Should Judges sit alone on Mental Health Tribunals?
Recently proposed changes to the tribunal system could spell the end of the current three-member Mental Health Tribunal panel as we know it.
At present, a Mental Health Tribunal panel is comprised of a legal member, a medical member and a lay member, who is an experienced professional in the field of health or social care.
However, in the consultation (Transforming our justice system: summary of reforms and consultation, September 2016) the Ministry of Justice proposes to amend legislation to provide that the First-tier Tribunal will consist of a single member unless otherwise determined by the Senior President of Tribunals (SPT).
The aim is to move away from the current approach of using non-legal members for all cases, and only to have such members where “their specialist expertise and knowledge is relevant or required”.
An impact assessment carried out identifies several potential benefits to the proposal, including:
- Enabling hearings to be listed more quickly, as it will be easier to find availability for a single member;
- Increasing the speed of hearings, as there will not be any discussion required to reach a decision; and
- A huge reduction in costs, as £10m per year could be saved if the number of non-legal members sitting on Tribunals could be reduced by half.
However, the impact assessment also highlights some potentially negative effects of the new system. For example:
- The costs of training judges may increase, as they will need to have knowledge of matters outside of their area of expertise;
- Decisions may take longer due to the lack of expertise on the panel;
- Some cases may actually require more non-legal members on the panel; and
- There may be an increase in appeals to the Upper Tribunal.
Although the single-member panel system has been tested in the Immigration and Asylum Tribunal, Special Educational Needs and Disability Tribunal and in many Employment Tribunal cases without (apparently) affecting outcomes, it remains to be seen if it can be effectively implemented for Mental Health Tribunal.
Put simply, it is hard to think of any Mental Health Tribunal case which in which the expertise of the medical member would not be “relevant or required” and in many cases it will be crucial to reaching a fair and just decision. This is particularly so given that first matter to be established by every Mental Health Tribunal is whether or not the patient suffers from a mental disorder. The medical member also carries out an important role in meeting with the client (if indicated or requested) for a pre-hearing examination and feeding this back to the other panel members. Perhaps most importantly, the medical member may be the only doctor to see the patient who is independent of the detaining authority.
The lay member also has a beneficial role on the panel as they are able to bring expertise in relation to social care and their questions and input in relation to the support available to the patient on discharge can be vital in understanding how risks may potentially be managed in the community.
On a practical level, it is currently unclear as to who would make the request for the non-legal members to be on the panel, who would need to approve it and whether it would be subject to any costs or other limitations. If approval was required, then it would inevitably require a pre-judgment of the client’s case and this would be at best undesirable and at worst, unjust. The change is also likely to lead to additional adjournments and postponements as it becomes apparent that additional expertise is needed on the panel and this of course will impact on the patient’s right to a speedy hearing.
Given that Mental Health Tribunals deal with some of the most vulnerable people in our society and are called upon to consider a patient’s fundamental right to liberty, is it really fair to sacrifice knowledge and expertise in favour of saving money?
For further information and to find out how to have your say on the consultation read transforming our justice system.