Changing The Face Of Mental Health

The Mental Health Tribunal for Scotland (MHTS) was established in accordance with the Mental Health (Care and Treatment) (Scotland) Act 2003.
It is the first Tribunal of its type in the world, in that it has taken over the jurisdiction of the court service and actually hands down orders in relation to the compulsory treatment of patients.

The creation of the Tribunal marks a fundamental change in the way decisions will be made about long term compulsory care and treatment of people in Scotland who have a mental health disorder.
The MHTS was formally launched on October 5 2005, following intensive consultation with healthcare professionals, the legal profession, service users and their carers.

Former advocate and senior psychiatric social worker Eileen Davie was appointed to preside over the service.

The service replaces the Sheriff Court as a means of hearing decisions on the care and treatment of people suffering from mental health problems.

The MHTS aims to:

– Provide an impartial service to everyone
– Maintain confidentiality at all times, but also to have frank and open discussions
– Provide the right to representation for everyone
– Listen to and consider the opinions expressed by all those involved

The MHTS has the power to decide upon, revoke and review both permanent and temporary care orders, including:

– Compulsory treatment orders
– Short term detention certificates
– Compulsion orders
– Compulsion and restriction orders
– Interim orders
– Variation to orders
– Referrals from the Mental Welfare Commission and Scottish ministers{mospagebreak}

The new service differs from the old system in that hearings concerning decisions on the long-term compulsory care and treatment of people with a mental disorder will no longer be heard in courts – which can prove intimidating and impersonal – but instead in hospitals and community settings across Scotland.

In most cases, hearings will be heard in private, unless a special request is made to have a case heard in public, in which case the Tribunal will decide if it is appropriate to do so.
The most important aspect of the new service is that it allows patients and their carers to be involved in the process of determining and providing care.

There is an enhanced right for individuals’ support from a nominated representative, known as a Named Person. An advocacy worker can also be present to speak on his or her behalf. These new rights and safeguards were not available prior to the establishment of the MHTS.
Hearings will be heard by a three-person panel, comprising of:

– A legal member (a legally qualified person such as a solicitor, who also chairs the panel)
– A medical member (with relevant qualifications, such as a psychiatrist)
– A general member (with relevant knowledge and experience of mental health, such as a social worker, a nurse or similar) {mospagebreak}

There is currently a pool of around 300 people across Scotland who can be called upon by the MHTS to make up a panel.

The service expects to handle around 4,000 cases each year – approximately 50-100 hearings per week across Scotland.

Hearings are held in a venue local to the patient wherever possible, where they will have the right to be represented and to participate in the proceedings.

Care Appointments Scotland caught up with Eileen Davie, President of the MHTS and discovered that this new body is indeed fortunate to have such a committed and passionate individual at it’s helm.

When asked to highlight the principal changes that will occurr under the new act and the Tribunal service Mrs Davie was quick to make an analogy with another, familiar, piece of legislation.

“There’s a complete shift in perspective under the new act. It’s a little bit like the Children’s Act in that prior to 1995 parents had all the rights and a child’s care and future depended on how the parents managed those rights.

“This new Mental Health Act means that before you can do anything in relation to compulsion either in hospital or the community, the doctors and the MHOs involved have to meet certain tests – that is the principle remit of the tribunal, and as such is much narrower than many people believe. These tests are designed in such a way that it gives the patient a range of rights and principles that must be adhered to.

“Before you can ask to detain someone in hospital you must be able to demonstrate that there is a benefit to the patient in so doing and a range of conditions must be met. The core of our responsibility lies in the conditions that are set down and one of the most important of these is the ‘necessity’ condition – it has to be necessary for a patient to be given treatment.”

Since the MHTS’ inception there have been concerns raised within the sector about the amount of time an MHO’s involvement in the Tribunal process takes up. We asked Mrs Davie what the reaction to the Tribunal had been like from practitioners thus far.

“I have been absolutely amazed by the number of hearings we are doing and this has presented a real challenge in terms of the timescale we operate within. The MHOs and the doctors have been fabulous though. We have had our problems, as any new organisation does, and there have been cases where timescales have caused difficulties, but life is real and life is earnest and we have to get on with it.

“Any problems we have encountered have all been operational problems and, as such, problems that are surmountable. We are dealing with a brand new act and convenors working with us are constantly confronted with new and unforeseen challenges.

“But we are trying to communicate with everyone involved in the process of bringing a case before the tribunal and stressing the importance of everyone playing his or her part in as timely a fashion as possible so that a first hearing remains just that – a first, and hopefully, an only hearing. Shaving a day or two off at the beginning of the process means ultimately fewer instances where it is necessary for a second or third hearing and this, in turn, reduces the workload of the MHO.

“I have a lot of sympathy with doctors and MHOs – they were trained at a stage in the development of the Tribunal service when our rules of procedure were not yet properly refined and in place. They, consequently, had to learn all that once they started to work with us and that has obviously been a shock to the system. As I say, I have a great deal of sympathy with them but the message is getting through – if we all work together and get things done early then we won’t have to come back and back and back for further hearings.

“One unsung group of people that I have been very impressed by have been the medical record officers – they have picked up on areas of information that we have all missed and their contribution has been hugely important.”{mospagebreak}

In terms of numbers, it was originally envisaged that there would be a requirement for a pool of 300 medical, legal and general members to make up the 3-person panels involved in the hearings across Scotland. We asked Mrs Davie what stage the recruitment process was at now.

“We started off with more general members than we needed but we were slightly short on psychiatry time. However, we were very fortunate in that psychiatrists tend to retire early and remain active and consequently we came across lots of retired psychiatrists who were able to double up.

“That said, we are at the stage now where we need a comfort blanket. In remote areas especially there often aren’t so many doctors or MHOs available. In truth, we can never have too many of each type of panel member – all that happens is that they would have slightly fewer hearings to do each.”

While there is a general awareness of the Tribunal across the wider care sector in Scotland, MHTS is proactively attempting to raise awareness of its structure and processes within the workforce. To this end they have presented to ADSW and are publishing a communications plan before the end of March, along with their first quarter statistics. The hope is that publication of the statistics will help dismiss some of the myths that arise surrounding new initiatives such as this. Tales of hearings lasting six hours are the exception and not the rule. The average is something in the region of one and a half hours. (Look out for upcoming case studies of practitioners telling the story of their involvement with the MHTS in subsequent issues of Care Appointments Scotland.)
Eileen Davie and her team have taken on a huge task and are working with an enormously important piece of legislation in the new Mental Health Act. It is natural that a new body such as MHTS may be viewed by some as just another multi-layered bureaucratic monolith, but Davie and co are aware of this and are ready and willing to educate and inform the sector that by working together, and in a timely and efficient manner, there will be benefits for of all who come in contact with this new initiative, not least the patients themselves.