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TPC, 'Responses to the consultation on possible changes to the Tribunal Procedure (FTT) (HESC) Rules 2008 regarding pre-hearing examinations and decisions without a hearing in the case of references by the hospital or Department of Health' (23/10/18)

One interesting response, of many, is this from an MHT judge: "If cases are decided on papers alone, I can see little point in having those cases referred to the Tribunal. I have done a number of paper hearings and they are unsatisfactory." The TPC noted the following points and in consequence rejected the proposed rule changes: (1) The PHE provides for greater participation in the process by the patient. (2) The PHE reduces stress and anxiety at the hearing for the patient who will not need to be asked distressing questions. (3) The PHE allows the patient to talk about their situation privately to a person not involved in their detention. (4) The PHE allows for information missing from reports to be picked up. (5) The PHE is a lesser cost to the public purse than independent psychiatric reports. (6) The High Court has confirmed that there is no reason why the MM cannot carry out a PHE, provided the findings are disclosed at the outset of the hearing as they are currently. (7) Having a second medical opinion to assist the panel reduces the possibility of the wrong decision being made, thus reducing the risk to both the patient and the general public. (8) The system in England is not comparable to the Scottish system which operates in a fundamentally different way. (9) In Wales PHEs are carried out in every case and there are no current plans to alter that. (10) The outcome of MHTs cannot be measured by the numbers discharged but by whether the patient and their representative are satisfied that the case has been properly scrutinised with all relevant evidence before it. (11) Those who have their cases referred to the MHT are the most vulnerable members of society, often lacking the mental capacity to make an application to the MHT. (12) Disposals without a hearing would mean that the MHT panel would have evidence from only one party. (13) The MHT panel would not have adequate information to decide whether an oral hearing is appropriate. (14) There are a significant number of examples of MHTs reaching a decision on referred cases based on evidence that came out at the hearing and not contained in the reports.

Extract

The TPC's Reply

69.The TPC has given careful consideration to the responses. We of course afford great respect to the views of the Chamber President, the then Deputy Chamber President and Chief Medical Member. However, given the overwhelming response against any change, supported by cogent reasons and evidence of direct experience, the TPC is not persuaded that it is appropriate to make the proposed changes.

70.It is clear that almost all of those who responded, including some large representative organisations and including those on the “other side of the table”, being NHS Trusts or the Royal College of Psychiatrists, believe that the PHE does add value to the MHT. It provides a second, independent psychiatric opinion. is also clear that the majority of MHT panel members who responded do not support the proposals.

71.The TPC notes in particular the following points which were advanced against the proposals: -

  • The PHE provides for greater participation in the process by the patient.
  • The PHE reduces stress and anxiety at the hearing for the patient who will not need to be asked distressing questions.
  • The PHE allows the patient to talk about their situation privately to a person not involved in their detention.
  • The PHE allows for information missing from reports to be picked up.
  • The PHE is a lesser cost to the public purse than independent psychiatric reports.
  • The High Court has confirmed that there is no reason why the MM cannot carry out a PHE, provided the findings are disclosed at the outset of the hearing as they are currently.
  • Having a second medical opinion to assist the panel reduces the possibility of the wrong decision being made, thus reducing the risk to both the patient and the general public.
  • The system in England is not comparable to the Scottish system which operates in a fundamentally different way.
  • In Wales PHEs are carried out in every case and there are no current plans to alter that.
  • The outcome of MHTs cannot be measured by the numbers discharged but by whether the patient and their representative are satisfied that the case has been properly scrutinised with all relevant evidence before it.
  • Those who have their cases referred to the MHT are the most vulnerable members of society, often lacking the mental capacity to make an application to the MHT.
  • Disposals without a hearing would mean that the MHT panel would have evidence from only one party.
  • The MHT panel would not have adequate information to decide whether an oral hearing is appropriate.
  • There are a significant number of examples of MHTs reaching a decision on referred cases based on evidence that came out at the hearing and not contained in the reports.

Conclusion

72.The TPC has therefore concluded it is not appropriate to amend the Rules. The TPC acknowledges that the timing of the consultation has run in parallel with the ongoing independent review of the MHA chaired by Sir Simon Wessely (the Review). However, given that the Review is undertaking a “root and branch” consideration of the entire mental health and mental capacity system, the TPC does not believe it is necessary to await the Review’s final report. The TPC consultation is about the MHT process rather than the law underpinning it and the TPC has decided against making any changes.

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Type: Report🔍

Title: Responses to the consultation on possible changes to the Tribunal Procedure (FTT) (HESC) Rules 2008 regarding pre-hearing examinations and decisions without a hearing in the case of references by the hospital or Department of Health

Author(s): Tribunal Procedure Committee🔍

Date: 2018/10/23

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