A purely personal viewThe author of this presentation is not a member ofthe Mental Health Commission or Mental HealthTribunal. The presentation is an independent, andpurely personal, interpretation of the relevant legalprovisions. Nothing expressed in it should be takenas having been authorised, approved or endorsed bythe Commission or tribunal, or as representing theirviews.
‘Patients’ An individual KEY CHARACTERISTICS An individual, no more and no less so than any other individual. An individual who suffers, who wills certain ends for themselves and their loved ones and not others, who wishes to develop, and to be happy and fulfilled. A citizen. That is, a person whose needs and interests the Government exists to serve. A brother, sister, mother, father.‘Those we describe as patients are members of the public, sothat the law must seek to ensure that members of the publicare not unnecessarily detained, and also that they areprotected from those who must necessarily be detained.’
Article 3 ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’Consider how this impinges on a tribunal’s power ofdiscretionary discharge and the mandatory dischargecriteria.
Medical treatment As a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading Herczegfalvy v. Austria (1992)
Article 5 No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e) the lawful detention of ... persons of unsound mind
Article 81. Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Statutory principles4.— In making a decision under this Actconcerning the care or treatment of aperson (including a decision to makean admission order in relation to aperson) —(a) the best interests of the person shallbe the principal consideration with dueregard being given to the interests ofother persons who may be at risk ofserious harm if the decision is not made.(b) due regard shall be given to theneed to respect the right of the person todignity, bodily integrity, privacy andautonomy.
Involuntary admission A person may be involuntarily admitted to an approved centre and DEFINITION OF MENTAL detained there ‘on the DISORDER grounds that s/he is suffering from mental disorder.’ CRITERIA FOR SHORT-TERM CRITERIA FOR LONG-TERM CRITERIA FOR GUARDIANSHIP DETENTION TREATMENT S/he may not be involuntarily admitted ‘by reason only of the DEFINITION OF MENTAL DISORDER INCLUDES fact that s/he is THE CONDITIONS FOR suffering from COMPULSION personality disorder; is “Certifiable mental disorder” socially deviant; or is addicted to drugs or intoxicants.’
Exclusions‘Nothing … shall be construed as authorising theinvoluntary admission of a person to an approved centre byreason only of the fact that the person—(a) is suffering from a personality disorder;(b) is socially deviant; or(c) is addicted to drugs or intoxicants.’ Mental Health Act 2001, s.8(2).
MENTAL DISORDER (1) Significant Mental illness Severe dementia Intellectual disabilityA state of mind which A deterioration of the A state of arrested oraffects the person’s person’s brain which incomplete developmentthinking, perceiving, significantly impairs of mindemotion or judgement their intellectual function WHICH INCLUDES AND THEREBY significant impairment ofwhich seriously impairs affecting thought, intelligence and socialmental function comprehension and functioning TO THE EXTENT THAT memory ANDs/he requires care or AND WHICH INCLUDES abnormally aggressive ormedical treatment in severe psychiatric or seriously irresponsibleher/his own interest or behavioural symptoms conduct on the part ofin the interest of others. such as physical the person. aggression.
MENTAL DISORDER (2) Risk ground Therapeutic groundBecause of the illness, disability (i) because of the severity of the illness,or dementia, there is a serious disability or dementia, the judgment oflikelihood of the person the person concerned is so impaired thatconcerned causing immediate and failure to admit the person to an approvedserious harm to himself or herself centre would be likely to lead to a seriousor to other persons. deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and (ii) the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.
Significant intellectual disability case 1 A state of arrested Not a developmental condition. or incomplete (Mind not arrested or development of incompletely developed) mind 2 + Significant Any impairment is not significant, impairment of e.g. IQ > 70. intelligence 3 + Significant Any impairment is not significant. impairment of social If it is, it is associated with functioning personality disorder or some other cause, e.g. upbringing. 4 + Abnormally Aggression is not abnormal, or is aggressive or not the product of an arrested or seriously incompletely developed mind. irresponsible Person’s behaviour is not behaviour ‘seriously’ irresponsible.
Significant intellectual disability case 5a + Serious likelihood of Although harm to the patient or others is immediate and possible, it is not ‘likely’. serious harm 6a + If harm is ‘likely’, it is not ‘seriously likely’. 7a + If some harm is ‘seriously likely’, that harm does not amount to ‘serious harm’. 8a + If ‘serious harm’ is ‘seriously likely’, it is not ‘seriously likely’ to happen ‘immediately’. 9a + If ‘serious and immediate harm’ is ‘seriously likely’, this risk of harm does not arise ‘because of’ the individual’s significant intellectual disability.10a + Statutory principles The best interests of the person must be the principal consideration, and they would be adversely affected by involuntary admission. In the circumstances, involuntary admission would not demonstrate ‘due regard … to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.
Significant intellectual disability case 5b + Likelihood of The person’s judgement is not impaired. material benefit or alleviation 6b + If it is impaired, it is not impaired by reason of her/his disability. 7b + Although not admitting the person could lead to their condition deteriorating, this is not ‘likely’. Furthermore, it is unlikely that any likely deterioration would be ‘serious’. 8b + The in-patient treatment it is proposed to give the patient is not ‘appropriate treatment’. 9b + ‘Appropriate treatment’ could be given as a voluntary patient, or as an out-patient, etc. 10b + Any benefit or alleviation of the patient’s condition arising from forced ‘reception, detention and treatment’ is not likely to be of any ‘material extent’. 11b + Statutory The best interests of the person must be the principles principal consideration, and they would be adversely affected by involuntary admission, etc.
APPLICANT Spouse or relative APPLICATION ‘A REGISTERED MEDICAL ‘Authorised officer’ Member of Garda in prescribed form for recommendation PRACTITIONER’ Any other person that the person be involuntarily admitted to an approved centre. Cannot be a minor, member of the approved centre concerned, or have a financial interest, etc. Must have observed the person within the past 48 MANDATORY EXAMINATION hours. shall be carried out within 24 hours, by ‘a medical practitioner’ who is not a member of staff of the approved centre to which person is to be admitted. RECOMMENDATION that person be admitted to the specified CLINICAL DIRECTOR approved centre. Mandatory if satisfied person is suffering from mental disorder. (In force for 7 days) NO RECOMMENDATION (APP. ‘REFUSED’) CONVEYANCE A copy of the recommendation shall be given to the applicant, who ‘shall arrange’ for the ‘removal of the person’ to the approval centre specified. If the applicant is unable to FURTHER APPLICATIONS arrange this, the clinical director (or a consultant psych acting on her/his behalf) shall, at Applicant must notify doctor of any known the request of the doctor who made the recommendation, arrange for the person’s previous applications that ‘were refused’. Query removal by staff of the approved centre. In certain circumstances, the Garda may be relevance because person must be examined required to assist staff with the removal (serious likelihood of immediate and serious within 24 hours of receipt of application. harm), in which case members of the Garda may enter premises without a warrant and use any necessary detention or restraint. SECOND EXAMINATIONWhere a clinical director receives a recommendation, a consultant psych on the staff of the centre shall, ‘as soon as may be’, examine the person and either:(a) if satisfied that the person is suffering from mental disorder, make ‘an admission order’;(b) if not so satisfied, refuse to make such an order.The psychiatrist may not be a spouse or relative, or the applicant.A consultant psychiatrist, medical practitioner or registered nurse on the staff of the approved centre are entitled to take charge of the person, and to detainher/him for up to 24 hours, for the purpose of carrying out this examination.
ADMISSION ORDER COMMISSION NOTIFIED 21 days (unless extended by tribunal for 14 or Copy of order sent within 24 hours 14+14 days)May be extended by consultant psych. Commission assigns legal representative andresponsible for the patient’s care and treatment. directs a member of the medical panel toDuring the week before the renewal order is examine the patient. S/he has 14 days withinmade, s/he must both examine the patient and which to examine the patient, interview thecertify that the patient continues to suffer from consultant, inspect the patient’s records andmental disorder. prepare a report for the tribunal. FIRST RENEWAL ORDER MENTAL HEALTH TRIBUNAL‘Up to’ 3 months (unless extended by tribunal for Review and decision within 21 days of the14 or 14+14 days). Renewal procedure as before. making of the admission or renewal order. Must affirm order if satisfied that the patient is suffering from mental disorder and that any failure to comply with the statutory admission or renewal procedures SECOND RENEWAL ORDER has not caused injustice or affected the‘Up to’ 6 months (unless extended by tribunal for substance of the order14 or 14+14 days). Renewal procedure as before. Patient has 14 days to appeal. FURTHER RENEWAL ORDERS CIRCUIT COURT ‘Up to’ 12 months (unless extended by tribunal Will revoke order if it is shown to its for 14 or 14+14 days). Renewal procedure as satisfaction that the patient is not suffering before. from mental disorder
JUDICIAL REVIEW [2008 No. 749 IR.]SM v THE MENTAL HEALTH COMMISSIONER, THE MENTAL HEALTH TRIBUNAL, THECLINICAL DIRECTOR OF ST. PATRICKS HOSPITAL, DUBLIN (RESPONDENTS) ANDATTORNEY GENERAL AND HUMAN RIGHTS COMMISSION (NOTICE PARTIES)Mr Justice McMahon31 October 2008FACTSThe patient was 36 years of age and had been admitted to St. Patricks Hospital on23 occasions, 15 of which were involuntary admissions.Following her most recent admission in August 2007, her order was renewed for aperiod of 12 months. Ideally, supported accommodation was the way forward forher care, rather than involuntary admission.SUBMISSIONSThe applicant sought a declaration that the renewal order dated the 21st May 2008was invalid and void by reason of its failure to specify a definite duration.The first and second respondents contended that ‘a period not exceeding twelvemonths’ means ‘a period of twelve months’.
SM, continued …HELD1. The first obligation of the court is to interpret the section and give effect to the plain meaning of the provision when it is clear. The paternalistic, purposive, approach in not intended to rewrite the legislation.2. A renewal order made under subs. (2) and (3) of s. 15 which does not specify a particular period of time, but merely provides that it is an order for a period ‘not exceeding 12 months’, is not an order permitted under the legislation and is void for uncertainty.3. One must not think that the skies would fall as a result of this decision. The court’s decision does not prevent a consultant from making 12-month detention orders where s/he deemed it appropriate. All it meant was that s/he must indicate the specific period in the renewal order.
Mental Health Bill 2008• The 2008 Bill deals with the effect of the SM judgment.• Unexpired renewal orders are valid for at least five working days following the date the 2008 Bill is enacted. During that period a replacement renewal order may be made.• Expired renewal orders are deemed always t o h a ve b e e n va l i d .
Transfers and tribunals21.— (2) (a) Where the clinical director of an approved centre—(i) is of opinion that it would be for the benefit of a patient detained in that centre, or that it is necessary for the purposeof obtaining special treatment for such a patient, to transfer him or her to the Central Mental Hospital, and(ii) proposes to do so,he or she shall notify the Commission in writing of the proposal and the Commission shall refer the proposal to a tribunal.(b) Where a proposal is referred to a tribunal under this section, the tribunal shall review the proposal as soon as may bebut not later than 14 days thereafter and shall either—(i) if it is satisfied that it is in the best interest of the health of the patient concerned, authorise the transfer of thepatient concerned, or(ii) if it is not so satisfied, refuse to authorise it.(c) The provisions of sections 19 and 49 shall apply to the referral of a proposal to a tribunal … with any necessarymodifications.(d) Effect shall not be given to a decision to which paragraph (b) applies before—(i) the expiration of the time for the bringing of an appeal to the Circuit Court, or(ii) if such an appeal is brought, the determination or withdrawal thereof. Mental Health Act 2001, s.21
Discharge of patients28.— (1) Where the consultant psychiatrist responsible for the care and treatment of a patientbecomes of opinion that the patient is no longer suffering from a mental disorder, he or she shallby order in a form specified by the Commission revoke the relevant admission order or renewalorder, as the case may be, and discharge the patient …(5) Where a patient is discharged under this section—(a) if a review under section 18 has then commenced, it shall be discontinued unless the patientrequests by notice in writing addressed to the Commission within 14 days of his or her dischargethat it be completed, or(b) if such a review has not then commenced, it shall not be held unless the patient indicates bynotice in writing addressed to the Commission within 14 days of his or her discharge that he orshe wishes such a review to be held,and, if he or she requests that a review under section 18 be completed or held, as the case maybe, the provisions of sections 17 to 19 shall apply in relation to the review with any necessarymodifications. Mental Health Act 2001, s.28
1945 Act patients xSection Chargeable These orders authorise the patient’s detention171 Patient Reception ‘until his removal or discharge by proper authority Order. or his death.’ Their treatment and detention is nowSection Private Patient to be regarded as authorised by virtue of the 2001178 Reception Order. Act for a period not exceeding 6 months after the commencement of s.72.Section Temporary These orders authorise the patient’s detention184 Chargeable ‘until the expiration of a period of six months from Patient Reception the date on which the order is made …’ Their Order. treatment and detention is now to be regarded asSection Temporary authorised by virtue of the 2001 Act until the185 Private Patient expiration of this six month period. Reception Order.These patients are regarded as having been involuntarily admitted under Part 2 to the institution in whichthey were detained. Their detention must be referred to a tribunal by the Commission before the expirationof the period referred to above, and the tribunal must review the detention as if it had been authorised by arenewal order under section 15(2).
Definition of ‘a patient’‘A person to whoman admission orderrelates is referred toin this Act as “apatient”. Sections 2(1), 14(1)(a).
Definition of consent56.— In this Part consent, in relation to a patient, meansconsent obtained freely without threats or inducements,where—(a) the consultant psychiatrist responsible for the care andtreatment of the patient is satisfied that the patient iscapable of understanding the nature, purpose and likelyeffects of the proposed treatment; and(b) the consultant psychiatrist has given the patientadequate information, in a form and language that thepatient can understand, on the nature, purpose and likelyeffects of the proposed treatment. Mental Health Act 2001, s.56
Psychosurgery Section 58 Psychosurgery shall not be performed on a patient unless— (a) the patient consents in writing to the psychosurgery; a nd (b) it is authorised by a tribunal.The tribunal shall review the proposal and shall either—(a) If it is satisfied that it is in the best interests of the health of the patient concerned, authorise the performance of the psychosurgery, or(b) If it is not so satisfied, refuse to authorise it.
Treatment not requiring consentThe consent of a patient shall be requiredfor treatment except where, in the opinionof the consultant psychiatrist responsiblefor the care and treatment of the patient,the treatment is necessary: to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering,and by reason of his or her mentaldisorder the patient concerned isincapable of giving such consent.Not apply to sections 58–60 (psychosurgery,ECT, medication for more than threemonths). Section 57
§6 — MENTAL HEALTH TRIBUNALSLAW, GUIDELINES, PROTOCOLS
Constitution of tribunalsStatutory functionsAppointed by the Commission ‘to determine such matter or matters as may bereferred to it by the Commission under section 17.’ See s.48(1).MembershipThree members: a practising barrister or solicitor of 7 years standing (Chairperson); aconsultant psychiatrist (including a person who has been employed as such within thepast 7 years, etc); and someone who is not a consultant psychiatrist, practisingbarrister or solicitor, etc, registered medical practitioner, registered nurse, or memberof the Commission. See s.48(3), (5) and (12).Term of appointment, renewal and removalA member of a tribunal shall hold office for such period not exceeding 3 years.Members whose term expires are eligible for re-appointment. See s.48(6) and (11). Atribunal member ‘may at any time be removed … by the Commission if, in theCommission’s opinion, … his or her removal appears to the Commission to benecessary for the effective performance by the tribunal of its functions.’ See s.48(9).Powers of membersAt a sitting of a tribunal, each member of the tribunal shall have a vote and everyquestion shall be determined by a majority of the votes of the members. See s.48(4).
Remit Referrals after the making of an admission or renewal order. Proposals to transfer a patient to the Central Mental Hospital. Proposed psychosurgery.
Obtaining Evidence — DirectionsDirections concerning the attendance of the patientA tribunal may, for the purposes of its functions, direct in writing theresponsible consultant psychiatrist to arrange for the patient to attendbefore it. However, a patient shall not be required to attend if, in theopinion of the tribunal, such attendance might be prejudicial to his or hermental health, well-being or emotional condition.Directions concerning the attendance of witnessesA tribunal may, for the purposes of its functions, direct in writing anyperson whose evidence is required by the tribunal to attend before it.The reasonable expenses of witnesses directed to attend shall be paid bythe Commission.Directions concerning the production of documentsA tribunal may, for the purposes of its functions, direct any personattending before it to produce to the tribunal any document or thing in hisor her possession or power specified in the direction. It may also direct inwriting any person to send to it any document or thing in his or her Section 49(2) & (11)possession.General power to give directionsA tribunal may, for the purposes of its functions, give any other directionsfor the purpose of the proceedings concerned that appear to it to bereasonable and just.
Psychiatric reports The Act requires the Commission to establish a panel of consultant psychiatrists to carry out independent medical examinations under section 17. By section 17, when the Commission receives a copy of an admission or renewal order, it must direct a member of the panel to examine the patient, review their records and to interview their consultant psychiatrist, in order to determine in the interest of the patient whether the patient is suffering from a mental disorder. Within 14 days, the panel member must provide the tribunal with a written report on the results of the examination, interview and review, and copy it to the patient’s legal representative. The tribunal must have regard to this report before determining the review. Mental Health Tribunals, Draft Procedural Guidance & Administrative Protocols, para. 3.11
The Hearing — statutory provisionsDuty to hold sittings when conducting a review49—(1) A tribunal shall hold sittings for the purpose of a review by it …(9) Sittings of a tribunal … shall be held in private.Procedure at sittings49—(6) The procedure of a tribunal in relation to a review by it under this Act shall, subject to theprovisions of this Act, be such as shall be determined by the tribunal and the tribunal shall, withoutprejudice to the generality of the foregoing, make provision for—(a) notifying the consultant psychiatrist responsible … and the patient or his or her legalrepresentative of the date, time and place of the relevant sitting of the tribunal,(b) giving the patient … or his or her legal representative a copy of any report furnished to thetribunal under section 17 and an indication in writing of the nature and source of any informationrelating to the matter which has come to notice in the course of the review,(c) subject to subsection (11), enabling the patient … and his or her legal representative to bepresent at the relevant sitting … and enabling the patient … to present his or her case … in personor through a legal representative,(d) enabling written statements to be admissible as evidence … with the consent of the patient or… representative,(f) the examination by or on behalf of the tribunal and the cross-examination by or on behalf of thepatient … (on oath or otherwise as it may determine) of witnesses before the tribunal called by it,(g) the examination by or on behalf of the patient … and the cross-examination by or on behalf ofthe tribunal … of witnesses before the tribunal called by the patient the subject of the review …
Guidance and protocols Record of the proceedingsThe Chairperson shall be responsible for ensuring that a record of theproceedings, agreed by the members, is made and s/he will be assisted inthis by a Tribunal Clerk. The Commission will provide a format forrecording proceedings. Witness expensesThe reasonable expenses of witnesses directed to attend before a mentalhealth tribunal shall be paid by the Commission. Witnesses may obtain aTribunal Expenses Claim Form from the Tribunal Clerk or from theCommission’s offices.Mental Health Tribunals, Draft Procedural Guidance & Administrative Protocols, paras. 4.3, 4.5,4.6
A ‘best interests approach’‘Section 4(1) of the Mental Health Act … states that in making a decision under thisAct concerning the care or treatment of a person … the best interests of the personshall be the principal consideration … the Mental Health Commission takes the viewthat under no circumstances should mental health tribunals be conducted in anadversarial manner. An inquisitorial approach which seeks to protect each patient’shuman rights and is governed by best interest principles, Section 4(1), is viewed bythe Commission as the most effective manner in which to conduct a mental healthtribunal.’‘To put the patient at ease, it is recommended that where it is required that evidencebe taken directly from the patient this be done as early in the hearing as isreasonably possible. Due consideration should be given by the mental health tribunalto each patient’s mental health, well being or emotional condition when evidence isbeing heard.’ Mental Health Tribunals, Draft Procedural Guidance & Administrative Protocols, paras. 3.5 & 3.8
Powers No powers of discretionary discharge. No powers short of revoking an order, e.g. transfer or leave. No power of discharge on a future date.
Recording the decisionPrescribed FormsThe decision shall be recorded on one of the prescribed forms.Form 8 (Decision of the Mental Health Tribunal)Form 8 is used to record decisions of the tribunal to affirm or revoke anadmission or renewal order.Form 9 (Decision to extend the period of an order)Form 9 is used to record decisions of the tribunal to extend the period ofan admission or renewal order by up to 14 days.Decisions to adjournThe Commission has provided documentation for the tribunal to recorddetails of adjournments or situations where the tribunal must becancelled due to unforeseen circumstances …Where the tribunal decidesto adjourn this must be appropriately recorded and all relevant partiesnotified. The Tribunal Clerk will ensure that the Commission is informedof the adjournment as soon as this decision is made and arrangementswill then be commenced for the reconvened hearing.
Communicating the decisionCommunicating the decision and reasons18.—(5) Notice in writing of a decision under subsection (1) and the reasons … shall b e g i ve n t o — the Commission, the consultant psychiatrist responsible for the care and treatment of the patient concerned, the patient and his or her legal representative, and any other person to whom, in the opinion of the tribunal, such notice should be g i ve n .(6) The notice referred to in subsection (5) shall be given as soon as may be after the decision and within the period specified in subsection (2) or, if it be the case that period is extended by order under subsection (4), within the period specified in that order.(7) In this section references to an admission order shall include references to the relevant recommendation and the relevant application.
Communicating the decision Decisions should wherever reasonably possible be given on the day of the hearing and if not, as soon as possible thereafter and within the period specified in the Act. The Commission will provide administrative assistance to the tribunal in communicating its decision to the required persons. It is considered good practice where a patient is discharged from a centre that appropriate discharge arrangements are put in place. To facilitate discharge planning it is advised that in most circumstances where the mental health tribunal decision is to discharge its will be in the patient’s best interests to return to their ward and be discharged from there in accordance with agreed procedures. MHTs, Draft Procedural Guidance, Administrative Protocols, para 4.2 All records and documentation should use suitable language that avoids jargon and can be understood by a lay person. MHTs, Draft Procedural Guidance, Administrative Protocols, para 3.11
Giving reasons The overriding test must always be whether the tribunal is providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its finding of fact. The patient must know why the case advanced in detail on his behalf had not been accepted. Proper, adequate and intelligible reasons should be given which grapple with the important issues raised and can reasonably be said to deal with the substantial points that have been raised. However, the reasons for the decision cannot be read ‘in the air’. Although the reasons may not be clear or immediately intelligible on their face, the decision is addressed to parties, who are an informed audience and so well aware of what issues were raised and the nuances raised by those issues. Nor should the reasons be subjected to the analytical treatment more appropriate to the interpretation of a statute or a deed. The necessity for giving reasons is often underscored by the fact that it is often very important to know the reason why an application has been turned down.
Tribunal decisions — AppealsSection 19 of the Act lays down the provisions for an appeal against a decision of atribunal. Sections 19 (1) and (2) state the grounds for such an appeal and therequired period of notice;Appeal to Circuit Court19.—(1) A patient may appeal to the Circuit Court against a decision of a tribunal toaffirm an order made in respect of him or her on the grounds that he or she is notsuffering from a mental disorder. (2) An appeal under this section shall be brought bythe patient by notice in writing within 14 days of the receipt by him or her or by hisor her legal representative of notice under section 18 of the decision concerned.Section 19 (16) lays down provisions for an appeal against an order of the CircuitCo u r t .19.—(16) No appeal shall lie against an order of the Circuit Court under this sectionother than an appeal on a point of law to the High Court.Where an appeal is initiated the Mental Health Commission shall provide thenecessary legal and administrative support to members of the mental health tribunalfor the appeal. MHTs, Draft Procedural Guidance, Administrative Protocols, para 3.16
§7 — MENTAL HEALTH TRIBUNALSPREPARING THE PATIENT’S CASE
Legal representationThe Commission will assign a legal representative to represent thepatient unless s/he proposes to engage one and actually does so.More particularly, a legal representative from the Mental HealthLegal Aid Scheme is offered to each patient [and] The scheme hasarrangements in place for the patient to arrange their own legalrepresentative or to request a change of legal representative.The purpose of assigning a legal representative is to enable thepatient to present their case to the tribunal in person or throughthe legal representative, so that their views are articulated and anyrelevant material or submissions are placed before the tribunal …Where a patient is unable or unwilling to give instructions, theappropriate course for the legal representative will be to listen tothe patient’s views and to articulate them in the patient’s bestinterest. Mental Health Tribunals, Draft Procedural Guidance & Administrative Protocols, para. 3.10
Formality and manner‘Practitioners new to the field are often anxious about how they should approach and deal with people who havea serious mental health problem. In terms of professional conduct, the principles are the same as for any clientattending the office: to serve the client without compromising the solicitor’s integrity or their overriding duty tothe court and the judicial process.On a personal level, being able to take proper instructions, helping the client to formulate what it is he wants,and then pursuing those objectives in a constructive way, may require more empathy than is usually necessary inmost other legal fields.It should be borne in mind that detained patients often feel uncomfortable and disadvantaged in a formalsituation such as a interview. They may have low self-esteem since much mental ill-health takes root in suchground ... The individual’s false belief that his opinions are of no significance is potentially reinforced by beingdetained and so compelled to accept the views of others; by his subordinate status as a layman in discussionwith a professional adviser; and his status as an ill and irrational patient receiving a rational, sane, visitor …Whatever social approach is adopted, the use of medical adjectives to define the person rather than the conditionaffecting him is insulting, and akin to describing a person with leprosy as a "leper." To refer to someone as a"schizophrenic" or as a "paranoid schizophrenic" is to imply that his personality has been so distorted by theillness that the latter is now the feature which most tellingly defines him as a person. By implication, it is moreaccurate to describe him in this way than to say that he is a person who has an illness called schizophrenia.From there, it is quite easy for a lawyer to drift into seeing his contribution, and legal presumptions abouthuman liberty, as having only a marginal relevance.To summarise, the usual principles governing the solicitor-client relationship apply and few problems will ariseprovided the solicitor is courteous and avoids being patronising.’
Taking instructions It is almost always possible to take detailed instructions. If difficulties are encountered, the only consequence usually is that a long interview is necessary (or several short interviews). The aim should simply be to cover the areas in as natural and conversational a way as possible before the hearing. It is particularly important to be positive and reassuring at the first interview, without making false promises. Some acute wards are very frightening places for those confined in them so the client may be afraid and desperate to be allowed home. Where possible, questions at the first interview should be open-ended, information seeking, and non- judgemental, covering general topics such as schooling, family background, physical health, ward activities, and so forth. It is usually unhelpful to immediately probe, dissect and confront a clients personal beliefs and attitude to treatment. Too challenging an approach leads to resentment and guardedness, and a poor working relationship. It is important to persevere and to be thorough. A detailed interview avoids unpleasant surprises later. By observing and listening to the client and others, the representative can be aware of the strengths and weaknesses of their case, the likely content of reports and oral evidence, and any inconsistencies between client’s account and objectives and what is observed. This enables the representative to anticipate the likely objections to discharge, and to plan questions and submissions that cater for those eventualities. Developing a trust and rapport with the client will help the client to give their evidence in an intelligible and structured way because s/he will trust the solicitor to make appropriate interventions. It also enables the solicitor to explore the possibility of compromise in relation to medication and treatment. The occasional practice of tape-recording interviews with clients has little to commend it. It risks undermining the professional relationship by seeming to compromise its confidential basis, inhibits honest and frank discussion of sensitive subjects, and carries the additional risk of the solicitor becoming incorporated into a paranoid construction of events.
Professional Ethics THE SOLICITOR-CLIENT RELATIONSHIP The usual rules governing the solicitor-client relationship and a solicitors duty to the court apply. The following observations are by way of amplification. PRACTISING THE CLIENT This practice consists of telling the client the questions invariably asked by tribunals and medical examiners and the answers to them commonly interpreted as pointers towards discharge. It is a form of contempt of court. THE SOLICITOR’S DUTY OF CONFIDENTIALITY Many clients are willing to discuss their mental experiences more freely with their solicitor, and the latter may be aware of mental phenomena not recorded in the case notes or aired at the hearing. Whether departing from a solicitor’s duty of confidentiality can ever be justified is disputed. The most common view is that a solicitor remains bound in all situations by the normal duty of client confidentiality and by their duty not to mislead the court. The qualified view is that in wholly exceptional circumstances a solicitor would be justified in disclosing something told to them in confidence. For example, if a tribunal was clearly proceeding on the erroneous basis that there was no immediate significant risk of suicide or homicide. The solicitors obligations then become similar to those of a medical practitioner as defined in the case of W. v. Egdell: onerous but not absolute.
Advice of the Law Society ADVICE OF THE LAW SOCIETY’S MENTAL HEALTH SUB-COMMITTEE (E&W) So far as possible, the solicitor should act in accordance with the clients instructions, and the solicitor’s own morality or religious beliefs should not affect this. The solicitor should, so far as possible, make clear to the client any limits to his duty of confidentiality at the outset, before taking instructions. When placed in a situation where the solicitor has concerns as to the clients mental capacity, and where the client may pose a risk to himself or others, the solicitor should seek advice from the Professional Ethics division in relation to the particular circumstances of the case. Where the solicitor feels it is essential to disclose information confided in him by the client, the solicitor should advise the client that unless the client agrees to disclosure, the solicitor will cease to act. That clients have the right to be heard, and for their views (however bizarre) to be represented. Each case must be considered on its own merits having regard for all the facts.
The Initial Interview1. Retrieve any old files from storage.2. Agree the appointment with the client and the nurse in charge of the ward. It is sensible to verify that the appointment does not interfere with meal-times, other prior appointments, leave arrangements, family visits, and therapeutic activities.3. Check any weekend leave arrangements if the plan is to see the client during a Monday morning or a Friday afternoon. INITIAL STEPS4. Whatever the arrangements, telephone the ward before departing for the hospital, in order to confirm that the patient is present.
On arrival Examine the original application or order and any renewal documents. Verify that the statutory requirements have been complied with. Note the reasons given for invoking compulsory powers. Observe the environment on entering the ward. This often yields relevant information. On entering the ward office, examine the information on the patients’ board. Ask to see the notes. In England and Wales, most consultants have no objection to the patients solicitor reading them, and it may be ward policy to allow nurses to make them available. Ask to be introduced to the client and for the use of a private room. It may be suggested that a nurse is present during the interview but the confidentiality of the solicitor-client relationship precludes this. Be friendly and confident. It is impossible to over-emphasise the importance of greeting the client warmly and confidently, approaching them with an outstretched hand. This demonstrates a friendly and receptive approach, a determination not to prejudge the person on the basis of facts or opinions reported by others, and a lack of any apprehension. In terms of personal safety, such first impressions are important because aggressive or violent conduct is most often triggered by a perception that the prospective victim is at some level a threat, or hostile, or is susceptible to physical intimidation. Nursing and junior medical staff are often best placed to comment on the patient’s mental state. It is, however, usually more prudent to speak with them after first meeting the patient and explaining the need to discuss the facts with staff. The client will have misgivings about the independence of a solicitor who has been chosen for them if s/he is first observed chatting amiably to detaining nurses.
Commencing the interview Explain your role and why you are there Begin by explaining that you are legally qualified; independent of the hospital; there to act as the patient’s advocate, by helping them formulate and present a case for discharge; that you therefore wish to hear how you can help; that what is discussed is confidential unless the client wishes the point to be advanced on their behalf; and that your help is free of charge. Possible alternative remedies and the essential features of tribunal proceedings should then be outlined, the client’s broad aims elicited, and legal aid forms completed. Explaining and exploring alternative remedies It is important not to assume that a tribunal application is the best or only way forward. The alternative ways of being discharged from detention must be summarised and discussed at the outset. Where the clients concerns lie outside the tribunals remit, the appropriate remedy should be explained and any necessary help offered. Explaining the tribunal proceedings The representative should explain that tribunals are independent bodies which exist to ensure that citizens are not detained or liable to compulsory treatment for any longer than is necessary. Record observations Carefully note the client’s mental state and behaviour. This reminds you to ask certain questions, and to explore certain areas, later on.
Taking the case history1 Basic factual information2 Accommodation3 Education, employment, recreation4 Financial circumstances5 Physical health6 Alcohol and drugs7 Forensic history8 Psychiatric history9 Events preceding admission10 The admission itself11 Events following admission12 Medication and treatment13 After-care and support
Basic factual information FAMILY COMPOSITION AND FAMILY RELATIONSHIPS What contact does the client have with his parents and siblings? Do they know s/he is in hospital and, if so, have they visited him? Have they expressed any concern about her/his health or behaviour during recent months? ATTITUDE OF CLIENTS SPOUSE Separation or divorce proceedings may be ongoing at the time of admission. The attitude of the spouse or partner may be that the patient cannot return home or that the children have suffered psychologically because of the clients illness.
Accommodation When a person’s mental state is deteriorating, it is not uncommon for rent or mortgage debts to accrue, for problems with neighbours to arise, or for a landlord’s property to be damaged. It is important to ascertain whether any debts or court proceedings are outstanding that may affect the client’s ability to return home. If the client has no accommodation to go to, a key feature of the case will be the need to arrange housing and after-care. Does the client have accommodation to go to? Are there any rent arrears and/or possession proceedings pending which need to be sorted out? Is the accommodation fit for human habitation?
Education, employment, recreation Introduction The educational and employment history helps to define how severe are the effects of any illness or disability. The history also points to the likely opportunities for her/him in the immediate future, and it is a good indicator of social and economic deprivation. Education The educational history is often a good, if not totally reliable, yardstick against which to assess their current level of mental functioning. It may yield information about the duration and possible causes of any illness or relapse. Where a dementing process is suspected, it is the relative decline that one is particularly interested in. A disproportionate number of detained patients will have attended a special school for children with behavioural difficulties. In some cases, a careful history reveals that the individual first experienced auditory hallucinations or other distressing phenomena at a very early age. All of this information will be relevant in determining the nature of his illness and its effect on his health. How well, if at all, can the client read and write? Is there any suggestion that their intelligence is significantly below average? When did s/he leave full-time education and why? If s/he left school early, did s/he then manage to obtain work? Did the client ever see an educational psychologist at school? Is their current level of intellectual functioning substantially below what one would expect given their education?
Employment EMPLOYMENT HISTORY Quite often, the pattern will be that the client has Viewed historically, does the client’s never been in regular employment since leaving work record reveal any pattern? school; has not worked for many years since first How long has s/he been in each post? being admitted to hospital; or that s/he had a stable employment record until perhaps a year before the Was s/he dismissed from any jobs? first admission. If s/he is unemployed, for how long? In the latter case, there may be evidence of a decline Has s/he undertaken any in professional relationships and performance, employment training courses? leading up to an indefinite period of sick leave, Are there currently any employment resignation, suspension or dismissal. Sometimes opportunities for her/him? this is in the context of a feeling that colleagues at work were conspiring against the client. Has the clients situation at work, school or college been a source of There is still an unfortunate tendency to regard anxiety or worry? people with schizophrenia as unfit for any sort of employment or training that does not involve Has any particular event occurred mundane tasks such as packing boxes. However, it which has caused her/him distress? is usually best not to advise the client to jettison Has there been any criticism of unfulfilled ambitions and opportunities simply her/his performance? because s/he is or has been ill. It is not surprising that so many able clients become disabled if they If the client is in work, is their job at are encouraged not to exercise their abilities. There risk because of the admission to are worse things than relapse, one of which is to hospital? For how long is the job lapse into invalidity. likely to be kept open?
Social interests SOCIAL AND INTELLECTUAL INTERESTS Apart from being an interesting way of getting to know the client, discussing social and intellectual interests often provides useful information about their mental health. If a person is inactive on the ward, this may reflect the limited range of available activities; that medication affects their concentration or causes drowsiness; that s/he is depressed and has lost interest; that her/his attention and concentration are impaired by auditory hallucinations and other abnormal perceptions; that s/he is dispirited at being detained; that s/he is frightened to participate because of the behaviour of other patients; or that her/his interest in intellectual and social activities has declined over the years, as institutionalisation or the negative symptoms of schizophrenia have set in. A limited range of social activities in the community prior to admission may have similar causes, but there are also other possible explanations. A lonely existence may be due to financial or transport problems. If the clients social interests have always been solitary ones, this suggests a natural shyness and introversion, perhaps a sensitivity to criticism, and a tendency to see the world as slightly hostile. On other occasions, it may be that the client has virtually ceased to venture outdoors at all. This may be because of apathy, depression, stupor, agoraphobia, claustrophobia, panic attacks, the disabling effects of compulsive dressing rituals, or a preoccupation with inner voices. S/he may have believed that neighbours or passers-by were surveying him or plotting against her/him and have been frightened to go out, or be protecting the home from burglars, in the mistaken belief that there have been intruders. CLIENTS PREOCCUPATIONS Details of books read in the past establish the likely extent of the client’s vocabulary. This may be relevant if it is suspected that a degree of mental impairment is present or that he is now developing dementia. The subject-matter of any books or newspaper articles which s/he is reading may be illuminating. For example, whether they suggest a morbid interest in violence or pornography or are concerned with mysticism, the occult or political conspiracies. This may lead int o a discussion about the role of supernatural forces and political forces in the events which culminated in the clients admission. If the client watches television or listens to the radio, s/he may be asked if any programmes have been of particular interest or relevance to her/his situation. It is not uncommon for someone with schizophrenia to believe that the programmes contain special messages or signs
Financial circumstances Check the client’s entitlement to income or benefits following discharge. Check whether there are significant debts. Reckless spending leading to substantial liabilities are not uncommon during manic phases if the client was previously creditworthy. This may have serious repercussions for the family’s economic welfare if it is now impossible to pay the mortgage, rent or other regular outgoings, and the client cannot return to work. There may well be court proceedings on the horizon, with summonses, or letters before action from credit control agencies, lying unopened at home. Less often, there is evidence of financial exploitation. The client may have made a significant gift to someone or have allowed her or him control of a bank account. What are the clients liabilities? Over what period of time did these arise? How are the debts to be paid? Can any of the liabilities be avoided? Are there any court proceedings pending? Is the client getting all the benefits to which s/he is entitled?
Physical health Physical health problems may be real or imaginary, and the product of a persons mental state rather than its cause. A conversion symptom is a loss or alteration of physical functioning which suggests a physical disorder but is actually a direct expression of a psychological conflict or need. The disturbance is not under voluntary control and is not explained by any physical disorder. Hypochondriasis denotes an unrealistic belief or fear that one is suffering from a serious illness despite medical reassurance. FAMILY MEDICAL HISTORY The client should be asked about any serious physical health problems from which family members have suffered, in case any of these are of an hereditary nature or have triggered his present distress. Did the client have any problems with his physical health as a child or during adolescence other than the ordinary childhood illnesses such as measles? Has s/he ever suffered head injuries, been unconscious, been hospitalised, or undergone an operation? Did s/he notice any physical changes during the months preceding admission or during the period preceding her/his first psychiatric admission? Has s/he recently been in hospital for the investigation or treatment of a physical condition? When did s/he last see a General Practitioner? Is there any evidence of malnutrition or weight-loss?
Alcohol and drugs Various conditions attributable to the consumption of alcohol or drugs mimic psychiatric conditions such as schizophrenia, or may trigger such a condition in someone already predisposed to it. If the client is dependant on alcohol or has taken illegal drugs, the details must therefore be carefully noted. For the same reasons, a note should also be made of any medication which the patient is or was taking for a physical condition. Is there any evidence that the client was consuming an excessive amount of alcohol prior to admission or that s/he was taking prescribed or non-prescribed drugs?
Forensic history The representative will require details of all previous convictions and periods in custody and the circumstances of any offences of violence. The forensic history is an important indicator of the likelihood of harm to others associated with mental disorder. If there is no apparent temporal link between a patients history of offending and their history of mental illness, this may lead to a classification of psychopathic disorder. A record of drug-related offending draws attention to the possibility of drug-induced psychosis although, more often, the illegal drugs simply act as a trigger in someone already predisposed to that illness. Two basic points must always be borne in mind when considering the forensic history. Firstly, it cannot be overemphasised that people with mental health problems may be predisposed to crime as much as any other individual from the same background. Secondly, because diverting people away from the criminal courts is now widely encouraged, the absence of criminal convictions does not necessarily reflect an absence of criminal conduct. Does the client have any previous convictions or any criminal proceedings pending? Has s/he ever had to be physically restrained or placed in seclusion while in hospital? Has any person taken civil proceedings for an inj unction against her/him, forbidding him from having contact or entering the family home?
Psychiatric history The solicitor will need details of previous Distinguish between objective facts and their admissions and periods of out-patient treatment, subjective interpretation. A single patient may and need to establish whether the patient ceased acquire many different diagnoses over time but treatment during the weeks or months prior to the these are rarely explicable in terms of any present admission. corresponding objective changes in their If there is no prior history of mental disorder, the condition. Most often, the different diagnoses immediate biomedical aim will be to explain the reflect only different diagnostic fashions and present (the pathology) by reference to the past practices. (the aetiology) and so to predict the future (the It is helpful to obtain a clear idea of the duration prognosis). of any periods which the client has spent outside The purpose of taking any history is to look for hospital relative to periods spent as an in-patient. patterns of events which have an explanatory or predictive value. The link may be that the patient Is this the clients first admission to hospital? relapses when s/he stops treatment, or that the illness is cyclical in nature (remitting and returning How many times has s/he been in hospital? at definable intervals of time), or that particular Has s/he received out-patient treatment in the anniversaries or kinds of event precipitate periods p a st ? of illness. Is there any pattern to her/his admissions or It may be that all or most of the patients periods of periods of remission? in-patient treatment are relatively short or relatively prolonged, and the tribunal case can be planned Does s/he have a history of stopping treatment with this in mind. against medical advice following discharge? In general terms, events in the past reveal the nature of the illness and the patients response both to it and to treatment. For example, multiple admissions to different hospitals suggests an unstable lifestyle marked by poor compliance with after-care programmes.
The current admission Events leading up to admissionCurrent admission The admission itself Developments since admissionFor convenience, the recent history can be dealt with inthree stages: events leading up to the admission, theadmission itself, and the developments since admission.
Events preceding admission Much of the relevant information will already be apparent from the information about the patient’s family circumstances, accommodation, employment history, financial position, and medical history. The solicitor needs to know for how long the patient has been ill, what triggered the illness or relapse, whether s/he stopped treatment unilaterally, and what her/his attitude was to any suggestion from family members or professionals that s/he accept voluntary admission. If the client unilaterally ceased taking medication, when and why needs to be established. Most often, the reason is that the patient thought that s/he no longer needed it, did not want to become dependent on it, or the side-effects were intolerable. Depending on the evidence available to them and the degree of suffering, discontinuance may or may not have been a reasonable risk to take at the time. At what point did the client’s mental health begin to deteriorate? Did s/he stop taking medication prescribed to prevent a deterioration? Is there any evidence that particular stressful events triggered the present episode of illness, or were any such problems consequences not causes of the patient’s illness?
The admission itself With compulsory admission, matters usually come to a crisis and some event occurs that persuades family members or professionals that there is no other realistic course of action. This may involve the police and the client’s arrest or detention; an attempt by an voluntary patient to discharge themselves from hospital or to refuse medication; an incident of self-harm or harm to others; serious self-neglect; complaints by neighbours; or bizarre behaviour at home. It is important to identify what occurred immediately prior to the decision to invoke compulsory powers and caused that decision to be made. If the client is not forthcoming, the grounds recorded on the admission papers can be read to them as an aide-mémoire.Admission initially voluntary or informal If the patient’s admission was originally on a voluntary basis, this may demonstrate some appreciation of the need for assessment or treatment. However, such an admission is sometimes more informal than voluntary. It may have been made clear that an application would be made if informal admission was refused. If the original admission was informal or voluntary, the subsequent use of compulsory powers may indicate that the patient’s mental state has deteriorated; that it is more serious than was first believed; that a serious incident has since occurred; that different opinions are held about the necessity of a particular kind of treatment, such as anti-psychotics, or their administration by injection; that the patient lacks insight into their need for intensive treatment; that their consultant lacks insight into the patient’s situation or condition; or that the consultant has made no real effort to enlist co-operation or to achieve a compromise: the choice has never been anything but informal or formal treatment on the consultant’s terms.
The admission itself (2) QUESTIONS FOR THE CLIENT What events or concerns gave rise to the admission? Why do the client’s doctor or nurses say that admission and compulsion was necessary? What circumstances immediately preceding the decision to invoke compulsory powers led to that decision being taken? Did those circumstances justify the conclusion that the client was mentally disordered and that her/his admission was justified? Does the client accept that s/he was mentally unwell at the time of admission and/or that s/he needed to be in hospital? If the client accepts that at the time of admission s/he required medical help, in what way? Why does s/he think that s/he became unwell? How would s/he describe that illness? What were the symptoms, the exact way in which s/he was unwell? Did anything happen before s/he came to hospital which contributed to her/him becoming ill? Does s/he consider that her/his mental state is now different? If so, in what way? Does s/he consider that s/he still needs in-client treatment? If so, for how much longer? Has any one explained why other people consider that s/he still needs to be in hospital? Do her/his parents or relatives agree about this? If the client believes that their admission was unnecessary but s/he has had previous admissions, were all of those admissions also unwarranted? If the client disputes the evidence in the reports, what motive does s/he ascribe to the reporter for giving that account? Why would the relevant nurse record that s/he had said or done something if s/he had not? Does s/he consider that s/he is now functioning at her/his optimum level? If not, in what respects is s/he still not entirely back to her/his normal self?
Events following admission Having established the general history and the circumstances that led to the use of compulsory powers, the way in which matters have developed since admission should be dealt with. Subsequent events may represent a step backwards from discharge. For example, transfer from an open to a locked ward or to a hospital which has facilities for managing patients whose behaviour is threatening and difficult to control. More often, the patients situation will have improved so that discharge from hospital or the revocation of compulsory powers are now more realistic options. If the client was admitted to a locked facility, progress typically commences with brief but gradually increasing periods of escorted leave in the hospital grounds; followed by periods of unescorted ground leave and transfer to an open ward; followed by unrestricted ground leave and periods of escorted leave outside hospital; followed by day or weekend leave at home; followed by unlimited leave at home subject to taking medication, attendance at out-patient clinics, and support from a community psychiatric nurse; followed by formal discharge from hospital; and, eventually, the discharge or expiration of the application or order authorising his detention. Most often, progress is not uniform and, human nature being what it is, some failure to comply fully with leave arrangements is to be expected. A practical approach to minor departures from the regime, such as lateness back from home leave, is normal.
Events following admission QUESTIONS Does the client spend all their time on the ward? If so, is this by choice or because it is a locked ward and part of their management programme? Is s/he allowed off the ward and, if so, for how long each day? Is this with or without a nursing escort? If without an escort, does s/he require express permission or does s/he have a ‘general pass’ to be off the ward? Is s/he allowed leave only within the confines of the hospital grounds or does s/he also enjoy town leave? When the client goes into the local town, how does s/he spend her/his time? Has the client been granted any day or weekend leave at home? If so, for how long has s/he had the benefit of this? What, if any, are the conditions imposed on that leave? If the client is currently spending all or most of their time on the ward, what is the more important goal for her/him? To be at home, even if on section, or to be off section even if in hospital?
Events following admission MATTERS UNHELPFUL TO DISCHARGE It is crucial that the client is frank with their solicitor about such matters, and the importance of this must be emphasised. In some cases the reports are only available at the hearing and in other cases significant developments post-date their preparation. The solicitor should stress that s/he relies on the client to put in context anything which may be construed as adverse, and in sufficient time to enable a response to be prepared. QUESTIONS Has the client been restrained or placed in seclusion? Has it been alleged that s/he has harmed her/himself or assaulted anyone? Will it be alleged that s/he has damaged any ward property or has been physically or verbally threatening? Has anyone complained about her/his conduct on the ward? Has s/he refused medication or refused to attend part of the ward programme? Is it alleged that any untoward incidents have occurred while s/he has been on leave? Has leave ever been revoked or cancelled as a result? Has s/he always returned to the ward from leave at the required time? If not, for how long was s/he away? Did s/he return of her/his own volition or was s/he returned by police or nursing staff? Where was s/he during her/his absence? Did s/he take medication during that period?
Medication and treatment (1) In most cases the client will be receiving some form of medication or a physical treatment such as ECT … Although the benefits cannot always be demonstrated, tribunals invariably see medication in black and white terms. It is simply a question of whether or not the patient can be relied upon to take medication as prescribed, not whether there are reasonable grounds for not taking the medication in the doses prescribed. In other words, it is not a question of whether the patient has the capacity to come to their own decision in a rational manner but whether or not he will comply.
Medication and treatment (2) INSIGHT By medical custom, ‘insight’ refers to the patient’s awareness of the abnormality of her/his experiences and the fact that their symptoms are evidence of the presence of a mental illness which requires treatment. Although any person’s insight into their own or someone else’s mind can only ever be partial, the patient’s lack of insight may often be gross and involve a failure to distinguish subjective from objective experiences. The patients view not infrequently tends towards one of two poles. Either the admission was necessitated by malign internal forces (ill-health) or it was the product of malign external forces (a failure to understand his situation by others, parental over-anxiety, malice, a conspiracy, and so forth). Although insight is usually beneficial, because it increases the chances of compliance, it is not essential and, indeed, may sometimes be highly undesirable. Many naturally passive, co-operative or compliant individuals take medication without demur, without ever understanding its role, or feeling that it is necessary. Their complete lack of insight is not considered to be a problem. Ultimately, it often suffices that the patient has insight into the legal if not the medical consequences of non-compliance — s/he has learnt from experience the ‘lesson of consequences.’ If the patient is not willing to bow to the inevitabilities, the sensible course is to see if some compromise concerning medication can be agreed. While a general advantage of injections over oral medicines is certainty about whether the drug has been received, they are unacceptable for many people. Consequently, this clarity consists only of knowing that the drug has not been received. The real choice may be between compromising on oral medication by consent or compulsory treatment by injection.
Medication and treatment (3) QUESTIONS FOR THE CLIENT If the client considers that s/he is now functioning normally, does s/he still need the medication that is being prescribed? What would be the likely effects, if any, of now ceasing medication? Would there be any risk of their health deteriorating? Has the medication been beneficial in any way? What is the medication given for? Has its purpose been explained? What are its likely effects? Does the medication have any adverse effects? If so, is the client receiving further medication to control the effects of the other medication? If that is the case, does that medication in turn have adverse effects? Might the client be prepared to consider taking some alternative prescribed medication? Has s/he previously taken any medication which s/he thinks did help and which s/he was, and would now be, willing to take? If the client says that s/he is now well, and that s/he has not had any kind of mental health problem, then why would s/he take the medication at all, particular if it has very unpleasant adverse effects? Has the client attempted to refuse the medication on the ward? If so, was the team called? If s/he is given the medication orally does s/he swallow it or sometimes hold it under her/his tongue? If the client considers that s/he has been ill but is now well, what does s/he think has brought about that improvement? If the section is revoked, and s/he is free to decide whether or not to take the medication, would s/he take all of it, part of it or none of it? At the current doses or in smaller dosages? If the client is willing to continue taking medication on an informal basis, then for how much longer? Who will decide that s/he no longer requires it — the client or the doctor? What if at the end of the period for which s/he says s/he will take it, her/his doctor strongly advises her/him to continue? Would s/he heed that advice or not? Does s/he have any objection to receiving the medication by injection?
After-care and support The representative should establish what kind of after-care the patient has received in the past and what s/he would be willing to agree to if discharged from hospital. It may be that non-compliance with after-care services was not a factor in the present admission, but there is evidence that the services provided were poorly resourced, poorly planned, or poorly delivered. In appropriate cases, where there is little or no evidence of after-care planning, the solicitor may consider commissioning an independent social work report. What support, if any, would the client be willing to accept when discharged from hospital? Would s/he be willing to be visited by a community psychiatric nurse, to see a social worker, or to attend out-client appointments? Would s/he be willing to see his General Practitioner periodically if so advised? Does s/he respect or trust the opinion of any particular professional currently or previously involved in his care? Would s/he be prepared to accept that persons advice about what medication and other treatment s/he needs? Would s/he be willing to remain in hospital as an informal patient until her/his consultant is satisfied that appropriate arrangements had been made for her/his care outside hospital? Has s/he ever discharged her/himself against medical advice?
Persecutory delusions Has the client ever had the feeling that other people were talking about them, or referring to them, when in public? Do people laugh at her/him or denigrate her/him in some way? Do other people ever listen to her/his conversations, monitor their telephone calls, or interfere with post or the contents of her/his flat? Has s/he ever been followed or spied upon? Are any people conspiring against her/him? If so, was the current admission part of this conspiracy? Is her/his family or anyone at the hospital involved in this conspiracy or presently monitoring her/his activities? Is s/he safe in hospital? Has anyone tried to physically harm the client? Has their food, drink or medication ever been tampered with? Do other people spoil plans s/he makes and hold her/him back from achieving the success which is due? Does the client believe that their thoughts, body or actions are influenced or controlled by other persons or forces? Has anyone inserted their thoughts into the client’s mind or stolen their thoughts? Does s/he believe that other people know what s/he is thinking or that s/he can read their thoughts? Does s/he believe that any recent items on the television or radio, or in a newspaper, referred to her/him or contained a message for her/him? Has anything else which s/he has come across included a coded reference to her/his situation? For example, the message might be in the form of graffiti, a car number- plate, a logo on a chocolate-wrapper, digits displayed on a liquid-crystal display, or certain colours, a yellow shirt meaning "you are a coward." Is the client frightened? If matters do not improve and the threat remains, how will s/he deal with the threats to her/his safety? Would violence ever be necessary or justifiable as a form of self-defence? Would the client ever consider ending their own life if the suffering became too intense? Have thoughts of suicide or violence ever been inserted in her/his mind?
Grandiose delusions Paranoid delusional beliefs are commonly associated with grandiose delusions. An obvious question which arises from a paranoid chain of thought is why the identified third party wants to harm the client? The ascribed motive may be jealousy or the fear of some special talent, knowledge or power which the patient possesses … In other cases, the patients grandiosity may reveal itself in beliefs that s/he has great wealth, is a person of national importance, or is related to the royal family. Does the client possess any particular powers, information, knowledge or abilities which other people on the ward do not also have? If people are trying to harm her/him, why is that? Can s/he control what other people think or do and, if so, can s/he give an example of this? Do they ever pick up her/his thoughts and act on them? Does the client have a decreased need for sleep? Does s/he spend money excessively, running up substantial debts which do not concern her/him because of grandiose delusions about her/his wealth or the fut ure success of plans which s/he has made?
Delusions of guilt Delusions of guilt or sinfulness are commonly associated with depression but may also be found in cases diagnosed as schizophrenia and in certain organic conditions. The patient feels immense guilt for things said or done in the past. He may imagine that he is personally responsible for some imaginary disaster or a real misfortune which logically could not be his fault or of his doing. Examples include a patient who believes he is personally responsible for the suicides of other patients in the hospital (they picked up and acted on his own suicidal thoughts); for an aircraft disaster or earthquake; or for the death or illness of a parent. The risk of suicide is extremely high in such cases. The patient may believe that only his death can properly atone for these sins, that he is unworthy to live, or that his suffering and guilt is so intense that death would be a release. Great care must be taken to identify the risk of self-harm and details obtained of any suicide attempts. Does the client feel responsible in any way for the suffering of other people? Has he ever contemplated or planned suicide? Has he ever harmed himself? What does he see as his good points and as being the reasons for wanting to live?
The final questionEven if there is good evidence of mentaldisorder, the final questions must alwaysbe, "so what?" and "does it matter?"More particularly, is the client or are otherpeople suffering as a result?Furthermore, would alleviating thesymptoms and any gain of insightmake life more or less bearable for him asmatters presently stand?
General1 Enter the information from the interview on a case summary form or in the form of a statement.2 Complete a time record sheet.3 Notify the tribunal office if necessary, requesting copies of the usual reports when they are available.4 Submit any legal aid forms and applications.5 Write to the client, explaining their legal position and rights, confirming their instructions and the action taken, and setting out how the solicitor expects the proceedings to progress.6 Make arrangements to obtain relevant information and files.7 Contact relatives and witnesses, where this has been agreed with the client.8 Contact the patient’s consultant about inspecting the patients case notes.9 Make inquiries of about after-care facilities and discharge planning.10 Lodge any applications or requests to the tribunal, for directions and so forth.11 Identify the likely hearing issues and the case strategy.12 Where appropriate, commission any reports.13 Where appropriate, draft a written submission.
Develop a case strategy GENERAL Subject to time constraints, taking a comprehensive statement will usually require more than one interview. Once the reports are available, it will be necessary to obtain the clients observations on them. S/he will need to be seen shortly before the scheduled hearing. This is so that final preparations are made on the basis of their contemporaneous mental state. However many times it is necessary to see the client, and he may request additional visits, the steps listed on the following page should be taken following the initial interview. THE CASE STRATEGY Based on the diagnosis and history, and the client’s instructions, it is important to identify the likely hearing issues at an early stage, and to plan the case with them in mind. It should be readily apparent what is likely to be the medical diagnosis. This is reached according to a simple system of pattern recognition, and in most cases involves no real skill, the pattern of symptoms being as obvious to a lawyer, nurse or social worker as it is to a doctor. Similarly, the prognosis is largely based on the history of response to treatment so that anyone aware of that history can make a shrewd guess as to how matters are likely to progress. It is also important not to be bound by very specific instructions in terms of the preferred outcome. Secondary aims can be pencilled in, and additional evidence gathered with them in mind, in case the declared primary aim is unattainable.
Medical Reports —What to look forThe content of any psychiatric report is the product of two things: the content of thepatient’s mind interpreted by the content of the doctor’s mind.The evidence of mental disorder consists of:1. Facts (things actually said to or observed by the writer);2. Inferences from these facts;3. Hearsay (facts communicated to the doctor);4. Inferences from hearsay;5. Assumptions and suppositions about matters not reported or observed; and6. Presumptions about what causes and alleviates severe mental distress.Many matters presented as fact are nothing more tangible than suppositions orinferences based on the assumed content of the patient’s mind.The quality and accuracy of health service records, and of Home Office recordsrelating to the index offence, are highly variable and necessarily mostly hearsay. Thereis often scope for hearsay gradually to acquire by virtue of frequent repetition thestatus of hard fact, or for established facts to become distorted.
Commenting on the report Submitting written observations on the medical report enables the issues to be clarified and itemised in advance of the hearing. From the patient’s point of view, it ensures that when the tribunal members receive the report in advance of the hearing they will read it together with her/his observations as to their accuracy, and with the benefit of any counter-balancing points helpful to discharge. Because medical reports do not usually advocate discharge, written observations ensure that the tribunal members do not come to the hearing aware only of the reasons for not discharging, with an unconscious inclination against discharge. Early observations may also allow the medical member to be aware of the issues likely to be canvassed at the hearing. If the patient has difficulty communicating their opinion and feelings, or is likely to have difficulty understanding some of the questions asked at the hearing, perhaps because s/he is severely mentally impaired, or has a poor grasp of English, it is also fairer to take the time to set out her/his case in writing.
Inadequate reportsIn England and Wales, the standard of medical reports varies markedly.Some are limited to no more than three-quarters of a page, do not include therelevant medical history, and cannot be said to constitute a ‘full’ report on thepatient’s medical condition.Although the authorised representative may apply to the tribunal for a direction thata further report be provided, the preparation of the patient’s case is necessarilyhindered by a poor report unless access to her/his medical records can be agreed.Other reports are not ‘prepared for the tribunal,’ being first written for a managers’hearing with the original heading then changed and a brief addendum added.Quite often, the report is written by a junior member of the responsible medicalofficers team. Although the rules do not prohibit this, the report should ideally becounter-signed by the responsible medical officer, so that it is clear that it accuratelyreflects her/his reasons for not discharging the patient.
The silent evidence PROGRESS SINCE ADMISSION THE SILENT EVIDENCEThe patient was admitted to hospital While a report or case note will recordunder section 3 on 1 January. He was any symptoms or signs of mentalacutely unwell, and there was clear disorder, it will not specify all of theevidence of auditory hallucinations, questions asked and the mattersideas of reference and passivity raised which, when dealt with, werephenomena. On 6 January, he indicative of normal mentalthought that one of the nurses might functioning.be an imposter. On 13 January, he That being so, a report or note maywas aggressive, verbally threatening conceal a great deal of normal mentalanother patient. On 16 January, he phenomena and the greater truth isfailed to return to the ward after his sometimes to be found not in what a30 minutes leave, and spent four report says but in what it does nothours at home. On 19 January, he say. The representative must seek outwas distracted and was laughing and draw attention to this silentinappropriately, no doubt in response evidence.to auditory hallucinations.
Psychiatric Report (1) Circumstances leading to admissionGiovanna was admitted to Ward 17 ten days ago. She was escorted by six policemen and was inhandcuffs. She had stabbed her room-mate during the course of an altercation and the police hadbeen called. She was seen by the police surgeon who arranged a Mental Health Act assessment,following which she was placed on section 2. She has also been charged with assault.Mental State on AdmissionShe was very disturbed on admission and required emergency sedation. She was reported to havebeen screaming, shouting what appeared to be abuse in Italian, and at times seemed to beresponding to visual and auditory hallucinations. One of the nurses was struck on the jaw and hasbeen off sick since.Progress since admissionGiovanna settled rapidly after initial treatment with Acuphase, but continues to have episodes ofdisturbed behaviour. During these she appears frightened and seeks reassurance from the staff. Shehas said the Devil wants to take her away. At other times she is observed to isolate herself, andappears to be talking to herself with her eyes closed. When challenged, she says she is talking toSan Giovanni.Communication has been something of a problem.Current Mental StateGiovanna remains withdrawn and spends much of the time in her room. She sleeps a lot. Shebecomes quite tearful at times, saying she is a bad person. She still maintains that she stabbed herflatmate to save herself. She no longer believes her flatmate was the Devil, but says she waspossessed by him. She says she would do the same again if she had to. She has continued torespond to auditory and visual hallucinations, though less frequently. She does not accept that shehas been mentally ill, and takes medication reluctantly.