Transcript Advocacy Before the Mental Health Tribunal

Advocacy Before the
Mental Health
Tribunal
Tam Gill
2012
Case Preparation

‘To Kill a Mockingbird’ by Harper Lee: The
advice of Atticus
Never, never, never, on cross-examination
ask a witness a question you don't already
know the answer to, was a tenet I
absorbed with my baby-food. Do it and
you'll often get an answer you don't want,
an answer that might wreck your case."


The only way you will be in the privileged
position of knowing the answer to every question
you will ask is by way of careful, thorough and
diligent preparation.
The Tribunal is, in the main, going to concern
itself with whether or not the statutory criteria are
met. You must know these. They are set out in
section 72 of the Mental Health Act and can be
summarised as:

Does the patient suffer from a mental
disorder of a nature or of a degree
warranting his detention in hospital for
treatment, that treatment being
necessary for his own health, his own
safety or for the protection of other
people.


It is also important, as well as knowing the
statute, to be aware of the case law
surrounding the criteria. For example, on
the issue of ‘detention being necessary’,
the case of Reid v Secretary of State for
Scotland [1998] UKHL 43 states that the
standard is ‘necessity, not desirability’.
The MHT is inquisitorial, so you need to
deal with the evidence accordingly




keep the statutory criteria in your mind at all
times.
where is the supporting evidence?
where do the weaknesses in your case fall?
The onus is on the Tribunal not to accept
historical ‘hearsay’ evidence; or, at least, to give
little weight to it – see: R (DJ) v MHRT; R (AN) v
MHRT (2005) EWHC 587 (Admin)
MENTAL DISORDER
P’s insight into diagnosis
 Need for medication / compliance?
 Compliance with CMHT meetings
 Exacerbating factors - Drugs, alcohol,
stressors


NATURE
 How well does P stay between
admissions?
Probability of relapse / speed of relapse?
 Compliance with CMHT?

DEGREE
Why has degree changed? – drugs,
alcohol, stress
OWN HEALTH
 Effect of non-compliance with meds on
health?
 Any physical illnesses made worse by
deterioration in mental health?

OWN SAFETY
Risks to self – suicide, Deliberate self
harm, vulnerable / at risk for others?

PROTECTION OF OTHERS
 Child protection issues?
Any outstanding criminal matters?

Not an exhaustive list of questions, simply
pointers as to issues to bear in mind
Initial Instructions




The initial instructions are essential.
have in mind the statutory criteria.
Always look at section papers during your
preparation
You do not need to have the Statutory
reports in order to begin to take P’s
instructions in relation to his Tribunal
hearing.

does he feel he has a mental disorder?
how would he describe it
 how does it affect him
 how does he keep himself well
 what makes him feel better / worse;



does he take medication & what are his
views on taking medication?
Does it help him or not? If he is
suffering side-effects, has he been on
another medication that hasn’t given his
side-effects (i.e. would he be more
compliant with a different medication?)

The answers to these questions will form
the basis certainly of P’s evidence in the
Tribunal hearing and will also go a long
way towards assisting you in preparing
your case before the Tribunal. For
example:





Legal rep: ‘Doctor, have you discussed alternatives to
Olanzapine with P?
RC: ‘P has said he won’t take Olanzapine medication, so
I plan to keep him here until he gains enough insight to
understand the need for medication’
RC: Olanzapine is the first line of treatment for
schizophrenia and is what P has been prescribed in the
past.
LR: What reasons has P given for not wanting to take
Olanzapine?
RC: He is simply refusing to take it, he is clearly
insightless.
P’s Evidence



P: Olanzapine makes me fat, I’m only 30 for
goodness sake. I’d rather take something like
Risperidone. I’ve done some reading and it says
it doesn’t give you weight gain and it is an antipsychotic drug, so it’ll help with my voices.
LR: So, if the RC were to prescribe another antipsychotic, you would be willing to try it?
P: Yes, I just don’t want to end up weighing 20
stone and not able to play football with my kid.





pre-empt lines of questioning
peruse the in-patient medical records
is there is a note made of P’s requests –
does he ask for different medication?
look at his community medical records and
elicit the points that will support your case
or that are negative points you will need to
address
Preparation is never wasted!!
Nature




what type of an illness is it?
How does it change?
Is it chronic, acute, relapsing / remitting,
unchanging, made worse by drugs?
How quickly would he deteriorate if not on
medication?



R v Mental Health Review Tribunal for the South
Thames Region ex parte Smith [1998] EWHC
832 (Admin) it was held by Popplewell J that:
The word ‘nature’ refers to the particular mental
disorder from which the patient suffers, its
chronicity, its prognosis and the patient’s
previous response to receiving treatment for the
disorder
The word degree refers to the current
manifestation of the patient’s disorder (see
below)
CM v Derbyshire NHS Foundation Trust [2011] UKUT
129 (ACC) [12]:

If the nature of a patient’s illness is such that it
will relapse in the absence of medication, then
whether the nature is such as to make it
appropriate for him to be liable to be detained in
hospital for medical treatment depends on an
assessment of the probability that he will relapse
in the near future if he were free in the
community and on whether the evidence is that
without being detained in hospital he will not
take the medication

re-iteration of the position in R v London
and South West Region Mental Health
Review Tribunal ex parte Moyle [1999]
MHLR 195.
History of Illness





Look at the history of the illness.
How long does P manage between relapses?
What happens when he does relapse – is it quick, or a
slow steady decline?
Can it be picked up by the care team when they see him
in the community?
Does he need more frequent visits in the community? (is
there an Assertive Outreach / Home Treatment Team
that could support P through a crisis period and avoid
admission to hospital?).
Degree





Put simply, ‘how bad is it?’.
What are the symptoms
how are the symptoms controlled.
If there are delusional beliefs, who is at risk from them?
i.e. is it a delusion incorporating others [my neighbour
keeps breaking into my flat and moving things around
and I am going to get him for it]
Or is it self-contained [I must change my locks every 10
days as I am sure someone has a key to my door].



The evidence will be in the medical
records! (both in-patient and out-patient).
Speak to the nursing staff, ask them ‘how
does P present from day to day?
What symptoms do you see from day to
day? Make a careful note of what they say
(and what their name is) - this is evidence!





You may also want to speak to family members,
if P gives his permission for this.
Particularly, speak to the NR / person who is
living with P.
What have they seen?
What is their understanding of the situation?
Consider: does your client want this person in
the Tribunal room giving evidence on his behalf?
Risks

It is important to separate out risks that arise as
a result of the mental disorder from ‘criminality’
that should properly be dealt with by way of the
criminal justice system.

Recall that R (on the application of LI) v Mental
Health review Tribunal [2004] EWHC 51
(Admin) notes that the fact that a patient could
pose a risk to the public for reasons
unconnected with his mental illness is not
relevant to the Tribunal’s Decision.





Look at the Risk assessments on the medical file. Compare and contrast
with previous risk assessments.
What has changed, and why?
Are the risks accurate (eg: if there is a risk of fire-setting, explore whether
this is based in fact or upon a throw-away comment made during a
psychotic episode). If there is a risk of assault, determine under what
circumstances the assaults have taken place – driven by psychosis, or
following provocation on the ward by another acutely unwell patient
This is not to minimise any form of assault; more to understand the nature
of the assault and the factors that led to it. These issues all go directly to the
level of risk posed by P in real terms under ‘real conditions’.
Don’t forget that a locked PICU ward is one of the most highly-charged
environments within the psychiatric care system and is likely to be the most
volatile.
Own Health



What is P likely to do to himself if he were
not detained?
What are the risks?
Would he stop taking his medication and
deteriorate further / not get better? Selfneglect?
Own Safety



Risk of suicide, risk of self harm, risk of not
taking medications and deteriorating.
Self neglect
vulnerability (eg: to exploitation, be it
sexual or financial)
Protection of Others

Assaults, exploitation of others, stalking,
threats to harm others previously made.

All the evidence will come from the
medical records and from your client by
way of P’s instructions on the Statutory
reports and the information in the medical
records and his own account (and the
family, if permitted to speak with them).





You, as P’s legal representative, will be the person who knows
the case best
You will have read all the information that the Responsible
Authority has
You have the advantage of having taken detailed instructions
from your client on the reports, medical records (of course
mindful of third party disclosures!)
Consider the section papers and carefully note the justification
for admitting P – what is alleged to have been going on
immediately prior to his admission? Did the NR consent to the
admission?
You know the law.

The RA will only have their in-patient
information and perhaps notes from a few
chats with P during Ward Round.

The Tribunal will only have the statutory
reports, a brief overview of the patient’s most
recent medical records and whatever
information the Medical Member has elicited
during his brief meeting with P before them by
way of background information prior to the
hearing commencing.






You should be going in to the Tribunal room with a relatively
clear view of how you intend to elicit the evidence.
Do not go in with a set list of questions (‘a script’) for each
witness and refuse to waver from your Game Plan
If the Tribunal is asking the questions you want answered, then
do not repeat them!
This will usually serve to demonstrate that you have not been
listening to the evidence and will surely irk the Tribunal
Be ready to change your approach – good advocacy is not just
about what you do say, but at times, about what you do not say
(‘the question too far’).
Do not shy away form the negative points in your case –
address them and put them into context:
Sample Submission

“In terms of risk to others, P has recently
assaulted another patient on the ward, for
which, in his evidence, P has expressed his
remorse. It is important however to remember
that the assault took place in the context of the
victim having been actively seeking to provoke
P relentlessly for some 3 days prior to the
incident, which culminated in the victim tearing
up a photo of P’s son, provoking P to punch
him twice in the back. This account is in fact
corroborated by the Incident Report Form held
on the medical file.”

You will not know what the Incident report
form says unless you look at it during your
preparation of the case!




Try to speak with the RC, CPN, Social Worker (or the
people who will be attending the hearing to give the
evidence) to discuss the case.
Attend CPA meetings, and make sure you write to the
care team and ask if they will be convening a CPA /
s.117 meeting prior to the Tribunal date.
More often than not, professionals will appreciate the
Legal Representative taking the time to talk about the
case.
There is no place for ‘advocacy by ambush’. Talk through
the case, compare views. Discuss concerns.





Duty of confidentiality between you and
your client. You must use your
judgement.
Your Principal Solicitor
Law Society guidance / Helpline
SRA
MHLA

If the client has, as in the example above,
said he will take Risperidone, and he is happy
for you to speak to his RC about this, there is
nothing to preclude you from having a
discussions with the RC and saying,’ my
client instructs me that he would be willing to
try Risperidone as he’s quite concerned, with
some justification, about the weight gain
associated with Olanzapine. Can you please
discuss this with P in your next ward round?’

So outside the Tribunal room door:





you have a clear idea of the written evidence in this
case
your client’s instructions
the care team’s views
you will have an idea of what your Submissions will
be
you will have reviewed the law to ensure it is all fresh
in your mind.




Do not forget that once you leave the Tribunal
room, you leave behind you a care team and
patient who must continue to work together
It is onerous upon you to not deliberately
damage that relationship between patient and
care team.
Challenge the evidence, advocate on behalf of
the patient, state the law and apply the facts to
it.
Remember that you have a responsibility to be
civil and polite, and to leave a functioning
relationship behind you.



Tam Gill
Principal Solicitor - Gledhill Solicitors
19th February 2012