Mental health tribunal

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A mental health tribunal is a specialist tribunal (hearing) empowered by law to adjudicate disputes about mental health treatment and detention, primarily by conducting independent reviews of patients diagnosed with mental disorders who are detained in psychiatric hospitals, or under outpatient commitment, and who may be subject to involuntary treatment.

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The usual composition of the panel varies by jurisdiction but may consist of a legal member, a medical member and a community/specialist member. The legal member may be a senior lawyer or judge (often senior counsel) and acts as the chair; the medical member may be a senior (e.g. consultant) psychiatrist and has often held clinical responsibility for detained patients before; and the community/specialist/'non-legal' member is neither a lawyer or medical doctor but has relevant qualifications (often at postgraduate level) and/or specialist experience in mental health, either as a mental health professional or a specialist layperson.

Attendees may include the patient, a patient advocate, legal representatives (lawyers), any family (especially next of kin), and mental health professionals involved in the person's care (typically including the clinician with primary responsibility for the patient) or brought in for an independent view. The hearings may be held privately or may be open to the public, depending on the jurisdiction and individual circumstances.

Many Western developed nations use a tribunal model (they may be termed review boards) for mental health. There is usually provision to appeal decisions to a court (judicial review). By contrast some countries use an entirely judicial (courts) model, while some have no oversight or review body at all.

The World Health Organization observes that most countries around the world use some type of 'independent authority such as a review body, tribunal or a court to confirm involuntary admission based on medical/psychiatric/professional expertise.' Such authorities generally also adjudicate findings of incapacity to consent to or refuse medical treatment, and the issuing of community treatment orders (outpatient commitment) in countries that have them.

In countries that use the courts, although they have the advantage of unambiguous legal status, the court process can become a 'rubber stamp' exercise where judges make decisions in the absence of patients, representatives or witnesses, and endorse medical recommendations without independent analysis. Independent tribunals of specially selected members with expertise in the area are said to be more competent bodies if operated properly. [1]

Many countries require that every person recommended for detention or involuntary treatment be reviewed in a legal hearing, with legal representation provided. Some countries with fewer resources may initially only require a paper review in straightforward cases, or may not review very short detentions (e.g. less than 72 hours). However, the WHO states that there must always be a right of appeal in a timely manner as well as "ongoing, automatic, mandatory and regular reviews of status." The hearing authority should not be influenced by any external instruction at all. A balance is required between avoiding delays in necessary admission/treatment, reviewing as soon as possible, preventing harm, and recognising rights to mental health care as well as to refuse treatment. [1]

International legal agreements which can have a bearing on mental health tribunals include the Convention on the Rights of Persons with Disabilities (Article 13 Access to justice), the Universal Declaration of Human Rights or regional human rights conventions such as Article 5(4) (liberty and security of person) and Article 6 of the European Convention on Human Rights (right to a fair trial). [2] However, tribunals are not necessarily legally enabled to deal with humans rights claims. In particular, claims for rights to mental health care and support still generally remain outside their remit, though they can sometimes make non-binding recommendations regarding care plans or supervisory arrangements. [3]

The Principles for the Protection of Persons with Mental Illness ('MI Principles'), adopted by the United Nations General Assembly in 1991, has some basic standards concerning the need for a legal hearing for patients who are detained or treated against their will or whose capacity to make decisions is questioned. Principle 17 (Review body) includes 7 points. Point 1 states: "The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law. It shall, in formulating its decisions, have the assistance of one or more qualified and independent mental health practitioners and take their advice into account." The final point states: "A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to, or be retained in, a mental health facility." [4]

Decision-making

Evidence suggests that despite their multidisciplinary nature, tribunals are significantly influenced by the medical domain through the use of medical discourse and respect for medical expertise. Further, medical jargon can as barrier to patient autonomy as it can be difficult for individuals to express arguments in medical language. Concerns have been raised about the lack of scrutiny of medical evidence in Australia; carers in Scotland have criticised a "hierarchy of opinion" mirroring decision making in medical settings; and forensic patients in Canada commented on the influence of the treating teams and particularly psychiatrist in decision making. [5] : 509 

Experiences of individuals

Individuals involved in the tribunal process describe feelings of powerlessness and complain about the limited scope of tribunals that prevent them discussing their experience of treatment. [5] : 509  Individuals may feel intimidated by the number of people present at the tribunal particularly if their friends and family members in attendance.: 510 

Process

There have been issues in Ireland with of psychiatrists defying tribunals are readmitting patients after a tribunal revoked an order. Concerns regarding inaccurate and out-of-date medical reports have been raised in Canada. [5] : 510  Risk is a component of decision making of tribunals but risk estimates are difficult. Individuals in New Zealand report disagreeing with risk assessments and felt that risk was exaggerated. [5] : 511 

By region

United Kingdom

England & Wales

The Mental Health Tribunal in England is now technically known as the First-tier Tribunal (Mental Health) but in practice is often called the Mental Health Tribunal. The First-tier Tribunal, created by the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) in 2008, is subdivided into chambers: Mental Health Tribunals come within the Health, Education and Social Care Chamber.

The Mental Health Review Tribunal for Wales was created by the Mental Health Act 1983 and has separate, but similar, procedural rules. John Geoffrey Jones, QC served as its chairman from 1996 to 1999. [6]

A new Upper Tribunal was also created by the TCEA 2007. It hears appeals (and sometimes judicial reviews) relating to decisions of the First-tier Tribunal and MHRT for Wales. Appeals from the Upper Tribunal are heard by the Court of Appeal.

A tribunal panel has three members: the legal, medical and specialist lay member. Some patients held in the mental health system after facing criminal charges are termed 'restricted' patients and are subject to additional controls via the Secretary of State for Justice's Mental Health Casework Section, but are still reviewed by the Mental Health Tribunal (often led by a Circuit Judge). Three patients in the early 2010s were allowed to have their hearings in public, with the media in attendance.

Scotland

The Mental Health Tribunal for Scotland was created on 5 October 2005 by virtue of section 21 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

Northern Ireland

The Mental Health Review Tribunal for Northern Ireland was set up under the Mental Health (Northern Ireland) Order 1986. Following the commencement of parts of the Mental Capacity Act (Northern Ireland) 2016, it was renamed as simply the Review Tribunal. It deals with cases of detention under the 1986 Order and of deprivation of liberty under the 2016 Act.

Ireland

Mental Health Tribunals in Ireland are administered by the Mental Health Tribunals Division of the Mental Health Commission. The related law is the Mental Health Act 2001. The Tribunal panel consists of a psychiatrist, a lawyer (either a solicitor or a barrister) and a lay member.

Other European countries

In many other jurisdictions, where mental health reviews are stipulated they tend to be carried out by a judge rather than by specialist tribunals. [7] Turkey does not yet have a single coherent mental health law and there is no established system of review or appeal of detentions. [8]

Australia

As it has a federal system of government, the tribunals vary by state in Australia. Examples include the Mental Health Review Tribunal of New South Wales and the Mental Health Review Tribunal (NT) (Northern Territories).

New Zealand

In New Zealand there is a right to apply for a review in a family court prior to applying for a Mental Health Review Tribunal. Rarely a hearing at the High Court is possible. The related legislation is the Mental Health (Compulsory Assessment & Treatment) Act 1992 (and Amendment Act 1999 of the same name).

Canada

As Canada has a federal system of government, Mental Health Review Boards are specific to each province or territory in Canada. For example, British Columbia's operates under its Mental Health Act. Ontario has instead a Consent and Capacity Board which operates under the Mental Health Act as well as the Health Care Consent Act , the Substitute Decisions Act and other legislation. The tribunals are also subject to the constitutional rights of Section 7 of the Canadian Charter of Rights and Freedoms. Appeals may rarely reach the Supreme Court of Canada. In addition, each province and territory has a separate Review Board (Criminal Code), established under the Criminal Code, which adjudicates mentally disordered offenders found unfit to stand trial or not criminally responsible by reason of mental disorder.

Republic of South Africa

South Africa has Mental Health Review Boards in each province, as mandated by the country's Mental Health Care Act 2002. Although the Act has been noted for improving aspects of the mental health system, the review boards "contend with limited resources, administrative challenges and limited political support." [9]

Japan

Japan has regional Psychiatric Review Boards, but their independence is questioned. The members are appointed by the governor of each region, who is the same person who orders involuntary detentions. Half or over half of each panel is made up of psychiatrists, who are often owners of the hospitals, and only one legal member. Furthermore, there is no right of appeal to a higher judicial court or to legal representation. [10]

Other

The United States uses a purely judicial model, rather than mental health tribunals ('mental health boards' in the US are regional government groups that monitor or advise on policy etc.). Civil commitment hearings are generally held before a judge, and operate under the laws of that state.

India has traditionally had no oversight body, even since the 1987 Mental Health Act. However a Draft Mental Health Care Bill (2012) looks to set up a national Mental Health Review Commission and state Mental Health Review Boards. [11]

Mental health in China has traditionally had no oversight body or national mental health law. The Mental Health Care Act 2012 creates some rights for detained patients to request a second opinion from another state psychiatrist and then an independent psychiatrist; however there is no right to a legal hearing and no guarantee of legal representation. [12]

See also

Related Research Articles

Involuntary commitment, civil commitment, or involuntary hospitalization/hospitalisation is a legal process through which an individual who is deemed by a qualified agent to have symptoms of severe mental disorder is detained in a psychiatric hospital (inpatient) where they can be treated involuntarily. This treatment may involve the administration of psychoactive drugs, including involuntary administration. In many jurisdictions, people diagnosed with mental health disorders can also be forced to undergo treatment while in the community; this is sometimes referred to as outpatient commitment and shares legal processes with commitment.

Outpatient commitment—also called assisted outpatient treatment (AOT) or community treatment orders (CTO)—refers to a civil court procedure wherein a legal process orders an individual diagnosed with a severe mental disorder to adhere to an outpatient treatment plan designed to prevent further deterioration or recurrence that is harmful to themselves or others.

The Lanterman–Petris–Short (LPS) Act regulates involuntary civil commitment to a mental health institution in the state of California. The act set the precedent for modern mental health commitment procedures in the United States. The bipartisan bill was co-authored by California State Assemblyman Frank D. Lanterman (R) and California State Senators Nicholas C. Petris (D) and Alan Short (D), and signed into law in 1967 by Governor Ronald Reagan. The Act went into full effect on July 1, 1972. It cited seven articles of intent:

<span class="mw-page-title-main">Mental Health Act 1983</span> Law in England and Wales

The Mental Health Act 1983 is an Act of the Parliament of the United Kingdom. It covers the reception, care and treatment of mentally disordered people, the management of their property and other related matters, forming part of the mental health law for the people in England and Wales. In particular, it provides the legislation by which people diagnosed with a mental disorder can be detained in a hospital or police custody and have their disorder assessed or treated against their wishes, informally known as "sectioning". Its use is reviewed and regulated by the Care Quality Commission. The Act was significantly amended by the Mental Health Act 2007. A white paper proposing changes to the act was published in 2021 following an independent review of the act by Simon Wessely.

In England, the First-tier Tribunal , more commonly known as the Mental Health Tribunal, is an independent quasi-judicial body established to safeguard the rights of persons subject to the Mental Health Act 1983. It provides for consideration of appeals against the medical detention or forced treatment of a person who was deemed to be suffering from a mental disorder that was associated with a risk to the health or safety of that person or others.

Involuntary treatment refers to medical treatment undertaken without the consent of the person being treated. Involuntary treatment is permitted by law in some countries when overseen by the judiciary through court orders; other countries defer directly to the medical opinions of doctors.

The Mental Health Act is an Ontario law that regulates the administration of mental health care in the province. The main purpose of the legislation is to regulate the involuntary admission of people into a psychiatric hospital. Since the changes brought about in 2000 under Bill 68, the Act allows for a community treatment order by the attending physician. This order is intended to provide comprehensive treatment outside of a psychiatric facility.

<span class="mw-page-title-main">Mental Health Review Tribunal of New South Wales</span>

The Mental Health Review Tribunal of New South Wales is a specialist tribunal dealing with mental health issues in New South Wales, a state of Australia. It has exclusive jurisdiction in terms of most mental health issues, although it may share jurisdiction on some issue with other courts, such as the Supreme Court of New South Wales. The tribunal came into existence on 3 September 1990.

The Mental Health Review Tribunal is a specialist tribunal established in the Northern Territory of Australia, a territory of Australia which has jurisdiction to deal with mental health issues within its boundaries. It has exclusive jurisdiction in terms of most mental health issues, although it may share jurisdiction on some issue with other courts, such as the Supreme Court of the Northern Territory. The tribunal came into existence in 1998 and it is located on Level 3, 9–11 Cavenagh Street, Darwin.

The Mental Health Act Commission was an NHS special health authority that provided a safeguard for people detained in hospital under the powers of the Mental Health Act 1983 in England and Wales. Mental health care is the only part of health care where patients can be treated under compulsion, and necessarily there are very clear legal requirements on hospitals and the other services involved - primarily local authority social services. The Commission was abolished on 31 March 2009.

Rogers v. Okin was a landmark case in which the United States Court of Appeals for the First Circuit considered whether a person diagnosed with mental illness committed to a state psychiatric facility and assumed to be competent, has the right to make treatment decisions in non-emergency conditions.

<span class="mw-page-title-main">Mental Health (Care and Treatment) (Scotland) Act 2003</span> United Kingdom legislation

The Mental Health (Scotland) Act 2003, which came into effect on 5 October 2005, is an Act of the Scottish Parliament that enables medical professionals to legally detain and treat people against their will on the grounds of mental disorders, with the Mental Health Tribunal for Scotland and the Mental Welfare Commission for Scotland providing safeguards against mistreatment.

The role of approved mental health professional (AMHP) in the United Kingdom was created in the 2007 amendment of the Mental Health Act 1983 to replace the role of approved social worker (ASW). The role is broadly similar to the role of the approved social worker but is distinguished in no longer being the exclusive preserve of social workers. It can be undertaken by other professionals including registered mental health or learning disability nurses, occupational therapists and chartered psychologists after completing appropriate post-qualifying masters level training at level 7 NQF and being approved by a local authority for a period of up to five years, subject to re-warranting. The role of the AMHP is to coordinate the assessment of individuals who are being considered for detention under the Mental Health Act 1983. The reason why some specialist mental health professionals are eligible to undertake this role is broadly to avoid excessive medicalisation of the assessment and treatment for individuals living with a mental disorder, as defined by section 1 of the Mental Health Act 1983. It is the role of the AMHP to decide, founded on the medical recommendations of doctors, whether a person should be detained under the Mental Health Act 1983.

<i>Starson v Swayze</i> Supreme Court of Canada case

Starson v Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 was an important case at the Supreme Court of Canada that considered the legal requirements for determining if a person is capable of making decisions regarding their medical treatment.

The Mental Health Act 2001 is an Act of the Irish Parliament, the Oireachtas, which sets out the legal procedures for admissions and treatment in approved centres. It aims to protect the rights of everyone using the mental health services. It aims to ensure the patient's best interest is the most important aspect of mental health. The Act says that the patient has the right to receive good quality mental health care, and mental health services should be properly run and regulated. Under the act, mental health workers are obliged to ensure the patient is treated in a way that respects their rights. The Mental Health Act 2001 was enacted by the Oireachtas of Ireland on 8 July 2001. Most of the important provisions came into force on 1 November 2006. Some less important sections came into force in 2002.

The following outline is provided as an overview of and topical guide to psychiatry:

<span class="mw-page-title-main">Mental health in Russia</span>

Mental health in Russia is covered by a law, known under its official name—the Law of the Russian Federation "On Psychiatric Care and Guarantees of Citizens' Rights during Its Provision", which is the basic legal act that regulates psychiatric care in the Russian Federation and applies not only to persons with mental disorders but all citizens. A notable exception of this rule is those vested with parliamentary or judicial immunity. Providing psychiatric care is regulated by a special law regarding guarantees of citizens' rights.

AH vs West London Mental Health Trust was a landmark case in England, which established a legal precedent in 2011 when Albert Laszlo Haines (AH), a patient in Broadmoor Hospital, a high security psychiatric hospital, was able to exercise a right to a fully open a public mental health review tribunal to hear his appeal for release. The case and the legal principles it affirmed have been described as opening up the secret world of tribunals and National Health Service secure units, and as having substantial ramifications for mental health professionals and solicitors, though how frequently patients will be willing or able to exercise the right is not yet clear.

Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital (inpatient) or in the community (outpatient).

<span class="mw-page-title-main">Independent mental health advocacy</span> Mental health advocacy

Independent mental health advocacy, IMHA, is advocacy for someone being treated, possibly involuntarily, for a mental disorder provided by someone not involved in the treatment. IMHA can help a service user understand and exercise their rights and ensure their views and preferences are expressed. Advocacy seeks to address unequal power relations between mental health professionals and those using their services. Those who provide such advocacy are called Independent mental health advocates, IMHA.

References

  1. 1 2 WHO Resource Book on Mental Health, Human Rights and Legislation Archived 25 October 2013 at the Wayback Machine World Health Organization, 2005. Chapters 8 & 13
  2. ↑ Sawhney, Indermeet; Zia, Asif; Gates, Bob (2017). "Patients with learning disabilities who lack capacity detained under the Mental Health Act in the UK: A case study". British Journal of Learning Disabilities. 45 (2): 138–141. doi:10.1111/bld.12185. ISSN   1468-3156. S2CID   79378017.
  3. ↑ Jurisdiction of Mental Health Tribunals to Provide Positive Remedies: Application, Challenges, and Prospects Archived 12 April 2013 at the Wayback Machine Joaquin Zuckerberg (2011) 57:2 McGill Law Journal 267
  4. ↑ Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (On WHO website). United Nations, 1991. Retrieved July 2013.
  5. 1 2 3 4 Macgregor, Aisha; Brown, Michael; Stavert, Jill (July 2019). "Are mental health tribunals operating in accordance with international human rights standards? A systematic review of the international literature". Health & Social Care in the Community. 27 (4): e494–e513. doi: 10.1111/hsc.12749 . ISSN   0966-0410. PMID   30993806. S2CID   119502303.
  6. ↑ Jones, His Honour (John) Geoffrey. Who's Who. Oxford University Press. 1 December 2007. doi:10.1093/ww/9780199540884.013.U22389. ISBN   978-0-19-954089-1 . Retrieved 19 September 2022. Chm., Mental Health Rev. Tribunal for Wales, 1996-99
  7. ↑ Kallert Thomas W., Rymaszewska Joanna, Torres-González Francisco (2007). "Differences of Legal Regulations Concerning Involuntary Psychiatric Hospitalization in Twelve European Countries: Implications for Clinical Practice". International Journal of Forensic Mental Health. 6 (2): 197–207. doi:10.1080/14999013.2007.10471263. PMC   3332905 .{{cite journal}}: CS1 maint: multiple names: authors list (link)
  8. ↑ Arikan R, Appelbaum PS, Sercan M, Turkcan S, Satmis N, Polat A (2007). "Civil commitment in Turkey: reflections on a bill drafted by psychiatrists". Int J Law Psychiatry. 30 (1): 29–35. doi:10.1016/j.ijlp.2006.01.001. PMID   16844221.{{cite journal}}: CS1 maint: multiple names: authors list (link)
  9. ↑ The Mental Health Care Act No 17 – South Africa. Trials and triumphs: 2002–2012 Ramlall, S. African Journal of Psychiatry (Johannesbg). 2012 Nov;15(6):407–10.
  10. ↑ The parallel Report to CAT Committee in 2013 6 April 2013.
  11. ↑ Mental Health Care Bill (2012) Aakarsh Kamra & Garima Tiwari, Lex-Warrier Law Journal, November 2012
  12. ↑ China: End Arbitrary Detention in Mental Health Institutions Human Rights Watch, 3 May 2013

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