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Consultant psychiatrists' knowledge of their role as representatives of the responsible authority at mental health review tribunals

  • Srikanth Nimmagadda (a1) and Christopher N. Jones (a2)
Abstract
Aims and Method

A postal survey of consultant psychiatrists was carried out to assess their level of knowledge about the role of the person representing the responsible authority at a mental health review tribunal (MHRT).

Results

Consultants generally had a low level of knowledge and understanding of their responsibilities as representatives, which increased since appointment and with experience of MHRTs. They thought it appropriate that they continue representing the detaining authority in most cases, but recognised training needs.

Clinical Implications

Postgraduate training and continuing professional development should address the competencies required for the representative role. Trusts should review their practice in respect of legal representation at MHRTs.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution (CC-BY) license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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Bartlett, P. & Sandland, R. (2003) Mental Health Law: Policy and Practice (2nd edn). Oxford University Press.
Bhatti, V., Kenney-Herbert, J., Cope, R., et al (1999) Knowledge of current mental health legislation among medical practitioners approved under section 12(2) of the Mental Health Act 1983 in the West Midlands. Health Trends, 30, 106108.
Coates, J. (2004) Mental Health Review Tribunals and legal representation – equality of arms? [letter] Psychiatric Bulletin, 28, 426.
Eldergill, A. (1997) Mental Health Review Tribunals: Law and Practice. Sweet & Maxwell.
General Medical Council (2006). Good Medical Practice. GMC.
Gostin, L. & Fennell, P. (1992) Mental Health Tribunal Procedure. Longman.
Humphreys, M. (1999) Psychiatrists' knowledge of mental health legislation. Journal of Mental Health Law, October, 150153.
Lodge, G. (2005) Making your case to the Mental Health Review Tribunal in England and Wales. Psychiatric Bulletin, 29, 149151.
Naeem, A., Gupta, B., Rutherford, J., et al (2007) The simulated mental health review tribunal – a valuable training aid for senior house officers? Psychiatric Bulletin, 31, 2932.
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Richardson, G. & Machin, D. (2000) Doctors on tribunals. A confusion of roles. British Journal of Psychiatry, 176, 110115.
Royal College of Psychiatrists (1998) Higher Psychiatric Training Handbook (OP43). Royal College of Psychiatrists.
Wood, J. (1998) What I expect of my psychiatrist: the Mental Health Review Tribunal. Advances in Psychiatric Treatment, 4, 197201.
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BJPsych Bulletin
  • ISSN: 0955-6036
  • EISSN: 1472-1473
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Consultant psychiatrists' knowledge of their role as representatives of the responsible authority at mental health review tribunals

  • Srikanth Nimmagadda (a1) and Christopher N. Jones (a2)
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eLetters

Representational role of RMO at MHRT hearings

Amar Shah, ST4 Forensic Psychiatry
27 October 2008

Nimmagadda and Jones are to be commended for highlighting an area of uncertainty within the Mental Health Review Tribunal (MHRT) procedure.

The Mental Health Review Tribunal Rules (1983) (as amended) set out the procedures to be followed by the Regional Chairs, the MHRT administrative staff and the members of the Tribunal hearing any particular case. Rule 10 (1) allows for any party to be represented,which includes the responsible authority. As stated in Rule 22 (4), a doctor acting as representative of the detaining authority acquires the power to cross examine and call witnesses.

The role of the RMO as representative for the detaining authority hasbeen subject to judicial review in R (on the application of Mersey Care NHS Trust) v Mental Health Review Tribunal (D - interested party) [2003]EWHC 1182 Admin. In this case, the detaining authority contended that the tribunal decision was unlawful for three reasons, one of which was that there was procedural unfairness. The contention was that the RMO had not been allowed to cross-examine the hospital's social worker, or sum up the hospital's case. Sullivan J rejected all three contentions and the application failed. In his conclusion, the Judge stated that it was "readily understandable that for 'friendly-fire' reasons" the Tribunal declined the RMO's request to question a fellow employee at thehospital. It was also clarified that the Rules do not entitle the RMO to make any final statement (the Rules allow the applicant, and where he is not the applicant, the patient, to address the Tribunal after all the evidence has been given). The Judge concluded that "if there is a lessonto be learnt from this unhappy sequence of events, it is that if an RMO isindeed representing a hospital and not merely giving his or her own evidence, then that should be made clear to the Tribunal at the outset".

Following this judgment, guidance was issued by the Regional Chairmento Tribunal panels in January 2005. The Tribunal panels were urged to enquire, at the start of each hearing, whether the RMO was representing the Authority or not. However, anecdotal evidence suggests that Tribunal panels vary considerably in their adherence to this advice. Many may assume that the RMO is representing the responsible authority. RMO's themselves seem to have taken on this extra burden, whether conscious or unconscious of the extra responsibilities entailed. It is noteworthy that the 2005 advice on this subject was absent from the procedural manual recently issued to Tribunal members. Indeed, MHRT guidance for healthcare professionals states that "The Tribunal will expect to see the Responsible Medical Officer (RMO) or a deputy who knows the patient, and in the opinion of the RMO, has sufficient knowledge and experience of the patient and psychiatry to represent the responsible authority" - a clear blurring of the distinction between the RMO who should ordinarily be acting as a witness on behalf of the detaining authority, and the representational role.

Responsible authorities should give greater consideration as to appropriate representation at MHRT hearings. If content for psychiatrists to fulfil this role, appropriate training needs to be available. RMOs should consider carefully whether they are willing to undertake the representational role, and should make their decision explicit at the start of the hearing, as stated in Rule 10 (2).

REFERENCES

1. Nimmigadda & Jones (2008) Consultant psychiatrists' knowledge of their role as representatives of the responsible authority atmental health review tribunals

2. Mental Health Review Tribunal Rules (1983)

3. Mental Health Review Tribunals - Information for Healthcare and Social Care professionals. (http://www.mhrt.org.uk/FormsGuidance/healthcareSocialCare.htm)

Declaration of Interest - None
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Conflict of interest: None Declared

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DOCTORS AT TRIBUNALS

FAREED BASHIR, CONSULTANT PSYCHIATRIST
27 October 2008

Dr’s Nimmagadda, S and Jones, C identified a lack of legal knowledge of RMO’s around procedures relating to the conduct of the MHRT. The premise that RMO’s ought to be representing the responsible authority at MHRT’s leads the authors to conclude that “it is a matter of considerable concern that some consultant psychiatrists do not know the law that relates to their duties and powers in relation to MHRT’s”.

Unfortunately, the authors are mistaken in the premise. The questionof the status of the RMO appearing before the tribunal became controversial to the point that the regional chairs of the MHRT issued thefollowing guidelines based on the old MHRT rules (Personal communication following issuance of advice in 2006/7 by MHRT regional chairmen copied toauthor by John Wright, Chair of the Northern Region of the MHRT). I am notaware of any provision in the new rules coming into force on 3rd November 2008 which alters the position ( The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008). The critical issue was whether the RMO was witness, representative of the responsible authority, or both? (Personal communication following issuanceof advice in 2006/7 by MHRT regional chairmen copied to author by John Wright, Chair of the Northern Region of the MHRT)

Principles

1The RMO does not have an automatic right to represent the Authority

2The RMO is entitled to represent the Authority under the provisionsof rule 10 of the Mental Health Review Tribunal Rules 1983. This is the only means by with the RMO can acquire full rights of representation

3The RMO may be permitted by the tribunal to take such part in the proceedings as the tribunal thinks proper pursuant to rule 22(4). This amounts to a form of “quasi-representation” the circumstances and parameters being set by the tribunal

4Rule 22(1) provides:

“the tribunal may conduct the hearing in such manner as it considers most suitable bearing in mind the health and interest of the patient and it shall, so far as appears to it appropriate, seek to avoid formality in its proceedings”.

The authors make no mention of the potential harm to the therapeutic alliance between doctor and patient by the RMO adopting an adversarial, quasi-legal role at MHRTs.

Lastly, there are also financial risks in representing the responsible authority. Under rule 10 of the new rules the tribunal may make a wasted costs order, which would be liable upon the individual representing the responsible authority. This could occur due to lapses leading to adjourned hearings for example (The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008)

If members are faced with complex high-risk tribunals where representation under the old rule 10 is necessary my advice is to instructa competent and skilled lawyer.
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Conflict of interest: None Declared

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Tony S Zigmond, Consultant psychiatrist
13 October 2008

Nimmagadda and Jones’s article on Consultant Psychiatrists at mental health review tribunals interesting. Of course all Responsible Medical Officers should be aware that they may choose to represent the detaining authority at MHRT and understand the significance of this. The article appears to suggest that RMOs automatically represent the detaining authority, which is incorrect. Further they state that the RMO has “an important role in testing the strength of argument and evidence” in favour of discharge.

I cannot understand why any psychiatrist should wish to represent the

authority (there is no requirement to do so). It is the Tribunals job to test the evidence. It is far better to for us to acknowledge we are but humble clinicians. We should present clinical information clearly and coherently and let the Tribunal decide if the patient continues to meet the criteria for detention. Lawyers argue, that’s what they are paid to do, we present the facts, the Tribunal decides about compulsion.

Tony ZigmondNewsam CentreSeacroft HospitalLeeds

Declaration of interest: none
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