a very serious breach of that patient’s human rights.”

Ahead internationally

Right at the outset Eileen Davie set the parameters she was determined to work within. “We had to be confident, we had to be competent and we had to be comfortable with what we were doing if we were to have any hope of winning public credibility.” Already the MHTS has attracted interest from Europe, Australia, New Zealand and the USA, especially Eastern Europe “where they have nothing at all, they’re really keen to start and they want to look at what’s happening in a progressive rather than an old fashioned system”.

That sets the tone for her further goals. “Longer term my role and my personal ambition is to raise the profile of mental health generally by means of the Tribunal, to raise the quality of care for patients by intelligent use of the Tribunal, and to raise awareness of Scotland’s progressive, intelligent legislation internationally.”