Access to justice for mental health patients in a time of Covid-19

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When I was interviewed in the 1980s for the position of senior social worker at Broadmoor maximum security hospital the medical director, Dr Patrick McGrath, said, “We could let half of the patients here leave, the problem is that we don’t know which half.” I discovered this for myself as soon as I started the job. A young patient called Alan Reeve, who had previously committed two homicides, escaped from the hospital, scaling two perimeter walls to meet a getaway car driven by a probation service volunteer (sic) who would become his future wife. They escaped to Amsterdam, where the couple lived in squats until a year later Reeves shot a policeman dead following an attempt to steal two bottles of whisky to celebrate the anniversary of the Broadmoor escape. Prior to his escape from Broadmoor Reeves had appeared to be a reformed patient, taking a degree from the Open University in sociology, and his escape followed recommendations by his clinical team to the Home Office that he be released to begin a Ph.D.

Since retiring as professor of social work from the University of Bath, my day job has involved revisiting the conundrum, ‘Who can safely be released?’. I sit as a specialist member of the Mental Health Tribunal (MHT), a tribunal empowered under the Mental Health Act 1983 (amended 2007) to adjudicate appeals entered by patients against compulsory detention in hospital or supervised treatment in the community. Since 2008 the MHT in England has been part of the Health and Social Care Chamber of the Royal Courts of Justice, independent of the NHS and any hospitals (many now private) where patients are treated. Each tribunal comprises a judge, a psychiatrist and a specialist member, someone with mental health expertise usually from a social work, clinical psychology or voluntary sector background. The legal obligation is upon the detaining authority to prove the necessity of compulsion and every patient has automatic entitlement to legal aid funding for representation by a solicitor or barrister. The tribunal proceeds on an inquisitorial basis, chaired by a judge and usually with cross-examination of medical witnesses by the tribunal’s psychiatrist, and cross-examination of the non-medical witnesses by the specialist member. Most cases are not as dramatic as Reeve’s; most people detained under the Act are not a risk to other people, the primary risks are to their own health, self-harm or their vulnerability to exploitation. However, the stakes can be high: three years ago the MHT discharged a Bristol patient who within hours killed a fellow resident in a hostel. Decades of research into the actuarial prediction of risk have produced only modest insights; as the Danish physicist, Niels Bohr said, “Prediction is difficult, particularly if it’s about the future

Unlike most judicial hearings the tribunal travels to conduct its hearings to the hospital or facility where the patient is detained. As in other areas of the courts and tribunal service, Covid-19 has presented substantial challenges to the conduct of efficient and fair legal proceedings for mental health patients. Since the initial lockdown in March 2020 tribunal members have been unable to conduct face-to-face hearings, legal representatives likewise are unable to meet patients and have to take instructions by phone or video conference. Patients are unable to receive visits from family and significant others who would normally support them, and potentially attend and give evidence at tribunals.

The challenges are significant. The Mental Health Act (MHA) requires hearings to be held within strict time limits, none of which have been relaxed since lockdowns began; in the case of patients detained for 28 days under Section 2 of the MHA, the hearing must happen within two weeks of the application. This means a Tribunal panel has to be assembled, reports circulated, a solicitor or barrister appointed and instructed by the patient, a hearing date agreed, and the hearing completed. In contrast, within the criminal justice system severe delays have rapidly accumulated post-Covid-19; by December 2020 there were 53,000 cases waiting to be listed in the Crown Courts, with some already listed for hearing in 2022. At the point of writing, the MHT is managing to keep pace with applications for hearings. This has been established by extensive redeployment of resources. Initially, the national continuing professional development training programme was suspended, to be replaced by compulsory training for all members in conducting hearings using a bespoke video conference platform. At the same time, office staff in the national MHT office were trained to give technical support to online hearings, so that in effect the usual role of the court clerk was replaced by the virtual attendance at each tribunal by a technical support person, who gives particular attention to seeing that all parties are able to participate, either by phone or video link.

At the heart of the tribunal hearing is the patient, and the necessity that they feel they are getting timely and effective access to justice. In some respects, virtual hearings increase organisational efficiency. Pre-Covid-19 we worked on a regional basis and the number of cases we could undertake depended on the constraints of physical travel between hospitals; now with the ‘magic carpet’ of the internet we work from home but may be adjudicating in a case in Liverpool in the morning and Kent in the afternoon, so panel members can be deployed wherever there is need. A potential downside is that sitting at a geographical distance means we often have no knowledge of local facilities; perhaps a patient could be discharged safely if suitable supported accommodation is available – the panel may require an adjournment for further reports to be compiled or an additional witness to be called.

Initially, there were significant ‘digital divide’ issues to overcome; in particular many hospitals were not ready to facilitate patients and clinical staff having convenient but private access to IT; at my first virtual hearing the patient participated using an iPhone borrowed from a nurse. We have moved relatively quickly to a situation where many hospitals have repurposed their dedicated tribunal rooms with IT equipment and socially distanced seating for participants. Initially, some hospitals’ IT systems had software problems such as firewalls that obstructed the conference software, or their computers had browsers that were incompatible, but these issues are now rare.

Ongoing evaluations of the patient experience have not yet been reported, but the prospect of a virtual hearing does not appear to deter patients from applying to the MHT; numbers of applications continue to rise, nor are patients apparently deterred from appearing at the virtual tribunal. It might have been anticipated in particular that patients who have paranoid beliefs, often incorporating ideas about being under surveillance from hidden cameras, microphones, implanted chips in their body, etc would be reluctant to appeal. So far there is no evidence of this; perhaps the ubiquity of smart phones, Skype and other video platforms have partially normalised this mode of communication?

An additional challenge is the facilitation of communication between patients and their legal representative prior to the hearing. The legal representative needs to scrutinise reports with the patient, take instructions as to the outcome the patient seeks (eg, seeking complete discharge from detention, perhaps to remain in hospital on a voluntary basis, sometimes merely to seek reassurance that the treating team is actively taking forward plans for discharge to the community) and perhaps to explore who should be called as witnesses to support the application. Undoubtedly this is more difficult to undertake by telephone or video link; for example, so-called ‘restricted’ cases where the courts have made a determination that a patient constitutes a serious potential risk to the community invariably involve numerous lengthy reports, including the view of the Ministry of Justice and sometimes a victim statement. All of these need to be considered between the solicitor/ barrister and the patient prior to the hearing, something that is undoubtedly easier in a face-to-face meeting.

The hearing itself tends to last longer, and all parties report the increase in fatigue, so-called ‘Zoom brain’ (not yet a recognised diagnosis within the WHO’s International Classification of Diseases).  For many years the success rate of patients applying to have detention orders discharged has run at around 10 per cent. It remains to be seen whether this changes; we would also have to be cautious in interpreting variations in discharge rates. Periods of lockdown undoubtedly make it more difficult for patients to demonstrate that the risks can be managed if they return to the community; the normal means of demonstrating readiness for discharge are extended periods of trial leave in the community. Currently, many community facilities are not accepting new referrals so trial leave cannot be arranged. Similarly, hospitals are restricting the leave they grant to patients because of fear of Covid-19 transmission into the hospital from patients who are moving in and out of the community. The general experience of hospital patients of restricted access to visits to family and friends, leisure, therapeutic work experience and other community-based activities is likely to slow their recovery.

During the time when this blog was being written new case law has challenged fundamentally the legality of detaining patients on the basis of assessments undertaken virtually. On 22 January 2021, the High Court ruled (Devon Partnership NHS Trust v Secretary of State for Health and Social Care [2021] EWHC 101 (Admin)) that the medical recommendations that are required to support a valid application to detain a patient under the Mental Health Act should only be made after the doctor has ‘physically attended’ upon the patient, as opposed to conducting an assessment over a video link. The ruling is not being appealed so all patients detained under the Mental Health Act during the Covid-19 pandemic following assessment over a video link would now be deemed by a court to be detained illegally; NHS England has issued guidance that all such patients must now be reviewed as a matter of urgency by detaining authorites, and either given informal patient status or further detained under the emergency 72 hours powers of the Mental Health Act while in-person assessments are arranged.

This new case law inevitably raises the question whether all detentions in hospital or supervised treatment orders confirmed by virtual sittings of the MHT are now illegal? The determination has been that the need to assess ‘in person’ only applies to the original decision to section a patient, which is specified by section 12 of the MHA requiring interviews to be conducted in person (interestingly this section of the 1983 MHA originally was framed to prevent professionals from rubber stamping the detention of patients without seeing them in person); the Tribunal has so far been deemed not to be constrained by section 12 of the Act. However, henceforth the Tribunal will need to ascertain at each hearing that the case is ‘justiciable’, that the patient who appears before it was lawfully detained by doctors and social workers who have personally interviewed the patient.

All this is happening in the context of wider concerns about the fitness for purpose of the 1983 (amended 2007) Mental Health Act. Baroness Brenda Hale, former President of the Supreme Court for the UK, noted in a previous (lowlier) incarnation as a lecturer in mental health law at the University of Manchester, that British mental health legislation tends to progress in roughly 25-year cycles (Acts of 1933, 1959, 1983, 2007) and oscillates between giving primacy to clinical discretion over matters of compulsion, and legalism which prioritises judicial oversight. Prime Minister May initiated an independent review of the Mental Health Act amidst concerns over the growth of compulsion in mental health treatment, over-representation of BAME patients in the detained psychiatric population, and general difficulty for mental health patients in exercising choice and self-determination. The review reported in 2018 and a White Paper is now out for consultation in anticipation of a new Mental Health Act. The White Paper seems to represent a swing of the pendulum back towards legalism, enacted partly through increased powers for the MHT. Patients would be able to apply to the MHT more frequently, and the MHT would not only have jurisdiction over compulsory detention, but it would also be able to direct responsible health and social care agencies in the implementation of care plans and ensuring access to services. Meanwhile, members of the Health and Social Care Chamber have been warned that virtual hearings will continue for the foreseeable future. The Covid-19 pandemic is likely to produce exponential growth in the need for mental health services, both because illness, isolation and economic insecurity are combining to exacerbate existing mental distress for individuals, but also because it is triggering the onset of psychological problems in people who were previously well. As a recent position paper in The Lancet Psychiatry argued, to meet this potentially overwhelming level of need we will have to adapt all aspects of mental health services . Virtual technologies are likely to be a continuing element in the mix of post-Covid-19 mental health services, perhaps including Mental Health Tribunals.

Nick Gould, Emeritus Professor of Social Work and a specialist member of the Mental Health Tribunal

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