Advocacy Before the Advocacy Before the Mental Health Mental Health

TribunalTribunalTam Gill Tam Gill

20122012

Case PreparationCase Preparation

‘‘To Kill a Mockingbird’ by Harper Lee: The To Kill a Mockingbird’ by Harper Lee: The advice of Atticusadvice of Atticus

Never, never, never, on cross-Never, never, never, on cross-examination ask a witness a question you examination ask a witness a question you don't already know the answer to, was a don't already know the answer to, was a tenet I absorbed with my baby-food. Do it tenet I absorbed with my baby-food. Do it and you'll often get an answer you don't and you'll often get an answer you don't want, an answer that might wreck your want, an answer that might wreck your case."case."

The only way you will be in the privileged The only way you will be in the privileged position of knowing the answer to every question position of knowing the answer to every question you will ask is by way of careful, thorough and you will ask is by way of careful, thorough and diligent preparation.diligent preparation.

The Tribunal is, in the main, going to concern The Tribunal is, in the main, going to concern itself with whether or not the statutory criteria are itself with whether or not the statutory criteria are met. You met. You must must know these. They are set out in know these. They are set out in section 72 of the Mental Health Act and can be section 72 of the Mental Health Act and can be summarised as:summarised as:

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

It is also important, as well as knowing the It is also important, as well as knowing the statute, to be aware of the case law statute, to be aware of the case law surrounding the criteria. For example, on surrounding the criteria. For example, on the issue of ‘detention being necessary’, the issue of ‘detention being necessary’, the case of the case of Reid v Secretary of State for Reid v Secretary of State for Scotland [1998] UKHL 43Scotland [1998] UKHL 43 states that the states that the standard is ‘necessity, not desirability’.standard is ‘necessity, not desirability’.

The MHT is inquisitorial, so you need to The MHT is inquisitorial, so you need to deal with the evidence accordinglydeal with the evidence accordingly

keep the statutory criteria in your mind at all keep the statutory criteria in your mind at all times. times.

where is the supporting evidence? where is the supporting evidence? where do the weaknesses in your case fall?where do the weaknesses in your case fall?

The onus is on the Tribunal not to accept The onus is on the Tribunal not to accept historical ‘hearsay’ evidence; or, at least, to give historical ‘hearsay’ evidence; or, at least, to give little weight to it – see: little weight to it – see: R (DJ) v MHRT; R (AN) v R (DJ) v MHRT; R (AN) v MHRT (2005) EWHC 587 (Admin) MHRT (2005) EWHC 587 (Admin)

MENTAL DISORDERMENTAL DISORDER

P’s insight into diagnosisP’s insight into diagnosis Need for medication / compliance?Need for medication / compliance? Compliance with CMHT meetingsCompliance with CMHT meetings

Exacerbating factors - Drugs, alcohol, Exacerbating factors - Drugs, alcohol, stressorsstressors

NATURENATURE How well does P stay between How well does P stay between

admissions?admissions? Probability of relapse / speed of relapse?Probability of relapse / speed of relapse?

Compliance with CMHT?Compliance with CMHT?

DEGREEDEGREE Why has degree changed? – drugs, Why has degree changed? – drugs,

alcohol, stressalcohol, stress

OWN HEALTHOWN HEALTH Effect of non-compliance with meds on Effect of non-compliance with meds on

health?health? Any physical illnesses made worse by Any physical illnesses made worse by

deterioration in mental health?deterioration in mental health?

OWN SAFETYOWN SAFETY Risks to self – suicide, Deliberate self Risks to self – suicide, Deliberate self

harm, vulnerable / at risk for others?harm, vulnerable / at risk for others?

PROTECTION OF OTHERSPROTECTION OF OTHERS Child protection issues? Child protection issues?

Any outstanding criminal matters?Any outstanding criminal matters?

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

Initial InstructionsInitial Instructions

The initial instructions are essential. The initial instructions are essential. have in mind the statutory criteria. have in mind the statutory criteria. Always look at section papers during your Always look at section papers during your

preparation preparation You do not need to have the Statutory You do not need to have the Statutory

reports in order to begin to take P’s reports in order to begin to take P’s instructions in relation to his Tribunal instructions in relation to his Tribunal hearing.hearing.

does he feel he has a mental disorder? does he feel he has a mental disorder? how would he describe ithow would he describe it how does it affect himhow does it affect him how does he keep himself wellhow does he keep himself well what makes him feel better / worse; what makes him feel better / worse;

does he take medication & what are his does he take medication & what are his views on taking medication? views on taking medication?

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

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

Legal rep: ‘Doctor, have you discussed alternatives to Legal rep: ‘Doctor, have you discussed alternatives to Olanzapine with P?Olanzapine with P?

RC: ‘P has said he won’t take Olanzapine medication, so RC: ‘P has said he won’t take Olanzapine medication, so I plan to keep him here until he gains enough insight to I plan to keep him here until he gains enough insight to understand the need for medication’understand the need for medication’

RC: Olanzapine is the first line of treatment for RC: Olanzapine is the first line of treatment for schizophrenia and is what P has been prescribed in the schizophrenia and is what P has been prescribed in the past.past.

LR: What reasons has P given for not wanting to take LR: What reasons has P given for not wanting to take Olanzapine?Olanzapine?

RC: He is simply refusing to take it, he is clearly RC: He is simply refusing to take it, he is clearly insightless.insightless.

P’s EvidenceP’s Evidence

P: Olanzapine makes me fat, I’m only 30 for P: Olanzapine makes me fat, I’m only 30 for goodness sake. I’d rather take something like goodness sake. I’d rather take something like Risperidone. I’ve done some reading and it says Risperidone. I’ve done some reading and it says it doesn’t give you weight gain and it is an anti-it doesn’t give you weight gain and it is an anti-psychotic drug, so it’ll help with my voices.psychotic drug, so it’ll help with my voices.

LR: So, if the RC were to prescribe another anti-LR: So, if the RC were to prescribe another anti-psychotic, you would be willing to try it?psychotic, you would be willing to try it?

P: Yes, I just don’t want to end up weighing 20 P: Yes, I just don’t want to end up weighing 20 stone and not able to play football with my kid.stone and not able to play football with my kid.

pre-empt lines of questioningpre-empt lines of questioning peruse the in-patient medical records peruse the in-patient medical records is there is a note made of P’s requests – is there is a note made of P’s requests –

does he ask for different medication?does he ask for different medication? look at his community medical records and look at his community medical records and

elicit the points that will support your case elicit the points that will support your case or that are negative points you will need to or that are negative points you will need to addressaddress

Preparation is never wasted!!Preparation is never wasted!!

NatureNature

what type of an illness is it? what type of an illness is it? How does it change? How does it change? Is it chronic, acute, relapsing / remitting, Is it chronic, acute, relapsing / remitting,

unchanging, made worse by drugs? unchanging, made worse by drugs? How quickly would he deteriorate if not on How quickly would he deteriorate if not on

medication?medication?

R v Mental Health Review Tribunal for the South R v Mental Health Review Tribunal for the South Thames Region ex parte Smith [1998] EWHC Thames Region ex parte Smith [1998] EWHC 832 (Admin)832 (Admin) it was held by Popplewell J that: it was held by Popplewell J that:

The word ‘nature’ refers to the particular mental The word ‘nature’ refers to the particular mental disorder from which the patient suffers, its disorder from which the patient suffers, its chronicity, its prognosis and the patient’s chronicity, its prognosis and the patient’s previous response to receiving treatment for the previous response to receiving treatment for the disorderdisorder

The word degree refers to the current The word degree refers to the current manifestation of the patient’s disordermanifestation of the patient’s disorder (see (see below)below)

CM v Derbyshire NHS Foundation Trust [2011] UKUT CM v Derbyshire NHS Foundation Trust [2011] UKUT 129 (ACC) [12]:129 (ACC) [12]:

If the nature of a patient’s illness is such that it If the nature of a patient’s illness is such that it will relapse in the absence of medication, then will relapse in the absence of medication, then whether the nature is such as to make it whether the nature is such as to make it appropriate for him to be liable to be detained in appropriate for him to be liable to be detained in hospital for medical treatment depends on an hospital for medical treatment depends on an assessment of the probability that he will relapse assessment of the probability that he will relapse in the near future if he were free in the in the near future if he were free in the community and on whether the evidence is that community and on whether the evidence is that without being detained in hospital he will not without being detained in hospital he will not take the medicationtake the medication

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

History of IllnessHistory of Illness

Look at the history of the illness. Look at the history of the illness. How long does P manage between relapses? How long does P manage between relapses? What happens when he does relapse – is it quick, or a What happens when he does relapse – is it quick, or a

slow steady decline? slow steady decline? Can it be picked up by the care team when they see him Can it be picked up by the care team when they see him

in the community? in the community? Does he need more frequent visits in the community? (is Does he need more frequent visits in the community? (is

there an Assertive Outreach / Home Treatment Team there an Assertive Outreach / Home Treatment Team that could support P through a crisis period and avoid that could support P through a crisis period and avoid admission to hospital?).admission to hospital?).

DegreeDegree Put simply, ‘how bad is it?’. Put simply, ‘how bad is it?’. What are the symptomsWhat are the symptoms how are the symptoms controlled. how are the symptoms controlled. If there are delusional beliefs, who is at risk from them? If there are delusional beliefs, who is at risk from them?

i.e. is it a delusion incorporating others i.e. is it a delusion incorporating others [my neighbour [my neighbour keeps breaking into my flat and moving things around keeps breaking into my flat and moving things around and I am going to get him for it]and I am going to get him for it]

Or is it self-contained Or is it self-contained [I must change my locks every 10 [I must change my locks every 10 days as I am sure someone has a key to my door].days as I am sure someone has a key to my door].

The evidence will be in the medical The evidence will be in the medical records! (both in-patient and out-patient). records! (both in-patient and out-patient).

Speak to the nursing staff, ask them ‘how Speak to the nursing staff, ask them ‘how does P present from day to day? does P present from day to day?

What symptoms do you see from day to What symptoms do you see from day to day? Make a careful note of what they say day? Make a careful note of what they say (and what their name is) - this is evidence!(and what their name is) - this is evidence!

You may also want to speak to family members, You may also want to speak to family members, if P gives his permission for this.if P gives his permission for this.

Particularly, speak to the NR / person who is Particularly, speak to the NR / person who is living with P. living with P.

What have they seen? What have they seen? What is their understanding of the situation? What is their understanding of the situation? Consider: does your client want this person in Consider: does your client want this person in

the Tribunal room giving evidence on his behalf?the Tribunal room giving evidence on his behalf?

RisksRisks

It is important to separate out risks that arise as It is important to separate out risks that arise as a result of the mental disorder from ‘criminality’ a result of the mental disorder from ‘criminality’ that should properly be dealt with by way of the that should properly be dealt with by way of the criminal justice system.criminal justice system.

Recall that Recall that R (on the application of LI) v Mental R (on the application of LI) v Mental Health review Tribunal [2004] EWHC 51 Health review Tribunal [2004] EWHC 51 (Admin)(Admin) notes that the fact that a patient could notes that the fact that a patient could pose a risk to the public for reasons pose a risk to the public for reasons unconnected with his mental illness is not unconnected with his mental illness is not relevant to the Tribunal’s Decision.relevant to the Tribunal’s Decision.

Look at the Risk assessments on the medical file. Compare and contrast Look at the Risk assessments on the medical file. Compare and contrast with previous risk assessments.with previous risk assessments.

What has changed, and why? What has changed, and why? Are the risks accurate (eg: if there is a risk of fire-setting, explore whether 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 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 psychotic episode). If there is a risk of assault, determine under what circumstances the assaults have taken place – driven by psychosis, or circumstances the assaults have taken place – driven by psychosis, or following provocation on the ward by another acutely unwell patientfollowing provocation on the ward by another acutely unwell patient

This is not to minimise any form of assault; more to understand the nature of 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 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’.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 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 environments within the psychiatric care system and is likely to be the most volatile.volatile.

Own HealthOwn Health

What is P likely to do to himself if he were What is P likely to do to himself if he were not detained? not detained?

What are the risks? What are the risks? Would he stop taking his medication and Would he stop taking his medication and

deteriorate further / not get better? Self-deteriorate further / not get better? Self-neglect?neglect?

Own SafetyOwn Safety

Risk of suicide, risk of self harm, risk of not Risk of suicide, risk of self harm, risk of not taking medications and deteriorating. taking medications and deteriorating.

Self neglectSelf neglect vulnerability (eg: to exploitation, be it vulnerability (eg: to exploitation, be it

sexual or financial)sexual or financial)

Protection of OthersProtection of Others

Assaults, exploitation of others, stalking, Assaults, exploitation of others, stalking, threats to harm others previously made.threats to harm others previously made.

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

You, as P’s legal representative, will be the person who knows You, as P’s legal representative, will be the person who knows the case bestthe case best

You will have read all the information that the Responsible You will have read all the information that the Responsible Authority hasAuthority has

You have the advantage of having taken detailed instructions You have the advantage of having taken detailed instructions from your client on the reports, medical records (of course from your client on the reports, medical records (of course mindful of third party disclosures!) mindful of third party disclosures!)

Consider the section papers and carefully note the justification Consider the section papers and carefully note the justification for admitting P – what is alleged to have been going on for admitting P – what is alleged to have been going on immediately prior to his admission? Did the NR consent to the immediately prior to his admission? Did the NR consent to the admission? admission?

You know the law. You know the law.

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

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

You should be going in to the Tribunal room with a relatively You should be going in to the Tribunal room with a relatively clear view of how you intend to elicit the evidence. clear view of how you intend to elicit the evidence.

Do not go in with a set list of questions (‘a script’) for each Do not go in with a set list of questions (‘a script’) for each witness and refuse to waver from your Game Plan witness and refuse to waver from your Game Plan

If the Tribunal is asking the questions you want answered, then If the Tribunal is asking the questions you want answered, then do not repeat them! do not repeat them!

This will usually serve to demonstrate that you have not been This will usually serve to demonstrate that you have not been listening to the evidence and will surely irk the Tribunallistening to the evidence and will surely irk the Tribunal

Be ready to change your approach – good advocacy is not just Be ready to change your approach – good advocacy is not just about what you about what you do do say, but at times, about what you say, but at times, about what you do notdo not say say (‘the question too far’).(‘the question too far’).

Do not shy away form the negative points in your case – Do not shy away form the negative points in your case – address them and put them into context:address them and put them into context:

Sample SubmissionSample Submission ““In terms of risk to others, P has recently In terms of risk to others, P has recently

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

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

Try to speak with the RC, CPN, Social Worker (or the Try to speak with the RC, CPN, Social Worker (or the people who will be attending the hearing to give the people who will be attending the hearing to give the evidence) to discuss the case. evidence) to discuss the case.

Attend CPA meetings, and make sure you write to the Attend CPA meetings, and make sure you write to the care team and ask if they will be convening a CPA / care team and ask if they will be convening a CPA / s.117 meeting prior to the Tribunal date.s.117 meeting prior to the Tribunal date.

More often than not, professionals will appreciate the More often than not, professionals will appreciate the Legal Representative taking the time to talk about the Legal Representative taking the time to talk about the case. case.

There is no place for ‘advocacy by ambush’. Talk There is no place for ‘advocacy by ambush’. Talk through the case, compare views. Discuss concerns. through the case, compare views. Discuss concerns.

Duty of confidentiality between you and Duty of confidentiality between you and your client. You must use your your client. You must use your judgement. judgement.

Your Principal SolicitorYour Principal Solicitor Law Society guidance / HelplineLaw Society guidance / Helpline SRASRA MHLAMHLA

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

So outside the Tribunal room door:So outside the Tribunal room door: you have a clear idea of the written evidence in this you have a clear idea of the written evidence in this

casecase your client’s instructionsyour client’s instructions the care team’s viewsthe care team’s views you will have an idea of what your Submissions will you will have an idea of what your Submissions will

be be you will have reviewed the law to ensure it is all fresh you will have reviewed the law to ensure it is all fresh

in your mind. in your mind.

Do not forget that once you leave the Tribunal Do not forget that once you leave the Tribunal room, you leave behind you a care team and room, you leave behind you a care team and patient who must continue to work togetherpatient who must continue to work together

It is onerous upon you to not deliberately It is onerous upon you to not deliberately damage that relationship between patient and damage that relationship between patient and care team. care team.

Challenge the evidence, advocate on behalf of Challenge the evidence, advocate on behalf of the patient, state the law and apply the facts to the patient, state the law and apply the facts to it.it.

Remember that you have a responsibility to be Remember that you have a responsibility to be civil and polite, and to leave a functioning civil and polite, and to leave a functioning relationship behind you.relationship behind you.

Tam Gill Tam Gill Principal Solicitor - Gledhill SolicitorsPrincipal Solicitor - Gledhill Solicitors 1919thth February 2012 February 2012