Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 9

FORUM FOR COMPULSORY MEASURES

1. Under the 1984 Act, the sheriff court is the principal forum which considers applications for long term detention, and appeals against renewals of detention. This is in contrast to England and Wales, where the primary forum is a specialist mental health review tribunal. We have considered both the way the sheriff court operates, and whether it is the best forum for mental health hearings.

Current statutory provisions

2. The Act and regulations contain relatively few formal requirements as to the operation of hearings in mental health cases. In considering an application for long term detention, the sheriff is entitled to 'make such inquiries and hear such persons (including the patient) as he thinks fit'⁵⁸. Should either the nearest relative or the mental health officer (MHO) oppose the application, they must be afforded an opportunity to be heard. A nearest relative who objects is also entitled to call witnesses, although this right is not formally accorded to the patient. The sheriff cannot reject the application (i.e. refuse to detain the patient) without allowing the applicant (normally the mental health officer (MHO)) the right to be heard and to call witnesses.

3. In any application for admission or appeal, the sheriff must give the patient the opportunity to be heard, either in person or by means of a representative⁵⁹. The representative is normally a solicitor, but this is not a requirement of the Act. Notwithstanding this general right to be heard, the applicant can be excluded from the hearing 'where it is established to the satisfaction of the sheriff that it would be prejudicial to the patient's health or treatment if he were present'. If this is done, a curator ad litem (an independent person, usually a lawyer, appointed to represent the patient's interests) may be appointed⁶⁰.

4. If no-one who is entitled to speak wishes to do so, the sheriff is entitled to approve the application without a hearing. This must be done, or a hearing held, within five days of the application being submitted (excluding weekends and court holidays)⁶¹. Once begun, the hearing can be adjourned, and a patient who is already detained under the short term (28 day) provisions can continue to be detained until the hearing is determined⁶².

5. The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, S.I.929, sets out some further requirements. Notice of the hearing is normally given to the patient, but the patient does not receive a copy of the medical recommendations⁶³. There is no minimum length of notice which must be given. Where, as is normally the case, the patient is already in hospital, notice is served on the responsible medical officer (RMO), who should in turn deliver the notice to the patient. If there are reasons to believe that giving of the notice would be prejudicial to the health of the patient, the sheriff can dispense with service of the notice. In such a case, a curator ad litem must be appointed⁶⁴.

6. A curator ad litem may also be appointed in any other case where the sheriff considers it appropriate⁶⁵. This might apply where the person has not been excluded under s113, but the RMO has indicated that it would be prejudicial to the patient's health or treatment if the patient were to be present during the proceedings⁶⁶.

7. Where a person who is the subject of an application indicates to the sheriff that he or she wishes, but does not have, representation, the sheriff may appoint a solicitor to represent the person⁶⁷.

8. Legal Aid is available for mental health hearings, under the Assistance by Way of Representation scheme. Recently, the rules were amended so that this is not means tested, and any person who is subject of an application should now qualify for assistance⁶⁸.

9. Either the patient, the applicant (in most cases, the MHO), or the sheriff, can require that the hearing be held in private⁶⁹. The sheriff may hold the hearing in a hospital or other place, where he or she considers it appropriate⁷⁰.

10. There is judicial authority that the decision by the sheriff in a civil mental health hearing is an exercise of administrative, rather than judicial discretion⁷¹. This means that, apart from the procedural rules outlined above, there are few formal procedures for the conduct of hearings. They are not governed by the normal rules of court.

11. Also, the decision of the sheriff is not subject to appeal, other than by judicial review. There is an exception in relation to appeals by restricted patients. Under the amendments to the Act introduced by the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, both the patient and Scottish Ministers can appeal the sheriff's decision in such a case to the Court of Session.

Sheriff court hearings

How the courts operate

12. Our views as to the ways the sheriff courts operate were informed by a number of sources including research, written and oral evidence, the prior experience of members of the Committee at mental health hearings and other court hearings, and discussions on visits and at consultative events with mental health and legal professionals, service users and carers.

13. Committee members also arranged to be present at a number of s18 hearings in the sheriff court. In addition to observing the proceedings, members of the committee were able to speak to participants about their general experience of such hearings. The visits and experience of Committee members tended to support some of the observations of the research, and the comments of consultees (see below).

14. When we began our work, we were concerned to note that there was virtually no published information regarding the operation of the sheriff courts in mental health hearings; even to the extent of basic information regarding how many applications were refused, and how many people exercised their rights to appeal at the various stages of detention. Following representations by the Committee and the Mental Welfare Commission, the Central Research Unit of the Scottish Executive undertook research into the operation of the sheriff courts in detention cases. This research has been separately published⁷², and a summary of the research findings is contained at Annex 7. We mention here some of the significant findings.

The evidence considered by the court

15. There appears to be a large number of determinations made by sheriffs without evidence being heard from those with significant information or interest in the outcome, or even without such people being present. Oral evidence was heard in 50% of the 522 of cases reviewed in the research. 28% of patients attended court, and 39% were legally represented. In just over half the cases, the patient neither attended court, nor was legally represented. Many patients appear to have felt there was little point in attending, or in opposing the hearing. Patients gave evidence in 18% of cases, as did the psychiatrist making the application. GPs gave evidence in 13% of cases.

16. The frequent absence of the patient in such a hearing is concerning. As a general principle, we feel it is desirable that the patient should participate in a decision of such magnitude. The fact that, as we note later, the attendance of patients at tribunals in England is much more common suggests that the lack of attendance cannot be attributed solely to the state of health of patients. The research also suggests that nearest relatives very rarely play a part in the hearing.

17. We are concerned that the sheriff appears sometimes not to have access to significant information about the patient, and the patient's history. As well as being generally unsatisfactory this could lead to rather laborious taking of evidence from doctors and the patient over matters which are not contentious, even though important.

18. We also noted that in none of the cases we observed did the MHO give evidence, other than to confirm that he or she did not oppose the application for admission. In two of these cases, oral evidence was led. In another case, the patient had withdrawn opposition to the application, which was approved without hearing evidence, although the MHO and the RMO were both present.

19. In cases where evidence was not led, the case will have been considered on the basis of the written applications. These applications were brief in many cases, partly because the medical recommendations are completed on standard forms which allow little room for detailed information.

Variations in practice

20. The research found wide variations in practice, with different sheriffs taking very different approaches to issues such as the appointment of curators ad litem, and the hearing of evidence. The practice of MHOs also varied widely, with some much more likely than others to be legally represented.

21. There is considerable variation in the degree of formality employed in the hearings, and different sheriffs take different views on matters such as whether to don a wig and gown. In one particular case we observed a sheriff taking considerable care to reassure the patient as to the nature of the proceedings, and the court's independence from the doctors and social workers. The patient in the case told us his view that this was important, and he welcomed the opportunity to state his case in an independent forum.

22. We were advised that the extent to which sheriffs choose to intervene in the process also varies, with some regarding the matter as an adversarial process, with evidence led by legal representatives, and others operating in a more inquisitorial way: for example, by taking evidence directly from witnesses.

Representation and appeals

23. The presence of an experienced solicitor representing the patient appears to contribute significantly to the airing of important issues of concern. As the research shows, such representation is often absent. In one case we observed, legal representation had come about because of the active intervention of the mental health officer in securing a curator ad litem, but this went beyond anything that was required of the MHO in the legislation or the Code of Practice.

24. The number of patients who exercised the right to appeal against an application for detention under s26 (a 28 day order), or against a renewal of long term detention, was very small (there were 30 appeals out of 2005 renewals of detention in a year). This contrasts with the significantly higher number who seek a review of long term detention by the Mental Welfare Commission, and indeed the number of appeals to Mental Health Review Tribunals in England. It was also notable that very few appeals in Scotland were successful.

Organisation of hearings

25. The research confirmed that the sheriff court system does not suffer from the long delays which affect English tribunals in relation to long term detention. This difference can be attributed partly to the pressures on the English system of the large number of appeals against short term (28 day) detention, with strict time limits. Also, because the Scottish Act involves prior approval of long term detention, while the English Act does not, the English system as it currently operates is not under the same organisational imperative to ensure timeous hearings in cases concerning long term detention.

26. However, the fact that, in Scotland, mental health cases are fitted into other court business can lead to a degree of confusion over when cases will start, and in which court. This could clearly be upsetting to some patients and relatives. There is also a potential for patients and relatives to be waiting in court alongside people involved in criminal cases, which could increase the sense of intimidation experienced by some patients and families. A number of family members commented on how upsetting they found this.

27. The court research also highlighted that patients and relatives may receive very short notice of a hearing. Partly, this is because the Act requires the hearing to take place within five working days, but in some cases, the amount of notice given is much shorter than even this limited period. This makes it extremely difficult to prepare for the hearing and to arrange representation.

28. Solicitors with experience of mental health hearings also expressed concern regarding a lack of power by the patient to require witnesses to appear.

Training

29. Some sheriffs agreed that more training for sheriffs on mental health issues could be beneficial, particularly for sheriffs likely to hear such cases frequently.

Conclusion

30. The sheriff court has a number of positive features. It is authoritative and independent. Sheriffs have expertise in the law, and experience of applying the law to a range of situations. Sheriff courts are universally available, and can accommodate hearings at short notice.

31. However, we believe that there are significant shortcomings in the current system, when set against the key features we outline below.

32. Although there is evidence of good practice, it would appear that this is localised, and often depends on the initiative of individual sheriffs, sheriff clerks, and in some cases, doctors or MHOs. There are few standards laid down, and little opportunity for good practice to be disseminated.

33. We do not believe that sheriffs, without expert assistance, would be well placed to assess the detail of care plans, or the feasibility of non-compulsory alternatives. As we explain in Chapter 6, this requirement is a fundamental part of our proposed reforms.

The tribunal system in England and Wales

34. In order to obtain a different perspective on how a forum for mental health hearings might operate, we have considered the English system of Mental Health Review Tribunals (MHRTs). Committee representatives observed five tribunal hearings in different parts of England. The Tribunal Service also helpfully provided us with a range of background information. Further information was obtained from the literature review which we commissioned (see Annex 8), and that conducted for the English Mental Health Act review⁷³.

Powers of the tribunal

35. Like the sheriff, the MHRT can discharge a patient on appeal from a long term or 28 day detention, or from a hospital order with restrictions⁷⁴. There is currently a difference in the legislation, in that long term detention under s18 of the Scottish Act requires the prior approval of the sheriff. This is not required in England and Wales, although it is proposed in the Department of Health Green Paper⁷⁵ that this be a requirement in future. Currently, the patient has the right to appeal after long term admission. If the patient does not do so, a hearing must be held if renewal is sought at the end of the six month period. In addition, a hearing must be held every three years if a detained patient has not appealed during that time.

36. In addition to its powers of discharge, the tribunal can also amend the category of mental disorder under which a patient is detained⁷⁶. In one case we observed, for example, the categorisation of a patient as suffering from mental illness and psychopathic disorder was changed to mental illness alone.

37. The tribunal also has the power to attach recommendations to its decision. In one case we observed, it recommended that a restricted patient be moved from a secure hospital to a lower level of security. These recommendations are not binding but may influence the Home Office (who have responsibility for restricted patients in England) and health and social work agencies. We understand they may also assist a patient's legal representatives in some cases where judicial review of decisions by these bodies is under consideration.

Tribunal membership

38. Each tribunal consists of a legally qualified chair (where the hearing concerns a restricted patient, this is a circuit judge or recorder), together with a medical member and a lay member⁷⁷. The lay member will often have a social work or nursing background or family experience of mental illness, but this is not invariable. All posts are now advertised. There are significant problems in recruiting medical members. These are attributed partly to a general shortage of senior psychiatrists.

39. All members are trained, although some members expressed to us a view that they would wish more training.

Location of hearings

40. Cases are nearly all held at the relevant hospital, and staff and members appeared surprised at the notion of transporting the patient to a courtroom (as happens in Scotland). In the tribunals we observed, the facilities were adequate for the hearing - basically a room in the administrative department of the hospital with a large table and chairs. Indeed, the environment may have contributed to an atmosphere of informality. However there have been criticisms of the facilities at some hospitals.

Legal representation

41. Participants appear nearly always to be represented by solicitors. Indeed, in one case we witnessed, the solicitor attended and participated, even although she had been unable to obtain instructions from the client. The patient is entitled to choose a solicitor. If the patient does not do so, the tribunal service arranges representation from a panel of solicitors who are approved for legal aid purposes to undertake mental health cases. Legal aid is free and not means tested. The hospital is, we understand, rarely legally represented. This only tends to happen in difficult cases, concerning restricted patients, where the Home Office may instruct representation.

Organising tribunals

42. There are eight regional Mental Health Review Tribunals, and one in Wales. Each is chaired by a lawyer, who carries general responsibility for the exercise of the tribunal's functions. These are served by four English and one Welsh Tribunal offices. These offices provide Tribunal clerks and administrative support, and organise hearings. The Tribunal service is funded by the Department of Health in England, and in Wales by the Welsh Assembly. The costs for the financial year 1998-9 were £8,739,434 in England and £605,700 in Wales. In 1998 there were 18,503 applications and references, and 9,057 hearings (many hearings are cancelled because the patient has been discharged or has withdrawn the appeal).

43. There appears to be some pressure on resources, leading not only to delays, but a significant number of hearings being held without a clerk.

44. The strict time limits for appeals against 28 day detention create considerable organisational pressures. These must be held within seven days. The organisational target for arranging a hearing for long term detention is eight weeks. For restricted patients, it is as long as 20 weeks.

45. There is a considerable amount of concern about delays in hearings, which seem to suggest that these are a longstanding and serious problem. The MHRT Annual Report for 1997-98 stated that the mean average waiting time for non-restricted cases at March 1999 varied between regions from 10.3 to 15.2 weeks and, for restricted patients, from 14.4 to 38.7 weeks.

46. The quality of the tribunals is monitored by the Council on Tribunals, who occasionally observe hearings, and who have recently produced a special report on the operation of MHRTs⁷⁸. The report comments on issues of deficiencies in administrative
support, a need for more training and better accommodation for hearings.

Tribunal procedures

47. The tribunals operate according to rules prepared by the Lord Chancellor's Department, although the rules do not go into great detail as to how the tribunal itself should be conducted⁷⁹.

48. Patients can be excluded from hearings, or cases can be adjourned if they become upset or aggressive, although this can create administrative difficulties in reconvening with the same three tribunal members.

49. Hearings (both restricted and unrestricted) are held in private, although the patient can request that the hearing be opened to the public⁸⁰.

50. Research into the operation of tribunals has considered the inquisitorial model under which they operate. This is seen by its advocates as allowing a more open debate, and reflecting the fact that the hearing is not a private dispute between two parties. Critics on the other hand argue that this can mean that the tribunal is more like a case conference than a judicial hearing, and may lead to a paternalistic approach, and less emphasis on civil rights.

51. The tribunal receives a report in advance from the hospital, and a report from the approved social worker (equivalent to the MHO). In addition, the medical member must examine the patient shortly before the hearing. This usually happens either the day before or on the day. The medical member also studies the clinical notes.

52. The general atmosphere of the hearings we observed was informal, but also business-like, with considerable effort made to ensure that the patient was at ease and generally understood what was happening. The format in most cases was similar, although the order varied. The president (the legal chair of the tribunal) introduced the parties. The RMO was invited to speak to his or her report, and was questioned by the tribunal and the patient's solicitor (in one case we observed, the patient's husband was also invited to ask questions). The social worker spoke to his/her report, followed by similar cross questioning. Nurses may also give evidence. The patient's solicitor took evidence from the patient and made a closing submission. The decision was made by the tribunal after the parties had withdrawn, following a private discussion.

53. The fact that the key participants are altogether round a table, rather than giving evidence in series, seemed to allow for a more natural dialogue between the parties about the issues of the case.

54. Although most appeals are unsuccessful, discharges are not uncommon (see below). We were advised that, in most such cases, the discharge will usually be on the basis that the patient is mentally ill, but not sufficiently ill to meet the criteria within the Act of requiring detention in hospital. The advice of the medical member, or independent reports prepared for the patient, generally plays a significant part in arriving at such a conclusion.

55. Although not statutorily required to consider a care plan, the tribunals do look at issues of the care received, partly because of their power to make recommendations. The tribunals were also conscious of the implications of the patient being discharged to an unplanned situation. The tribunal does have the power to make a deferred discharge, to allow practical arrangements to be put in place, although the deferral should only be for a few days. In one case we witnessed, the tribunal asked the social worker to return in a few months to explain what progress had been made on planning a discharge to supported accommodation.

Outcome of hearings

56. As already noted in paragraph 42 above, many applications for hearings do not reach the hearing stage, either because the patient has withdrawn the application or, more frequently, because the RMO has discharged the patient before the hearing. Of the 9057 hearings held in the year to 31 December 1998, the MHRT Report for 1997-1998 recorded that there were discharges in 1169 cases: that is a discharge rate of 12.9%. The figures in the four English regions ranged from 10.5% to 16.1%. In the case of Wales, where the number of hearings was much smaller than in any of the English regions, the discharge rate was 21.8%.

57. However, it is not clear that these variations reflect inconsistency in decision making by the tribunals themselves. It is possible that it may in some cases reflect differing practice by psychiatrists. We heard anecdotal accounts that some psychiatrists may prefer to allow the tribunal to make a decision, where the need for further detention is equivocal. This could lead to patients coming before tribunals in some areas, who would be discharged in other hospitals before reaching the tribunal. Differing pressures on beds and the range and quality of services available locally may also contribute to inconsistencies in approach.

58. The contrast with Scotland is marked. Scotland has very few cases where applications for detentions are refused, and next to no successful appeals against detention. This may partially be explained by the fact that, in long-term detention, the court decision in Scotland normally takes place on admission, while an English appeal may be some time later. Since the patient's mental condition may well have improved, it would not be surprising that appeals met with more success.

However, this would not explain discrepancies in appeals against short-term detention and renewals of detention.

Conclusions regarding the English system

59. There appear to be a number of attractive points in the tribunal model. These included:

• informality;
• a procedure which is designed to involve all parties in discussion of the situation rather than setting one side against another
• attendance of patients as the norm;
• guaranteed and trained legal representation;
• training of tribunal members;
• a multi-disciplinary approach;
• periodic review, even where the patient does not appeal;
• a process that does not appear particularly intimidating; and
• the considerable advantages in holding hearings in hospital.

60. Against this, organising the tribunals is clearly a considerable administrative effort, and the availability of medical members in particular appears to be a problem. Delays are a real problem as we have already noted.

61. Further possible disadvantages include:

• medical reports can be out of date by the time of the hearing in long term detention cases because of delays in holding the hearing;
• the basis of the panel's decision may not always be clear;
• the medical member has a dual function as a member of the panel and as expert advising the panel before the hearing begins. This has been identified as a potential weakness of the system from the point of view of natural justice (since normally the judge in a case should be wholly independent from sources of evidence) and potentially in terms of ECHR obligations.

Proposed changes to English tribunals

62. The Richardson Committee recommended a number of changes to the tribunal system, as part of its review of English mental health legislation⁸¹.

63. It proposed that the administration of the service be transferred to the Lord Chancellor's Department, to emphasise its independence from the Department of Health. A national structure with a president was recommended, with greater resources, and a statutory responsibility to train tribunal members. There should be scope for an appeal on a point of law to the High Court

64. The Richardson Committee felt there was a need to retain access to medical and legal expertise, and also an independent perspective. The requirements for the lay member should be tightened, to provide that the lay member should have experience of mental health services outside hospital either as a professional, carer or user of services.

65. They had particular difficulties with the role of the medical member in the current framework. As already stated, the medical member both assesses the patient and is involved in making the decision. This was felt by the Committee to be untenable, since it means that the tribunal is making a decision partly on the basis of information which is not disclosed to, and therefore cannot be challenged by, the patient or patient's representative.

66. The option of retaining a medical member but having an independent report prepared by another psychiatrist was felt to be impractical on the grounds of the limited availability of psychiatrists. The Committee decided that allowing the medical member to be cross-examined would be unacceptable to many of these members, and would exacerbate problems in recruitment.

67. Richardson therefore proposed that there should be a tribunal without a psychiatric member, but with access to independent medical advice. This might either be a three person panel (a legal chair and two independent non-psychiatrist members) or a single person 'tribunal' with access to a panel of medical experts and also to a panel of independent experts in the provision of community services or risk assessment.

68. The Department of Health accepts the argument that the tribunal should not involve a medical member who assesses the patient⁸². It suggests that many cases under the new procedures will not be contested, and could often be heard by a single person, without requiring either a hearing or an independent medical opinion. It proposes an alternative model of a single person tribunal, with discretion to bring in additional members and to refer the case to a panel of medical or social care experts.

69. This suggestion has been criticised by the Council on Tribunals, in its special report on MHRTs. The Council believes that single-member tribunals and paper based hearings run contrary to principles of natural justice, and recommend a hearing in all cases before a three person tribunal, consisting ideally of a legally qualified Chairman, a consultant psychiatrist and a member with experience or knowledge of mental health services.

70. Tribunal members to whom we spoke were also concerned about the Department of Health proposals. They felt that the three-member composition helped to ensure a more rounded consideration of the case, and they valued the input of the medical member. Although conscious of the procedural issues concerning the dual role of the medical member, they did not feel that it created difficulties in practice.

71. The Council on Tribunals also expressed concern about the fact that the same body would have responsibility for imposing an order for compulsory treatment and later reviewing the order. They agreed with the Richardson Committee that the composition of a tribunal hearing a later appeal should not be the same as that which made the initial order.

Consultation

Initial consultations

72. In our first Consultation, we asked what was the most appropriate forum for considering compulsory measures and hearing appeals in mental health matters.

73. The majority of respondents advocated the introduction of some form of tribunal. Various suggestions were put forward, ranging from an experienced sheriff chairing a tribunal to something similar to the children's hearings system. The most common model, however, was a trained, independent tribunal of experts (including legal and medical expertise, experts in social care, and lay people) that would provide an opportunity for reviews to be heard in a multidisciplinary forum. Amongst the bodies advocating a 'panel' or tribunal were the Law Society, the Royal College of Nursing, British Association of Social Workers (BASW), Association of Directors of Social Work (ADSW), Scottish Association for Mental Health (SAMH) and the Scottish Association of Law Centres.

74. The reasons for wishing a new tribunal included concern about the perceived formal and intimidating nature of mental health hearings, and a view that some sheriffs did not treat patients appropriately. It was stated that these concerns inhibited some people from exercising their legal rights. There was also a view that the sheriff court was linked in the minds of service users and relatives with criminal proceedings.

75. The Law Society and SAMH proposed a body which could play a wider role than the sheriff currently does in detention, taking on some of the responsibilities of the Mental Welfare Commission and hospital managers.

76. Other respondents, including the Royal College of Psychiatrists, supported the sheriff court, as having independence and authority, although several of those who favoured the sheriff nevertheless argued that more could be done in terms of training of sheriffs and making hearings more informal. Some suggested specially trained sheriffs, or giving the sheriff access to an independent assessor.

77. Many respondents to our consultation with users and carers felt that the sheriff court, as a venue, was not the appropriate place to hear appeals or consider detentions. Both service users and carers found it intimidating. Some felt the atmosphere of the court made mentally ill people 'feel like they are criminals'.

Proposals in second consultation

78. It was pointed out to us in oral evidence that the choice of appropriate forum depends, to a large degree, on the task that the forum is being asked to undertake. As we have outlined in earlier chapters, we anticipate that the role of the forum in mental health hearings should change, from simply considering whether the statutory grounds for detention have been met, to a broader consideration of whether the particular compulsory powers being sought are appropriate, in the context of the principles of the Act and the plan of care put forward for the individual patient. Arguably, this shifts the balance away from a body with expertise mainly in the application of the law, to one with some expertise in issues of mental health care.

79. Our second Consultation again canvassed views on the forum, in the light of the suggestions that it play this broader role. Again, more respondents supported a tribunal than the retention of the sheriff, although health bodies and health professionals tended to be less in favour of tribunals than other respondents.

Responses in favour of a tribunal

80. Those in favour argued that a tribunal system would counter many of the difficulties associated with the sheriff court. The Law Society was of the view that there should be an accessible, independent forum to deal with reviews and appeals and that this could best be achieved through an independent tribunal system, situated in local areas, with membership drawn from legal and medical professions, social services and lay people. This specialist tribunal system would require joint training and involve a small number of chairpersons.

81. BASW added, in support of this model, that tribunals should not only consider the need for compulsory intervention but take a holistic view of the care and treatment plans in each individual case.

82. The Mental Welfare Commission was also a supporter of the tribunal option and proposed a panel of three, chaired by a legally qualified person and with the other two members drawn from relevant mental health professionals and lay persons. Competence to make judgements both about the appropriateness of detention and to scrutinise and approve plans of care would be more important than professional background. The Commission envisaged that it could advise on appointments and act as mentor to tribunal members to ensure competence and consistency of practice.

83. Others in favour of the tribunal included SAMH, The Scottish Users' Network (SUN) and ENABLE, for whom the perceived benefits of this model included: independence from clinical staff; the scope for the individual client / user to be more involved in the decision making process and the prospect of more effective and consistent decision making.

Responses in favour of the sheriff courts

84. A number of respondents supported the sheriff court as the preferred option, but suggested that some changes were required.

85. The Royal College of Psychiatrists (RCP) recommended that the sheriff court be retained but that a less formal hearing would be beneficial. Sheriffs should be able to access independent written and oral reports as required and it would be for the sheriff to determine whose advice to seek dependent on the circumstances of each case. The RCP considered that tribunals could be cumbersome and time consuming.

86. The BMA proposed that the sheriff alone should decide upon the legality of detention but should have expert advice on the care plan.

87. The State Hospitals Board regarded an enhanced sheriff court as the preferred forum and suggested that advisors to the sheriff should comprise a psychiatrist and / or an MHO. Tribunals were considered to be cumbersome and slow and likely to lead to inconsistencies.

88. The British Psychological Society was of the view that the sheriff court afforded independence, impartiality and availability and was therefore preferable to a tribunal. The use of independent expert advisors, with competencies in relevant areas, was regarded as an additional benefit.

89. The Faculty of Advocates put forward arguments to justify remaining with the sheriff as decision-maker. The reasoning was that the sheriff is independent, legally qualified, conversant with issues of natural justice and civil liberties and the sheriff court system complies more satisfactorily with ECHR expectations. In addition, it was argued, an infrastructure is already in place, which could be adapted to make its procedures less formal and more sensitive. Sheriffs have jurisdiction under the Adults with Incapacity Act and it would therefore be in the interests of consistency to retain their role in relation to the revised Mental Health Act.

Key features of an improved system

90. As these different views show, the precise model of forum which should be adopted is a difficult question. However, we are clear that the current system needs to be reformed. There are a number of particular features which we believe are central requirements of a reformed system.

91. The forum should be informal and not intimidating, but should be authoritative, and comply with rules of natural justice, and the European Convention on Human Rights. The body should have expertise in the law, and an understanding of the principles of the Act and of mental health care. Those making the decision should be appropriately trained in all of these matters.

92. The hearing should be governed by clear statutory rules of procedure, drawn up after consultation with service user and professional interests. These should be more comprehensive than the current rules. They should also be supplemented by guidance to the forum and participants on best practice.

93. The patient should normally be present, and should have a genuine opportunity to participate. There will of course be patients who do not wish to attend, or who are too ill to attend. However, we were struck by the fact that the English system regards attendance of patients as the norm, and we believe it is a desirable goal.

94. Carers and relatives who wish it should also have an opportunity to participate. We discuss in Chapter 16 the need for carers and relatives to have access to information regarding compulsory measures.

95. The patient should have automatic access to legal representation. We strongly believe that it is not enough that the patient should, as is currently the case in Scotland, have a right to obtain a lawyer. Most patients will not be in contact with solicitors, and it is expecting a great deal of them to find a solicitor while detained in a hospital. We understand that some hospitals and social work departments maintain lists of interested solicitors, but these are often ad hoc, sometimes out of date, and based on self-referral. We believe there should be, as is the case in England, a formal system for obtaining legal representation for patients from solicitors with accredited competence in mental health law.

96. In cases where the patient is not able to instruct legal representation, we believe a curator ad litem should always be appointed to represent the patient's interests.

97. Hearings should be held speedily. Hearings should be held in private, unless the patient objects to this. Translation and interpretation facilities should be available, wherever required (see Chapter 18).

98. Hearings should normally be held in a hospital or community based facility. There were differences in view, both amongst service users and others, about the appropriate venue, with some preferring the hospital as more convenient and less intimidating, while others felt the court setting emphasised the independence of the hearing. In our visits to English tribunals, we did not have the sense that the independence of the hearing appeared to be compromised by being in a hospital, and it appeared to be one factor in the much higher rate of patient attendance. We recognise however that, in some cases, particularly if the patient expresses a preference, it should be possible to hold the hearing in another more neutral venue.

99. There should be monitoring of standards across Scotland, in the arrangements for the hearings, and the procedures during hearings.

100. The forum should, in addition to the powers to approve or refuse applications for compulsory measures, and to consider appeals, have the power to call witnesses before it on issues relating to the care of the patient.

101. There should be a right of appeal by the patient, the MHO or RMO from the forum to the Court of Session on a point of law only. This appeal right, apart from being desirable from the point of view of the rights of the patient, may help in developing a body of case law which will assist in interpretation of the Act.

102. For restricted patients, the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 introduced an appeal right to the Court of Session on issues of both fact and law.

103. We considered whether the appeal rights for non-restricted patients should be the same as for restricted patients. However, we felt that to have appeals on issues of fact to the Court of Session in all cases could undermine the status of the forum, and would be inconsistent with the general approach taken in Scotland in relation to the sheriff court and tribunals. Conversely, given the greater element of public interest in cases concerning restricted patients, and the more limited number of cases, we saw no reason to remove the appeal rights which were created in 1999, and which were generally welcomed. We therefore propose that these should remain.

104. Where a restricted patient obtains a decision of the sheriff in favour of discharge, which is appealed by Scottish Ministers, the Court of Session may order that the patient continue to be detained, pending the determination of the appeal. We do not feel it is appropriate that the same provision should apply in respect of non-restricted patients. Should the forum order their discharge, this should take effect. In a case where a patient, subsequent to discharge, meets the criteria for compulsory measures, a new application can of course be made.

Proposals for a new tribunal

105. We considered a number of options, and concluded that there are two which are most likely to meet our criteria. One is to create a new specialist tribunal and the other is to retain the role of the sheriff, but with the support of expert assessors.

Mental health tribunal

106. A new mental health tribunal would be a three person body, consisting of a legal chair, together with a medical member and a member with professional and/or personal experience of mental health services. This three person tribunal would sit in all cases.

107. The legal member would be an experienced solicitor or advocate or perhaps an academic lawyer with appropriate expertise. In cases concerning restricted patients, it would be a requirement that a sheriff chair the hearing. (See Chapter 27)

108. The medical member would normally be a consultant psychiatrist or recently retired consultant psychiatrist. For some cases, particularly those involving people with learning disability, it might be desirable to allow for a chartered clinical psychologist to be the 'medical' member.

109. The third member could have a background in nursing or social work, or other relevant professions such as occupational therapy, or have personal experience as a carer or user of mental health services.

110. All members would require appropriate training in mental health and mental health law, which training should be regularly updated.

111. We have mentioned the criticisms of the practice in England and Wales of the medical member examining the patient prior to the hearing as well as being part of the decision making process. However, such an examination does have benefits. It means that the medical member (and, by extension, the tribunal) will have a degree of first hand knowledge of the patient, with which to evaluate the evidence presented. The main disadvantage would appear to be the possible incompatibility with the requirements of natural justice and ECHR of the procedure, at least as it currently operates in England and Wales. However, we believe that this issue could be resolved by arrangements in the procedural rules, perhaps providing that the findings of the medical member should be made available to the hearing, and the medical member could be questioned on these by the patient's representative.

112. Appointments to the pool of tribunal members would be made by the Minister for Justice, following public advertisement. As with other tribunals, the Council on Tribunals would have general oversight of the system.

113. It has not been possible for us to give detailed consideration to the organisational structure of a new tribunal system. We anticipate that the responsibility for establishing and funding the system would lie with the Scottish Executive Justice Department. We note that the Council on Tribunals have recommended that the English and Welsh Tribunal System should have a judicial head to provide leadership and direction, and that this proposal was endorsed by the Richardson Committee. We believe that there would be considerable benefits in having a senior judicial figure identified as the head of a Scottish tribunal system.

Sheriff with assessors

114. Should the sheriff court be retained as the forum, the sheriff would sit with two assessors. One of these would be a psychiatrist, and the other a person with personal or professional expertise in social care, applying the same criteria as for the two non legal members of the tribunal. These assessors would be able to question witnesses during the hearing and would assist the sheriff in evaluating the care plan and other evidence led.

115. The medical assessor would examine the patient in advance of the hearing, and provide a report for the sheriff. This would be available in open court for comment by the patient or patient's representative.

116. All three members of the hearing would participate in the decision, with the written reasons for the decision being prepared by the sheriff. We considered an alternative option, that the sheriff take the decision alone, after being advised by the assessors. However, the point was made to us that there could be some difficulty in distinguishing and allocating the functions of the assessors in such a way that the process is demonstrably transparent, fair and impartial. If the responsibility for decision-making is to lie with the sheriff, there could be a perception that his or her decision was open to influence by private and untested advice from the assessors rather than on evidence tested in open hearing. As we have noted, the collegiate approach appears to be a valued part of the English system, including those cases where the president is a judge.

117. All three members should be present in all cases.

118. Although the assistance of assessors would lessen the need for the sheriff to have expertise in mental health issues, we nevertheless believe that a greater degree of training for sheriffs than is currently the norm would be essential. There would also be more advice and information available to sheriffs on best practice in relation to mental health hearings.

Discussion of options

119. The two proposed options are similar in many respects. Each would involve adjudication of hearings by a combination of experts in the law, medicine and social care. Whichever option is adopted, there will be many details to be resolved which the Committee has not had time to consider.

120. Should sheriffs be retained as the forum, there may be practical difficulties with our recommendation that hearings normally be held in hospital, although we understand that some sheriffs do already hold hearings in hospital in certain cases.

121. In relation to organising legal representation, the existence of the tribunal infrastructure in England and Wales seems to facilitate this. We are not sure whether sheriff clerks would be well placed to undertake this role, although they could no doubt do so, if suitably resourced.

122. We understand that it is relatively uncommon for there to be formal arrangements to monitor the consistency of approach of sheriffs in relation to a particular kind of hearing, in the way that could be done with a tribunal system through a central organisational structure, and the oversight of the Council on Tribunals.

123. A provision that sheriffs sit with assessors is unusual, although we understand that it is not totally unprecedented (for example in race relations cases). It remains to be seen whether sheriffs would feel comfortable with their role in leading a three person hearing.

124. Against these points, the creation of a new tribunal system would no doubt be more of an administrative undertaking than developing a system of sheriffs with assessors. In either case however it would take some time to establish the new system of hearings and have it in operation.

125. We are not in a position to provide financial estimates, but it may be that a new tribunal system would be more expensive to operate than retaining the sheriff court, even with the addition of specialist assessors.

126. We were particularly concerned by the delays in the English system. Such delays could not be countenanced where a hearing is required prior to the application of long term compulsory measures as would continue to be the case in Scotland, and as indeed it is now intended for England under the Department of Health proposals. However, it would not seem to be the case that tribunals are inherently liable to delay, but simply that adequate resources must be in place to deal with the workload, including proper administrative support. The practice occurring in England and Wales of tribunals taking place without a clerk would be unacceptable.

127. Based on the English experience, the biggest practical difficulty, in either of the options we have outlined, might be obtaining an adequate pool of psychiatrists to act as tribunal members or assessors. No doubt some use could be made of retired psychiatrists but there is of course a danger that, in time, they may lose touch with current clinical practice. We accept that this may present problems but we would re-emphasise our view that the input of experts, including medical experts, is fundamental to the role of the forum under our general scheme of reform.

128. We recognise that either of our proposed options represents a major change. It will be essential that the change be properly planned, and that arrangements for the new system be robust. Most importantly, the new system must be adequately funded, so that there would be no question of the problems which have occurred in England because of a lack of resources arising here.

129. On balance we favour the establishment of a specialist tribunal system. This seems to us to provide for appropriate expertise and authority, while providing a setting which allows for a full and open discussion of the best options for the patient. Our aims could no doubt be achieved in the Sheriff Court, but to a large degree by the Sheriff Court becoming more like a tribunal than a traditional court hearing. That being so, and given the criteria we have already described for the new forum, the most satisfactory conclusion is to adopt the specialist tribunal option.

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