Advocacy : Case Preparation for Mental Health Tribunals

1. Advocacy : Case Preparation for Mental Health Tribunals Tam Gill 2012

2. Case Preparation • ‘To Kill a Mockingbird’ by Harper Lee: The advice of Atticus ‘Never, never, never, on cross-examination ask a witness a question you don't already know the answer to’, was a tenet I absorbed with my baby-food. ‘Do it and you'll often get an answer you don't want, an answer that might wreck your case’.

3. The only way you will be in the privileged position of knowing the answer to every question you will ask is by way of careful, thorough and diligent preparation. • The Tribunal is, in the main, going to concern itself with whether or not the statutory criteria are met. You must know these. They are set out in section 72 of the Mental Health Act and can be summarised as:

4. Does the patient suffer from a mental disorder of a nature or of a degree warranting his detention in hospital for treatment, that treatment being necessary for his own health, his own safety or for the protection of other people.

5. It is also important, as well as knowing the statute, to be aware of the case law surrounding the criteria. For example, on the issue of ‘detention being necessary’, the case of Reid v Secretary of State for Scotland [1998] UKHL 43 states that the standard is ‘necessity, not desirability’. • The MHT is inquisitorial, so you need to deal with the evidence accordingly

6. keep the statutory criteria in your mind at all times. • where is the supporting evidence? • where do the weaknesses in your case fall? • The onus is on the Tribunal not to accept historical ‘hearsay’ evidence; or, at least, to give little weight to it – see: R (DJ) v MHRT; R (AN) v MHRT (2005) EWHC 587 (Admin)

7. MENTAL DISORDER • P’s insight into diagnosis • Need for medication / compliance? • Compliance with CMHT meetings • Exacerbating factors - Drugs, alcohol, stressors

8. NATURE • How well does P stay between admissions? • Probability of relapse / speed of relapse? • Compliance with CMHT?

9. DEGREE • Why has degree changed? – drugs, alcohol, stress

10. OWN HEALTH • Effect of non-compliance with meds on health? • Any physical illnesses made worse by deterioration in mental health?

11. OWN SAFETY • Risks to self – suicide, Deliberate self harm, vulnerable / at risk for others?

12. PROTECTION OF OTHERS • Child protection issues? • Any outstanding criminal matters?

13. Not an exhaustive list of questions, simply pointers as to issues to bear in mind

14. Initial Instructions • The initial instructions are essential. • have in mind the statutory criteria. • Always look at section papers during your preparation • You do not need to have the Statutory reports in order to begin to take P’s instructions in relation to his Tribunal hearing.

15. does he feel he has a mental disorder? • how would he describe it • how does it affect him • how does he keep himself well • what makes him feel better / worse;

16. does he take medication & what are his views on taking medication? • Does it help him or not? If he is suffering side-effects, has he been on another medication that hasn’t given his side-effects (i.e. would he be more compliant with a different medication?)

17. The answers to these questions will form the basis certainly of P’s evidence in the Tribunal hearing and will also go a long way towards assisting you in preparing your case before the Tribunal. For example:

18. RC’s Evidence • Legal rep: ‘Doctor, have you discussed alternatives to Olanzapine with P? • RC: Olanzapine is the first line of treatment for schizophrenia and is what P has been prescribed in the past. • Legal rep: ‘Have you discussed this treatment with P?’ • RC: ‘P has said he won’t take Olanzapine medication, so I plan to keep him here until he gains enough insight to understand the need for medication’ • LR: What reasons has P given for not wanting to take Olanzapine? • RC: He is simply refusing to take it, he is clearly insightless.

19. P’s Evidence • LR: Why are you refusing to take Olanzapine? • P: Olanzapine makes me fat, I’m only 30 for goodness sake. I’d rather take something like Risperidone. I’ve done some reading and it says it doesn’t give you weight gain and it is an anti-psychotic drug, so it’ll help with my voices. • LR: So, if the RC were to prescribe another anti-psychotic, you would be willing to try it? • P: Yes, I just don’t want to end up weighing 20 stone and not able to play football with my kid.

20. pre-empt lines of questioning • peruse the in-patient medical records • is there is a note made of P’s requests – does he ask for different medication? • look at his community medical records and elicit the points that will support your case or that are negative points you will need to address • Preparation is never wasted!!

21. Nature • what type of an illness is it? • How does it change? • Is it chronic, acute, relapsing / remitting, unchanging, made worse by drugs? • How quickly would he deteriorate if not on medication?

22. R v Mental Health Review Tribunal for the South Thames Region ex parte Smith [1998] EWHC 832 (Admin) it was held by Popplewell J that: • The word ‘nature’ refers to the particular mental disorder from which the patient suffers, its chronicity, its prognosis and the patient’s previous response to receiving treatment for the disorder • The word degree refers to the current manifestation of the patient’s disorder (see below)

23. CM v Derbyshire NHS Foundation Trust [2011] UKUT 129 (ACC) [12]: • If the nature of a patient’s illness is such that it will relapse in the absence of medication, then whether the nature is such as to make it appropriate for him to be liable to be detained in hospital for medical treatment depends on an assessment of the probability that he will relapse in the near future if he were free in the community and on whether the evidence is that without being detained in hospital he will not take the medication

24. re-iteration of the position in R v London and South West Region Mental Health Review Tribunal ex parte Moyle [1999] MHLR 195.

25. History of Illness • Look at the history of the illness. • How long does P manage between relapses? • What happens when he does relapse – is it quick, or a slow steady decline? • Can it be picked up by the care team when they see him in the community? • Does he need more frequent visits in the community? (is there an Assertive Outreach / Home Treatment Team that could support P through a crisis period and avoid admission to hospital?).

26. Degree • Put simply, ‘how bad is it?’. • What are the symptoms • how are the symptoms controlled. • If there are delusional beliefs, who is at risk from them? i.e. is it a delusion incorporating others [my neighbours / everyone in my street / you keep breaking into my flat and moving things around and I am going to get him for it] • Or is it self-contained [I must change my locks every 10 days as I am sure someone has a key to my door].

27. The evidence will be in the medical records! (both in-patient and out-patient). • Speak to the nursing staff, ask them ‘how does P present from day to day?’ • What symptoms do you see from day to day? Make a careful note of what they say (and what their name is) - this is evidence!

28. You may also want to speak to family members, if P gives his permission for this. • Particularly, speak to the NR / person who is living with P. • What have they seen? • What is their understanding of the situation? • Consider: does your client want this person in the Tribunal room giving evidence on his behalf?

29. Risks • It is important to separate out risks that arise as a result of the mental disorder from ‘criminality’ that should properly be dealt with by way of the criminal justice system. • Recall that R (on the application of LI) v Mental Health review Tribunal [2004] EWHC 51 (Admin) notes that the fact that a patient could pose a risk to the public for reasons unconnected with his mental illness is not relevant to the Tribunal’s Decision.

30. Look at the Risk assessments on the medical file. Compare and contrast with previous risk assessments. • What has changed, and why? • Are the risks accurate (eg: if there is a risk of fire-setting, explore whether this is based in fact or upon a throw-away comment made during a psychotic episode). If there is a risk of assault, determine under what circumstances the assaults have taken place – driven by psychosis, or following provocation on the ward by another acutely unwell patient • This is not to minimise any form of assault; more to understand the nature of the assault and the factors that led to it. These issues all go directly to the level of risk posed by P in real terms under ‘real conditions’. • Don’t forget that a locked PICU ward is one of the most highly-charged environments within the psychiatric care system and is likely to be the most volatile.

31. Own Health • What is P likely to do to himself if he were not detained? • What are the risks? • Would he stop taking his medication and deteriorate further / not get better? Self-neglect?

32. Own Safety • Risk of suicide, risk of self harm, risk of not taking medications and deteriorating. • Self neglect • vulnerability (eg: to exploitation, be it sexual or financial)

33. Protection of Others • Assaults, exploitation of others, stalking, threats to harm others previously made.

34. All the evidence will come from the medical records and from your client by way of P’s instructions on the Statutory reports and the information in the medical records and his own account (and the family, if permitted to speak with them).

35. You, as P’s legal representative, will be the person who knows the case best • You will have read all the information that the Responsible Authority has • You have the advantage of having taken detailed instructions from your client on the reports, medical records (of course mindful of third party disclosures!) • Consider the section papers and carefully note the justification for admitting P – what is alleged to have been going on immediately prior to his admission? Did the NR consent to the admission? • You know the law.

36. The RA will only have their in-patient information and perhaps notes from a few chats with P during Ward Round.

37. The Tribunal will only have the statutory reports, a brief overview of the patient’s most recent medical records and whatever information the Medical Member has elicited during his brief meeting with P before them by way of background information prior to the hearing commencing.

38. You should be going in to the Tribunal room with a relatively clear view of how you intend to elicit the evidence. • Do not go in with a set list of questions (‘a script’) for each witness and refuse to waver from your Game Plan • If the Tribunal is asking the questions you want answered, then do not repeat them! • This will usually serve to demonstrate that you have not been listening to the evidence and will surely irk the Tribunal • Be ready to change your approach – good advocacy is not just about what you do say, but at times, about what you do not say (‘the question too far’). • Do not shy away form the negative points in your case – address them and put them into context:

39. Sample Submission • “In terms of risk to others, P has recently assaulted another patient on the ward, for which, in his evidence, P has expressed his remorse. It is important however to remember that the assault took place in the context of the victim having been actively seeking to provoke P relentlessly for some 3 days prior to the incident, which culminated in the victim tearing up a photo of P’s son, provoking P to punch him twice in the back. This account is in fact corroborated by the Incident Report Form held on the medical file.”

40. You will not know what the Incident report form says unless you look at it during your preparation of the case!

41. Try to speak with the RC, CPN, Social Worker (or the people who will be attending the hearing to give the evidence) to discuss the case. • Attend CPA meetings, and make sure you write to the care team and ask if they will be convening a CPA / s.117 meeting prior to the Tribunal date. • More often than not, professionals will appreciate the Legal Representative taking the time to talk about the case. • There is no place for ‘advocacy by ambush’. Talk through the case, compare views. Discuss concerns.

42. Duty of confidentiality between you and your client. You must use your judgement. • Your Principal Solicitor • Law Society guidance / Helpline • SRA • MHLA

43. If the client has, as in the example above, said he will take Risperidone, and he is happy for you to speak to his RC about this, there is nothing to preclude you from having a discussions with the RC and saying,’ my client instructs me that he would be willing to try Risperidone as he’s quite concerned, with some justification, about the weight gain associated with Olanzapine. Can you please discuss this with P in your next ward round?’

44. So outside the Tribunal room door: • you have a clear idea of the written evidence in this case • your client’s instructions • the care team’s views • you will have an idea of what your Submissions will be • you will have reviewed the law to ensure it is all fresh in your mind.

45. Do not forget that once you leave the Tribunal room, you leave behind you a care team and patient who must continue to work together • It is onerous upon you to not deliberately damage that relationship between patient and care team. • Challenge the evidence, advocate on behalf of the patient, state the law and apply the facts to it. • Remember that you have a responsibility to be civil and polite, and to leave a functioning relationship behind you.

46. Tam Gill • Principal Solicitor - Gledhill Solicitors • 18 July 2012