1. MENTAL HEALTH TRIBUNALS
Anselm Eldergill

2. A purely personal view
The author of this presentation is not a member of
the Mental Health Commission or Mental Health
Tribunal. The presentation is an independent, and
purely personal, interpretation of the relevant legal
provisions. Nothing expressed in it should be taken
as having been authorised, approved or endorsed by
the Commission or tribunal, or as representing their
views.

3. §1 — INTRODUCTION

4. Mental disorder
140
130
120
100
80
60 60 Homicides
40
20
0
1972 1995
Year

5. ‘Patients’ An individual
KEY CHARACTERISTICS
An individual, no more and no less so than any other
individual. An individual who suffers, who wills certain ends
for themselves and their loved ones and not others, who
wishes to develop, and to be happy and fulfilled.
A citizen. That is, a person whose needs and interests the
Government exists to serve. A brother, sister, mother, father.
‘Those we describe as patients are members of the public, so
that the law must seek to ensure that members of the public
are not unnecessarily detained, and also that they are
protected from those who must necessarily be detained.’

6. §2 — EUROPEAN CONVENTION

7. Article 3
‘No one shall be
subjected to torture
or to inhuman or
degrading
treatment or
punishment.’
Consider how this impinges on a tribunal’s power of
discretionary discharge and the mandatory discharge
criteria.

8. Medical treatment
As a general rule, a
measure which is a
therapeutic
necessity cannot be
regarded as inhuman
or degrading
Herczegfalvy v.
Austria (1992)

9. Article 5
No one shall be deprived
of his liberty save in the
following cases and in
accordance with a
procedure prescribed by
law: ...
(e) the lawful
detention of ... persons
of unsound mind

10. Article 8
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national
security, public safety or the economic well-being of
the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the
protection of the rights and freedoms of others.

11. §3— INVOLUNTARY ADMISSION
PART 2

12. Statutory Framework & Principles

13. Statutory principles
4.— In making a decision under this Act
concerning the care or treatment of a
person (including a decision to make
an admission order in relation to a
person) —
(a) the best interests of the person shall
be the principal consideration with due
regard being given to the interests of
other persons who may be at risk of
serious harm if the decision is not made.
(b) due regard shall be given to the
need to respect the right of the person to
dignity, bodily integrity, privacy and
autonomy.

14. Involuntary admission

15. Involuntary admission
A person may be
involuntarily admitted to
an approved centre and DEFINITION OF MENTAL
detained there ‘on the DISORDER
grounds that s/he is
suffering from mental
disorder.’ CRITERIA FOR
SHORT-TERM
CRITERIA FOR
LONG-TERM
CRITERIA FOR
GUARDIANSHIP
DETENTION TREATMENT
S/he may not be
involuntarily admitted
‘by reason only of the DEFINITION OF MENTAL
DISORDER INCLUDES
fact that s/he is THE CONDITIONS FOR
suffering from COMPULSION
personality disorder; is “Certifiable mental
disorder”
socially deviant; or is
addicted to drugs or
intoxicants.’

16. Exclusions
‘Nothing … shall be construed as authorising the
involuntary admission of a person to an approved centre by
reason only of the fact that the person—
(a) is suffering from a personality disorder;
(b) is socially deviant; or
(c) is addicted to drugs or intoxicants.’
Mental Health Act 2001, s.8(2).

17. MENTAL DISORDER (1)
Significant
Mental illness Severe dementia
Intellectual disability
A state of mind which A deterioration of the A state of arrested or
affects the person’s person’s brain which incomplete development
thinking, perceiving, significantly impairs of mind
emotion or judgement their intellectual function WHICH INCLUDES
AND THEREBY significant impairment of
which seriously impairs affecting thought, intelligence and social
mental function comprehension and functioning
TO THE EXTENT THAT memory AND
s/he requires care or AND WHICH INCLUDES abnormally aggressive or
medical treatment in severe psychiatric or seriously irresponsible
her/his own interest or behavioural symptoms conduct on the part of
in the interest of others. such as physical the person.
aggression.

18. MENTAL DISORDER (2)
Risk ground Therapeutic ground
Because of the illness, disability (i) because of the severity of the illness,
or dementia, there is a serious disability or dementia, the judgment of
likelihood of the person the person concerned is so impaired that
concerned causing immediate and failure to admit the person to an approved
serious harm to himself or herself centre would be likely to lead to a serious
or to other persons. deterioration in his or her condition or
would prevent the administration of
appropriate treatment that could be given
only by such admission, and
(ii) the reception, detention and treatment
of the person concerned in an approved
centre would be likely to benefit or
alleviate the condition of that person to a
material extent.

19. Significant intellectual disability case
1 A state of arrested Not a developmental condition.
or incomplete (Mind not arrested or
development of incompletely developed)
mind
2 + Significant Any impairment is not significant,
impairment of e.g. IQ > 70.
intelligence
3 + Significant Any impairment is not significant.
impairment of social If it is, it is associated with
functioning personality disorder or some
other cause, e.g. upbringing.
4 + Abnormally Aggression is not abnormal, or is
aggressive or not the product of an arrested or
seriously incompletely developed mind.
irresponsible Person’s behaviour is not
behaviour ‘seriously’ irresponsible.

20. Significant intellectual disability case
5a + Serious likelihood of Although harm to the patient or others is
immediate and possible, it is not ‘likely’.
serious harm
6a + If harm is ‘likely’, it is not ‘seriously likely’.
7a + If some harm is ‘seriously likely’, that harm
does not amount to ‘serious harm’.
8a + If ‘serious harm’ is ‘seriously likely’, it is not
‘seriously likely’ to happen ‘immediately’.
9a + If ‘serious and immediate harm’ is ‘seriously
likely’, this risk of harm does not arise
‘because of’ the individual’s significant
intellectual disability.
10a + Statutory principles The best interests of the person must be the
principal consideration, and they would be
adversely affected by involuntary admission.
In the circumstances, involuntary admission
would not demonstrate ‘due regard … to the
need to respect the right of the person to
dignity, bodily integrity, privacy and autonomy.

21. Significant intellectual disability case
5b + Likelihood of The person’s judgement is not impaired.
material benefit
or alleviation
6b + If it is impaired, it is not impaired by reason of
her/his disability.
7b + Although not admitting the person could lead to
their condition deteriorating, this is not ‘likely’.
Furthermore, it is unlikely that any likely
deterioration would be ‘serious’.
8b + The in-patient treatment it is proposed to give the
patient is not ‘appropriate treatment’.
9b + ‘Appropriate treatment’ could be given as a
voluntary patient, or as an out-patient, etc.
10b + Any benefit or alleviation of the patient’s condition
arising from forced ‘reception, detention and
treatment’ is not likely to be of any ‘material extent’.
11b + Statutory The best interests of the person must be the
principles principal consideration, and they would be
adversely affected by involuntary admission, etc.

22. APPLICANT
Spouse or relative
APPLICATION
‘A REGISTERED MEDICAL
‘Authorised officer’
Member of Garda in prescribed form for recommendation PRACTITIONER’
Any other person that the person be involuntarily
admitted to an approved centre.
Cannot be a minor, member of the approved centre
concerned,
or have a financial interest, etc.
Must have observed the person within the past 48 MANDATORY EXAMINATION
hours. shall be carried out within 24 hours, by ‘a
medical practitioner’ who is not a member of
staff of the approved centre to which person is
to be admitted.
RECOMMENDATION
that person be admitted to the specified
CLINICAL DIRECTOR approved centre. Mandatory if satisfied person is
suffering from mental disorder. (In force for 7
days)
NO RECOMMENDATION (APP. ‘REFUSED’)
CONVEYANCE
A copy of the recommendation shall be given to the applicant, who ‘shall arrange’ for the
‘removal of the person’ to the approval centre specified. If the applicant is unable to FURTHER APPLICATIONS
arrange this, the clinical director (or a consultant psych acting on her/his behalf) shall, at Applicant must notify doctor of any known
the request of the doctor who made the recommendation, arrange for the person’s previous applications that ‘were refused’. Query
removal by staff of the approved centre. In certain circumstances, the Garda may be relevance because person must be examined
required to assist staff with the removal (serious likelihood of immediate and serious within 24 hours of receipt of application.
harm), in which case members of the Garda may enter premises without a warrant and
use any necessary detention or restraint.
SECOND EXAMINATION
Where a clinical director receives a recommendation, a consultant psych on the staff of the centre shall, ‘as soon as may be’, examine the person and either:
(a) if satisfied that the person is suffering from mental disorder, make ‘an admission order’;
(b) if not so satisfied, refuse to make such an order.
The psychiatrist may not be a spouse or relative, or the applicant.
A consultant psychiatrist, medical practitioner or registered nurse on the staff of the approved centre are entitled to take charge of the person, and to detain
her/him for up to 24 hours, for the purpose of carrying out this examination.

23. ADMISSION ORDER COMMISSION NOTIFIED
21 days (unless extended by tribunal for 14 or Copy of order sent within 24 hours
14+14 days)
May be extended by consultant psych. Commission assigns legal representative and
responsible for the patient’s care and treatment. directs a member of the medical panel to
During the week before the renewal order is examine the patient. S/he has 14 days within
made, s/he must both examine the patient and which to examine the patient, interview the
certify that the patient continues to suffer from consultant, inspect the patient’s records and
mental disorder. prepare a report for the tribunal.
FIRST RENEWAL ORDER MENTAL HEALTH TRIBUNAL
‘Up to’ 3 months (unless extended by tribunal for Review and decision within 21 days of the
14 or 14+14 days). Renewal procedure as before. making of the admission or renewal order.
Must affirm order if satisfied that the
patient is suffering from mental disorder
and that any failure to comply with the
statutory admission or renewal procedures
SECOND RENEWAL ORDER has not caused injustice or affected the
‘Up to’ 6 months (unless extended by tribunal for substance of the order
14 or 14+14 days). Renewal procedure as before.
Patient has 14 days to appeal.
FURTHER RENEWAL ORDERS CIRCUIT COURT
‘Up to’ 12 months (unless extended by tribunal Will revoke order if it is shown to its
for 14 or 14+14 days). Renewal procedure as satisfaction that the patient is not suffering
before. from mental disorder

24. JUDICIAL REVIEW [2008 No. 749 IR.]
SM v THE MENTAL HEALTH COMMISSIONER, THE MENTAL HEALTH TRIBUNAL, THE
CLINICAL DIRECTOR OF ST. PATRICK'S HOSPITAL, DUBLIN (RESPONDENTS) AND
ATTORNEY GENERAL AND HUMAN RIGHTS COMMISSION (NOTICE PARTIES)
Mr Justice McMahon
31 October 2008
FACTS
The patient was 36 years of age and had been admitted to St. Patrick's Hospital on
23 occasions, 15 of which were involuntary admissions.
Following her most recent admission in August 2007, her order was renewed for a
period of 12 months. Ideally, supported accommodation was the way forward for
her care, rather than involuntary admission.
SUBMISSIONS
The applicant sought a declaration that the renewal order dated the 21st May 2008
was invalid and void by reason of its failure to specify a definite duration.
The first and second respondents contended that ‘a period not exceeding twelve
months’ means ‘a period of twelve months’.

25. SM, continued …
HELD
1. The first obligation of the court is to interpret the section and give effect to the
plain meaning of the provision when it is clear. The paternalistic, purposive,
approach in not intended to rewrite the legislation.
2. A renewal order made under subs. (2) and (3) of s. 15 which does not specify a
particular period of time, but merely provides that it is an order for a period ‘not
exceeding 12 months’, is not an order permitted under the legislation and is void
for uncertainty.
3. One must not think that the skies would fall as a result of this decision. The
court’s decision does not prevent a consultant from making 12-month detention
orders where s/he deemed it appropriate. All it meant was that s/he must indicate
the specific period in the renewal order.

26. Mental Health Bill 2008
• The 2008 Bill deals with the effect of the
SM judgment.
• Unexpired renewal orders are valid for at
least five working days following the date
the 2008 Bill is enacted. During that period
a replacement renewal order may be made.
• Expired renewal orders are deemed always
t o h a ve b e e n va l i d .

27. Leave, transfers & Discharge

28. Transfers and tribunals
21.— (2) (a) Where the clinical director of an approved centre—
(i) is of opinion that it would be for the benefit of a patient detained in that centre, or that it is necessary for the purpose
of obtaining special treatment for such a patient, to transfer him or her to the Central Mental Hospital, and
(ii) proposes to do so,
he or she shall notify the Commission in writing of the proposal and the Commission shall refer the proposal to a tribunal.
(b) Where a proposal is referred to a tribunal under this section, the tribunal shall review the proposal as soon as may be
but not later than 14 days thereafter and shall either—
(i) if it is satisfied that it is in the best interest of the health of the patient concerned, authorise the transfer of the
patient concerned, or
(ii) if it is not so satisfied, refuse to authorise it.
(c) The provisions of sections 19 and 49 shall apply to the referral of a proposal to a tribunal … with any necessary
modifications.
(d) Effect shall not be given to a decision to which paragraph (b) applies before—
(i) the expiration of the time for the bringing of an appeal to the Circuit Court, or
(ii) if such an appeal is brought, the determination or withdrawal thereof.
Mental Health Act 2001, s.21

29. Discharge of patients
28.— (1) Where the consultant psychiatrist responsible for the care and treatment of a patient
becomes of opinion that the patient is no longer suffering from a mental disorder, he or she shall
by order in a form specified by the Commission revoke the relevant admission order or renewal
order, as the case may be, and discharge the patient …
(5) Where a patient is discharged under this section—
(a) if a review under section 18 has then commenced, it shall be discontinued unless the patient
requests by notice in writing addressed to the Commission within 14 days of his or her discharge
that it be completed, or
(b) if such a review has not then commenced, it shall not be held unless the patient indicates by
notice in writing addressed to the Commission within 14 days of his or her discharge that he or
she wishes such a review to be held,
and, if he or she requests that a review under section 18 be completed or held, as the case may
be, the provisions of sections 17 to 19 shall apply in relation to the review with any necessary
modifications.
Mental Health Act 2001, s.28

30. Mental Treatment Act 1945

31. 1945 Act patients
x
Section Chargeable These orders authorise the patient’s detention
171 Patient Reception ‘until his removal or discharge by proper authority
Order. or his death.’ Their treatment and detention is now
Section Private Patient to be regarded as authorised by virtue of the 2001
178 Reception Order. Act for a period not exceeding 6 months after the
commencement of s.72.
Section Temporary These orders authorise the patient’s detention
184 Chargeable ‘until the expiration of a period of six months from
Patient Reception the date on which the order is made …’ Their
Order. treatment and detention is now to be regarded as
Section Temporary authorised by virtue of the 2001 Act until the
185 Private Patient expiration of this six month period.
Reception Order.
These patients are regarded as having been involuntarily admitted under Part 2 to the institution in which
they were detained. Their detention must be referred to a tribunal by the Commission before the expiration
of the period referred to above, and the tribunal must review the detention as if it had been authorised by a
renewal order under section 15(2).

32. §4 — CONSENT TO TREATMENT
PART 4

33. Definition of ‘a patient’
‘A person to whom
an admission order
relates is referred to
in this Act as “a
patient”.
Sections 2(1), 14(1)(a).

34. Definition of consent
56.— In this Part ''consent'', in relation to a patient, means
consent obtained freely without threats or inducements,
where—
(a) the consultant psychiatrist responsible for the care and
treatment of the patient is satisfied that the patient is
capable of understanding the nature, purpose and likely
effects of the proposed treatment; and
(b) the consultant psychiatrist has given the patient
adequate information, in a form and language that the
patient can understand, on the nature, purpose and likely
effects of the proposed treatment.
Mental Health Act 2001, s.56

35. Psychosurgery
Section 58
Psychosurgery shall not be performed on a patient
unless—
(a) the patient consents in writing to the psychosurgery;
a nd
(b) it is authorised by a tribunal.
The tribunal shall review the proposal and shall either—
(a) If it is satisfied that it is in the best interests of the health
of the patient concerned, authorise the performance of the
psychosurgery, or
(b) If it is not so satisfied, refuse to authorise it.

36. Treatment not requiring consent
The consent of a patient shall be required
for treatment except where, in the opinion
of the consultant psychiatrist responsible
for the care and treatment of the patient,
the treatment is necessary:
to safeguard the life of the patient,
to restore his or her health,
to alleviate his or her condition, or
to relieve his or her suffering,
and by reason of his or her mental
disorder the patient concerned is
incapable of giving such consent.
Not apply to sections 58–60 (psychosurgery,
ECT, medication for more than three
months).
Section 57

37. §6 — MENTAL HEALTH TRIBUNALS
LAW, GUIDELINES, PROTOCOLS

38. Constitution & Administration

39. Constitution of tribunals
Statutory functions
Appointed by the Commission ‘to determine such matter or matters as may be
referred to it by the Commission under section 17.’ See s.48(1).
Membership
Three members: a practising barrister or solicitor of 7 years standing (Chairperson); a
consultant psychiatrist (including a person who has been employed as such within the
past 7 years, etc); and someone who is not a consultant psychiatrist, practising
barrister or solicitor, etc, registered medical practitioner, registered nurse, or member
of the Commission. See s.48(3), (5) and (12).
Term of appointment, renewal and removal
A member of a tribunal shall hold office for such period not exceeding 3 years.
Members whose term expires are eligible for re-appointment. See s.48(6) and (11). A
tribunal member ‘may at any time be removed … by the Commission if, in the
Commission’s opinion, … his or her removal appears to the Commission to be
necessary for the effective performance by the tribunal of its functions.’ See s.48(9).
Powers of members
At a sitting of a tribunal, each member of the tribunal shall have a vote and every
question shall be determined by a majority of the votes of the members. See s.48(4).

40. Remit
Referrals after the making
of an admission or renewal
order.
Proposals to transfer a
patient to the Central
Mental Hospital.
Proposed psychosurgery.

41. Obtaining Reports & Evidence

42. Obtaining Evidence — Directions
Directions concerning the attendance of the patient
A tribunal may, for the purposes of its functions, direct in writing the
responsible consultant psychiatrist to arrange for the patient to attend
before it. However, a patient shall not be required to attend if, in the
opinion of the tribunal, such attendance might be prejudicial to his or her
mental health, well-being or emotional condition.
Directions concerning the attendance of witnesses
A tribunal may, for the purposes of its functions, direct in writing any
person whose evidence is required by the tribunal to attend before it.
The reasonable expenses of witnesses directed to attend shall be paid by
the Commission.
Directions concerning the production of documents
A tribunal may, for the purposes of its functions, direct any person
attending before it to produce to the tribunal any document or thing in his
or her possession or power specified in the direction. It may also direct in
writing any person to send to it any document or thing in his or her Section 49(2) & (11)
possession.
General power to give directions
A tribunal may, for the purposes of its functions, give any other directions
for the purpose of the proceedings concerned that appear to it to be
reasonable and just.

43. Psychiatric reports
 The Act requires the Commission to establish a panel of
consultant psychiatrists to carry out independent medical
examinations under section 17.
 By section 17, when the Commission receives a copy of an
admission or renewal order, it must direct a member of the
panel to examine the patient, review their records and to
interview their consultant psychiatrist, in order to determine in
the interest of the patient whether the patient is suffering from
a mental disorder.
 Within 14 days, the panel member must provide the tribunal
with a written report on the results of the examination, interview
and review, and copy it to the patient’s legal representative.
 The tribunal must have regard to this report before determining
the review.
Mental Health Tribunals, Draft Procedural Guidance & Administrative Protocols, para. 3.11

44. The Hearing

45. The Hearing — statutory provisions
Duty to hold sittings when conducting a review
49—(1) A tribunal shall hold sittings for the purpose of a review by it …
(9) Sittings of a tribunal … shall be held in private.
Procedure at sittings
49—(6) The procedure of a tribunal in relation to a review by it under this Act shall, subject to the
provisions of this Act, be such as shall be determined by the tribunal and the tribunal shall, without
prejudice to the generality of the foregoing, make provision for—
(a) notifying the consultant psychiatrist responsible … and the patient or his or her legal
representative of the date, time and place of the relevant sitting of the tribunal,
(b) giving the patient … or his or her legal representative a copy of any report furnished to the
tribunal under section 17 and an indication in writing of the nature and source of any information
relating to the matter which has come to notice in the course of the review,
(c) subject to subsection (11), enabling the patient … and his or her legal representative to be
present at the relevant sitting … and enabling the patient … to present his or her case … in person
or through a legal representative,
(d) enabling written statements to be admissible as evidence … with the consent of the patient or
… representative,
(f) the examination by or on behalf of the tribunal and the cross-examination by or on behalf of the
patient … (on oath or otherwise as it may determine) of witnesses before the tribunal called by it,
(g) the examination by or on behalf of the patient … and the cross-examination by or on behalf of
the tribunal … of witnesses before the tribunal called by the patient the subject of the review …

46. Guidance and protocols
Record of the proceedings
The Chairperson shall be responsible for ensuring that a record of the
proceedings, agreed by the members, is made and s/he will be assisted in
this by a Tribunal Clerk. The Commission will provide a format for
recording proceedings.
Witness expenses
The reasonable expenses of witnesses directed to attend before a mental
health tribunal shall be paid by the Commission. Witnesses may obtain a
Tribunal Expenses Claim Form from the Tribunal Clerk or from the
Commission’s offices.
Mental Health Tribunals, Draft Procedural Guidance & Administrative Protocols, paras. 4.3, 4.5,
4.6

47. A ‘best interests approach’
‘Section 4(1) of the Mental Health Act … states that in making a decision under this
Act concerning the care or treatment of a person … the best interests of the person
shall be the principal consideration … the Mental Health Commission takes the view
that under no circumstances should mental health tribunals be conducted in an
adversarial manner. An inquisitorial approach which seeks to protect each patient’s
human rights and is governed by best interest principles, Section 4(1), is viewed by
the Commission as the most effective manner in which to conduct a mental health
tribunal.’
‘To put the patient at ease, it is recommended that where it is required that evidence
be taken directly from the patient this be done as early in the hearing as is
reasonably possible. Due consideration should be given by the mental health tribunal
to each patient’s mental health, well being or emotional condition when evidence is
being heard.’
Mental Health Tribunals, Draft Procedural Guidance & Administrative Protocols, paras. 3.5 & 3.8

48. The Decision & Reasons

49. Powers
No powers of discretionary
discharge.
No powers short of
revoking an order, e.g.
transfer or leave.
No power of discharge on a
future date.

50. Recording the decision
Prescribed Forms
The decision shall be recorded on one of the prescribed forms.
Form 8 (Decision of the Mental Health Tribunal)
Form 8 is used to record decisions of the tribunal to affirm or revoke an
admission or renewal order.
Form 9 (Decision to extend the period of an order)
Form 9 is used to record decisions of the tribunal to extend the period of
an admission or renewal order by up to 14 days.
Decisions to adjourn
The Commission has provided documentation for the tribunal to record
details of adjournments or situations where the tribunal must be
cancelled due to unforeseen circumstances …Where the tribunal decides
to adjourn this must be appropriately recorded and all relevant parties
notified. The Tribunal Clerk will ensure that the Commission is informed
of the adjournment as soon as this decision is made and arrangements
will then be commenced for the reconvened hearing.

51. Communicating the decision
Communicating the decision and reasons
18.—(5) Notice in writing of a decision under subsection (1) and the reasons … shall
b e g i ve n t o —
the Commission,
the consultant psychiatrist responsible for the care and treatment of the patient
concerned,
the patient and his or her legal representative, and
any other person to whom, in the opinion of the tribunal, such notice should be
g i ve n .
(6) The notice referred to in subsection (5) shall be given as soon as may be after the
decision and within the period specified in subsection (2) or, if it be the case that
period is extended by order under subsection (4), within the period specified in
that order.
(7) In this section references to an admission order shall include references to the
relevant recommendation and the relevant application.

52. Communicating the decision
 Decisions should wherever reasonably possible be given on the day
of the hearing and if not, as soon as possible thereafter and within
the period specified in the Act.
 The Commission will provide administrative assistance to the
tribunal in communicating its decision to the required persons.
 It is considered good practice where a patient is discharged from a
centre that appropriate discharge arrangements are put in place. To
facilitate discharge planning it is advised that in most circumstances
where the mental health tribunal decision is to discharge its will be
in the patient’s best interests to return to their ward and be
discharged from there in accordance with agreed procedures.
MHTs, Draft Procedural Guidance, Administrative Protocols, para 4.2
 All records and documentation should use suitable language that
avoids jargon and can be understood by a lay person.
MHTs, Draft Procedural Guidance, Administrative Protocols, para 3.11

53. Giving reasons
The overriding test must always be whether the tribunal is providing
both parties with the materials which will enable them to know that the
tribunal has made no error of law in reaching its finding of fact.
The patient must know why the case advanced in detail on his behalf
had not been accepted.
Proper, adequate and intelligible reasons should be given which grapple
with the important issues raised and can reasonably be said to deal with
the substantial points that have been raised.
However, the reasons for the decision cannot be read ‘in the air’.
Although the reasons may not be clear or immediately intelligible on
their face, the decision is addressed to parties, who are an informed
audience and so well aware of what issues were raised and the nuances
raised by those issues.
Nor should the reasons be subjected to the analytical treatment more
appropriate to the interpretation of a statute or a deed.
The necessity for giving reasons is often underscored by the fact that it
is often very important to know the reason why an application has been
turned down.

54. Tribunal decisions — Appeals
Section 19 of the Act lays down the provisions for an appeal against a decision of a
tribunal. Sections 19 (1) and (2) state the grounds for such an appeal and the
required period of notice;
Appeal to Circuit Court
19.—(1) A patient may appeal to the Circuit Court against a decision of a tribunal to
affirm an order made in respect of him or her on the grounds that he or she is not
suffering from a mental disorder. (2) An appeal under this section shall be brought by
the patient by notice in writing within 14 days of the receipt by him or her or by his
or her legal representative of notice under section 18 of the decision concerned.
Section 19 (16) lays down provisions for an appeal against an order of the Circuit
Co u r t .
19.—(16) No appeal shall lie against an order of the Circuit Court under this section
other than an appeal on a point of law to the High Court.
Where an appeal is initiated the Mental Health Commission shall provide the
necessary legal and administrative support to members of the mental health tribunal
for the appeal.
MHTs, Draft Procedural Guidance, Administrative Protocols, para 3.16

55. §7 — MENTAL HEALTH TRIBUNALS
PREPARING THE PATIENT’S CASE

56. Legal representation
The Commission will assign a legal representative to represent the
patient unless s/he proposes to engage one and actually does so.
More particularly, a legal representative from the Mental Health
Legal Aid Scheme is offered to each patient [and] The scheme has
arrangements in place for the patient to arrange their own legal
representative or to request a change of legal representative.
The purpose of assigning a legal representative is to enable the
patient to present their case to the tribunal in person or through
the legal representative, so that their views are articulated and any
relevant material or submissions are placed before the tribunal …
Where a patient is unable or unwilling to give instructions, the
appropriate course for the legal representative will be to listen to
the patient’s views and to articulate them in the patient’s best
interest.
Mental Health Tribunals, Draft Procedural Guidance & Administrative Protocols, para. 3.10

57. Taking Instructions

58. Formality and manner
‘Practitioners new to the field are often anxious about how they should approach and deal with people who have
a serious mental health problem. In terms of professional conduct, the principles are the same as for any client
attending the office: to serve the client without compromising the solicitor’s integrity or their overriding duty to
the court and the judicial process.
On a personal level, being able to take proper instructions, helping the client to formulate what it is he wants,
and then pursuing those objectives in a constructive way, may require more empathy than is usually necessary in
most other legal fields.
It should be borne in mind that detained patients often feel uncomfortable and disadvantaged in a formal
situation such as a interview. They may have low self-esteem since much mental ill-health takes root in such
ground ... The individual’s false belief that his opinions are of no significance is potentially reinforced by being
detained and so compelled to accept the views of others; by his subordinate status as a layman in discussion
with a professional adviser; and his status as an ill and irrational patient receiving a rational, sane, visitor …
Whatever social approach is adopted, the use of medical adjectives to define the person rather than the condition
affecting him is insulting, and akin to describing a person with leprosy as a "leper." To refer to someone as a
"schizophrenic" or as a "paranoid schizophrenic" is to imply that his personality has been so distorted by the
illness that the latter is now the feature which most tellingly defines him as a person. By implication, it is more
accurate to describe him in this way than to say that he is a person who has an illness called schizophrenia.
From there, it is quite easy for a lawyer to drift into seeing his contribution, and legal presumptions about
human liberty, as having only a marginal relevance.
To summarise, the usual principles governing the solicitor-client relationship apply and few problems will arise
provided the solicitor is courteous and avoids being patronising.’

59. Taking instructions
 It is almost always possible to take detailed instructions. If difficulties are encountered, the only
consequence usually is that a long interview is necessary (or several short interviews).
 The aim should simply be to cover the areas in as natural and conversational a way as possible before the
hearing.
 It is particularly important to be positive and reassuring at the first interview, without making false
promises. Some acute wards are very frightening places for those confined in them so the client may be
afraid and desperate to be allowed home.
 Where possible, questions at the first interview should be open-ended, information seeking, and non-
judgemental, covering general topics such as schooling, family background, physical health, ward activities,
and so forth. It is usually unhelpful to immediately probe, dissect and confront a client's personal beliefs
and attitude to treatment. Too challenging an approach leads to resentment and guardedness, and a poor
working relationship.
 It is important to persevere and to be thorough. A detailed interview avoids unpleasant surprises later. By
observing and listening to the client and others, the representative can be aware of the strengths and
weaknesses of their case, the likely content of reports and oral evidence, and any inconsistencies between
client’s account and objectives and what is observed. This enables the representative to anticipate the likely
objections to discharge, and to plan questions and submissions that cater for those eventualities.
 Developing a trust and rapport with the client will help the client to give their evidence in an intelligible and
structured way because s/he will trust the solicitor to make appropriate interventions. It also enables the
solicitor to explore the possibility of compromise in relation to medication and treatment.
 The occasional practice of tape-recording interviews with clients has little to commend it. It risks
undermining the professional relationship by seeming to compromise its confidential basis, inhibits honest
and frank discussion of sensitive subjects, and carries the additional risk of the solicitor becoming
incorporated into a paranoid construction of events.

60. Professional Ethics
THE SOLICITOR-CLIENT RELATIONSHIP
 The usual rules governing the solicitor-client relationship and a solicitor's duty to
the court apply. The following observations are by way of amplification.
PRACTISING THE CLIENT
 This practice consists of telling the client the questions invariably asked by
tribunals and medical examiners and the answers to them commonly interpreted
as pointers towards discharge. It is a form of contempt of court.
THE SOLICITOR’S DUTY OF CONFIDENTIALITY
 Many clients are willing to discuss their mental experiences more freely with their
solicitor, and the latter may be aware of mental phenomena not recorded in the
case notes or aired at the hearing.
 Whether departing from a solicitor’s duty of confidentiality can ever be justified is
disputed.
 The most common view is that a solicitor remains bound in all situations by the
normal duty of client confidentiality and by their duty not to mislead the court.
 The qualified view is that in wholly exceptional circumstances a solicitor would be
justified in disclosing something told to them in confidence. For example, if a
tribunal was clearly proceeding on the erroneous basis that there was no
immediate significant risk of suicide or homicide. The solicitor's obligations then
become similar to those of a medical practitioner as defined in the case of W. v.
Egdell: onerous but not absolute.

61. Advice of the Law Society
ADVICE OF THE LAW SOCIETY’S MENTAL HEALTH SUB-COMMITTEE (E&W)
 So far as possible, the solicitor should act in accordance with the client's
instructions, and the solicitor’s own morality or religious beliefs should not
affect this.
 The solicitor should, so far as possible, make clear to the client any limits to his
duty of confidentiality at the outset, before taking instructions.
 When placed in a situation where the solicitor has concerns as to the client's
mental capacity, and where the client may pose a risk to himself or others, the
solicitor should seek advice from the Professional Ethics division in relation to
the particular circumstances of the case.
 Where the solicitor feels it is essential to disclose information confided in him
by the client, the solicitor should advise the client that unless the client agrees
to disclosure, the solicitor will cease to act.
 That clients have the right to be heard, and for their views (however bizarre) to
be represented.
 Each case must be considered on its own merits having regard for all the facts.

62. The Initial Interview

63. The Initial Interview
1. Retrieve any old files from storage.
2. Agree the appointment with the client
and the nurse in charge of the ward. It is
sensible to verify that the appointment
does not interfere with meal-times, other
prior appointments, leave arrangements,
family visits, and therapeutic activities.
3. Check any weekend leave arrangements
if the plan is to see the client during a
Monday morning or a Friday afternoon.
INITIAL STEPS
4. Whatever the arrangements, telephone
the ward before departing for the
hospital, in order to confirm that the
patient is present.

64. On arrival
 Examine the original application or order and any renewal documents. Verify that the statutory
requirements have been complied with. Note the reasons given for invoking compulsory powers.
 Observe the environment on entering the ward. This often yields relevant information.
 On entering the ward office, examine the information on the patients’ board.
 Ask to see the notes. In England and Wales, most consultants have no objection to the patient's
solicitor reading them, and it may be ward policy to allow nurses to make them available.
 Ask to be introduced to the client and for the use of a private room. It may be suggested that a
nurse is present during the interview but the confidentiality of the solicitor-client relationship
precludes this.
 Be friendly and confident. It is impossible to over-emphasise the importance of greeting the
client warmly and confidently, approaching them with an outstretched hand. This demonstrates
a friendly and receptive approach, a determination not to prejudge the person on the basis of
facts or opinions reported by others, and a lack of any apprehension. In terms of personal
safety, such first impressions are important because aggressive or violent conduct is most often
triggered by a perception that the prospective victim is at some level a threat, or hostile, or is
susceptible to physical intimidation.
 Nursing and junior medical staff are often best placed to comment on the patient’s mental
state. It is, however, usually more prudent to speak with them after first meeting the patient and
explaining the need to discuss the facts with staff. The client will have misgivings about the
independence of a solicitor who has been chosen for them if s/he is first observed chatting
amiably to detaining nurses.

65. Commencing the interview
Explain your role and why you are there
 Begin by explaining that you are legally qualified; independent of the hospital; there to act as the
patient’s advocate, by helping them formulate and present a case for discharge; that you
therefore wish to hear how you can help; that what is discussed is confidential unless the client
wishes the point to be advanced on their behalf; and that your help is free of charge.
 Possible alternative remedies and the essential features of tribunal proceedings should then be
outlined, the client’s broad aims elicited, and legal aid forms completed.
Explaining and exploring alternative remedies
 It is important not to assume that a tribunal application is the best or only way forward. The
alternative ways of being discharged from detention must be summarised and discussed at the
outset. Where the client's concerns lie outside the tribunal's remit, the appropriate remedy
should be explained and any necessary help offered.
Explaining the tribunal proceedings
 The representative should explain that tribunals are independent bodies which exist to ensure
that citizens are not detained or liable to compulsory treatment for any longer than is necessary.
Record observations
 Carefully note the client’s mental state and behaviour. This reminds you to ask certain questions,
and to explore certain areas, later on.

66. Taking the case history
1 Basic factual information
2 Accommodation
3 Education, employment, recreation
4 Financial circumstances
5 Physical health
6 Alcohol and drugs
7 Forensic history
8 Psychiatric history
9 Events preceding admission
10 The admission itself
11 Events following admission
12 Medication and treatment
13 After-care and support

67. Basic factual information
FAMILY COMPOSITION AND FAMILY RELATIONSHIPS
 What contact does the client have with his parents and
siblings?
 Do they know s/he is in hospital and, if so, have they visited
him?
 Have they expressed any concern about her/his health or
behaviour during recent months?
ATTITUDE OF CLIENT'S SPOUSE
 Separation or divorce proceedings may be ongoing at the
time of admission. The attitude of the spouse or partner may
be that the patient cannot return home or that the children
have suffered psychologically because of the client's illness.

68. Accommodation
 When a person’s mental state is deteriorating, it
is not uncommon for rent or mortgage debts to
accrue, for problems with neighbours to arise, or
for a landlord’s property to be damaged. It is
important to ascertain whether any debts or court
proceedings are outstanding that may affect the
client’s ability to return home.
 If the client has no accommodation to go to, a
key feature of the case will be the need to
arrange housing and after-care.
 Does the client have accommodation to go to?
 Are there any rent arrears and/or possession
proceedings pending which need to be sorted out?
 Is the accommodation fit for human habitation?

69. Education, employment, recreation
Introduction
 The educational and employment history helps to define how severe
are the effects of any illness or disability. The history also points to the
likely opportunities for her/him in the immediate future, and it is a
good indicator of social and economic deprivation.
Education
 The educational history is often a good, if not totally reliable, yardstick
against which to assess their current level of mental functioning.
 It may yield information about the duration and possible causes of any
illness or relapse. Where a dementing process is suspected, it is the
relative decline that one is particularly interested in.
 A disproportionate number of detained patients will have attended a
special school for children with behavioural difficulties.
 In some cases, a careful history reveals that the individual first
experienced auditory hallucinations or other distressing phenomena at
a very early age.
 All of this information will be relevant in determining the nature of his
illness and its effect on his health.
 How well, if at all, can the client read and write?
 Is there any suggestion that their intelligence is significantly below
average?
 When did s/he leave full-time education and why? If s/he left school
early, did s/he then manage to obtain work?
 Did the client ever see an educational psychologist at school?
 Is their current level of intellectual functioning substantially below
what one would expect given their education?

70. Employment
EMPLOYMENT HISTORY
 Quite often, the pattern will be that the client has  Viewed historically, does the client’s
never been in regular employment since leaving work record reveal any pattern?
school; has not worked for many years since first  How long has s/he been in each post?
being admitted to hospital; or that s/he had a stable
employment record until perhaps a year before the  Was s/he dismissed from any jobs?
first admission.  If s/he is unemployed, for how long?
 In the latter case, there may be evidence of a decline  Has s/he undertaken any
in professional relationships and performance, employment training courses?
leading up to an indefinite period of sick leave,
 Are there currently any employment
resignation, suspension or dismissal. Sometimes
opportunities for her/him?
this is in the context of a feeling that colleagues at
work were conspiring against the client.  Has the client's situation at work,
school or college been a source of
 There is still an unfortunate tendency to regard
anxiety or worry?
people with schizophrenia as unfit for any sort of
employment or training that does not involve  Has any particular event occurred
mundane tasks such as packing boxes. However, it which has caused her/him distress?
is usually best not to advise the client to jettison  Has there been any criticism of
unfulfilled ambitions and opportunities simply her/his performance?
because s/he is or has been ill. It is not surprising
that so many able clients become disabled if they  If the client is in work, is their job at
are encouraged not to exercise their abilities. There risk because of the admission to
are worse things than relapse, one of which is to hospital? For how long is the job
lapse into invalidity. likely to be kept open?

71. Social interests
SOCIAL AND INTELLECTUAL INTERESTS
 Apart from being an interesting way of getting to know the client, discussing social and intellectual interests often provides useful
information about their mental health.
 If a person is inactive on the ward, this may reflect the limited range of available activities; that medication affects their concentration
or causes drowsiness; that s/he is depressed and has lost interest; that her/his attention and concentration are impaired by auditory
hallucinations and other abnormal perceptions; that s/he is dispirited at being detained; that s/he is frightened to participate
because of the behaviour of other patients; or that her/his interest in intellectual and social activities has declined over the years, as
institutionalisation or the negative symptoms of schizophrenia have set in.
 A limited range of social activities in the community prior to admission may have similar causes, but there are also other possible
explanations.
 A lonely existence may be due to financial or transport problems.
 If the client's social interests have always been solitary ones, this suggests a natural shyness and introversion, perhaps a sensitivity
to criticism, and a tendency to see the world as slightly hostile.
 On other occasions, it may be that the client has virtually ceased to venture outdoors at all. This may be because of apathy,
depression, stupor, agoraphobia, claustrophobia, panic attacks, the disabling effects of compulsive dressing rituals, or a
preoccupation with inner voices. S/he may have believed that neighbours or passers-by were surveying him or plotting against
her/him and have been frightened to go out, or be protecting the home from burglars, in the mistaken belief that there have been
intruders.
CLIENT'S PREOCCUPATIONS
 Details of books read in the past establish the likely extent of the client’s vocabulary. This may be relevant if it is suspected that a
degree of mental impairment is present or that he is now developing dementia.
 The subject-matter of any books or newspaper articles which s/he is reading may be illuminating. For example, whether they suggest
a morbid interest in violence or pornography or are concerned with mysticism, the occult or political conspiracies. This may lead int o
a discussion about the role of supernatural forces and political forces in the events which culminated in the client's admission.
 If the client watches television or listens to the radio, s/he may be asked if any programmes have been of particular interest or
relevance to her/his situation. It is not uncommon for someone with schizophrenia to believe that the programmes contain special
messages or signs

72. Financial circumstances
 Check the client’s entitlement to income or benefits following
discharge.
 Check whether there are significant debts. Reckless spending
leading to substantial liabilities are not uncommon during
manic phases if the client was previously creditworthy. This may
have serious repercussions for the family’s economic welfare if
it is now impossible to pay the mortgage, rent or other regular
outgoings, and the client cannot return to work.
 There may well be court proceedings on the horizon, with
summonses, or letters before action from credit control
agencies, lying unopened at home.
 Less often, there is evidence of financial exploitation. The client
may have made a significant gift to someone or have allowed
her or him control of a bank account.
 What are the client's liabilities?
 Over what period of time did these arise?
 How are the debts to be paid? Can any of the liabilities be
avoided?
 Are there any court proceedings pending?
 Is the client getting all the benefits to which s/he is entitled?

73. Physical health
 Physical health problems may be real or imaginary, and the product of a person's mental state
rather than its cause.
 A conversion symptom is a loss or alteration of physical functioning which suggests a physical
disorder but is actually a direct expression of a psychological conflict or need. The disturbance is
not under voluntary control and is not explained by any physical disorder.
 Hypochondriasis denotes an unrealistic belief or fear that one is suffering from a serious illness
despite medical reassurance.
FAMILY MEDICAL HISTORY
 The client should be asked about any serious physical health problems from which family
members have suffered, in case any of these are of an hereditary nature or have triggered his
present distress.
 Did the client have any problems with his physical health as a child or during adolescence other
than the ordinary childhood illnesses such as measles?
 Has s/he ever suffered head injuries, been unconscious, been hospitalised, or undergone an
operation?
 Did s/he notice any physical changes during the months preceding admission or during the
period preceding her/his first psychiatric admission?
 Has s/he recently been in hospital for the investigation or treatment of a physical condition?
 When did s/he last see a General Practitioner?
 Is there any evidence of malnutrition or weight-loss?

74. Alcohol and drugs
 Various conditions attributable to the
consumption of alcohol or drugs mimic
psychiatric conditions such as schizophrenia,
or may trigger such a condition in someone
already predisposed to it.
 If the client is dependant on alcohol or has
taken illegal drugs, the details must therefore
be carefully noted. For the same reasons, a
note should also be made of any medication
which the patient is or was taking for a
physical condition.
 Is there any evidence that the client was
consuming an excessive amount of alcohol
prior to admission or that s/he was taking
prescribed or non-prescribed drugs?

75. Forensic history
 The representative will require details of all previous convictions and periods in custody and the
circumstances of any offences of violence.
 The forensic history is an important indicator of the likelihood of harm to others associated with
mental disorder. If there is no apparent temporal link between a patient's history of offending
and their history of mental illness, this may lead to a classification of psychopathic disorder.
 A record of drug-related offending draws attention to the possibility of drug-induced psychosis
although, more often, the illegal drugs simply act as a trigger in someone already predisposed to
that illness.
 Two basic points must always be borne in mind when considering the forensic history.
 Firstly, it cannot be overemphasised that people with mental health problems may be
predisposed to crime as much as any other individual from the same background.
 Secondly, because diverting people away from the criminal courts is now widely encouraged, the
absence of criminal convictions does not necessarily reflect an absence of criminal conduct.
 Does the client have any previous convictions or any criminal proceedings pending?
 Has s/he ever had to be physically restrained or placed in seclusion while in hospital?
 Has any person taken civil proceedings for an inj unction against her/him, forbidding him from
having contact or entering the family home?

76. Psychiatric history
 The solicitor will need details of previous  Distinguish between objective facts and their
admissions and periods of out-patient treatment, subjective interpretation. A single patient may
and need to establish whether the patient ceased acquire many different diagnoses over time but
treatment during the weeks or months prior to the these are rarely explicable in terms of any
present admission. corresponding objective changes in their
 If there is no prior history of mental disorder, the condition. Most often, the different diagnoses
immediate biomedical aim will be to explain the reflect only different diagnostic fashions and
present (the pathology) by reference to the past practices.
(the aetiology) and so to predict the future (the  It is helpful to obtain a clear idea of the duration
prognosis). of any periods which the client has spent outside
 The purpose of taking any history is to look for hospital relative to periods spent as an in-patient.
patterns of events which have an explanatory or
predictive value. The link may be that the patient
 Is this the client's first admission to hospital?
relapses when s/he stops treatment, or that the
illness is cyclical in nature (remitting and returning  How many times has s/he been in hospital?
at definable intervals of time), or that particular  Has s/he received out-patient treatment in the
anniversaries or kinds of event precipitate periods p a st ?
of illness.
 Is there any pattern to her/his admissions or
 It may be that all or most of the patient's periods of periods of remission?
in-patient treatment are relatively short or relatively
prolonged, and the tribunal case can be planned  Does s/he have a history of stopping treatment
with this in mind. against medical advice following discharge?
 In general terms, events in the past reveal the
nature of the illness and the patient's response
both to it and to treatment. For example, multiple
admissions to different hospitals suggests an
unstable lifestyle marked by poor compliance with
after-care programmes.

77. The current admission
Events leading up to admission
Current admission The admission itself
Developments since admission
For convenience, the recent history can be dealt with in
three stages: events leading up to the admission, the
admission itself, and the developments since admission.

78. Events preceding admission
 Much of the relevant information will already be apparent from the
information about the patient’s family circumstances, accommodation,
employment history, financial position, and medical history.
 The solicitor needs to know for how long the patient has been ill, what
triggered the illness or relapse, whether s/he stopped treatment
unilaterally, and what her/his attitude was to any suggestion from family
members or professionals that s/he accept voluntary admission.
 If the client unilaterally ceased taking medication, when and why needs
to be established. Most often, the reason is that the patient thought that
s/he no longer needed it, did not want to become dependent on it, or
the side-effects were intolerable. Depending on the evidence available to
them and the degree of suffering, discontinuance may or may not have
been a reasonable risk to take at the time.
 At what point did the client’s mental health begin to deteriorate? Did
s/he stop taking medication prescribed to prevent a deterioration? Is
there any evidence that particular stressful events triggered the present
episode of illness, or were any such problems consequences not causes
of the patient’s illness?

79. The admission itself
 With compulsory admission, matters usually come to a crisis and some event occurs that
persuades family members or professionals that there is no other realistic course of action.
This may involve the police and the client’s arrest or detention; an attempt by an voluntary
patient to discharge themselves from hospital or to refuse medication; an incident of self-harm
or harm to others; serious self-neglect; complaints by neighbours; or bizarre behaviour at
home.
 It is important to identify what occurred immediately prior to the decision to invoke
compulsory powers and caused that decision to be made. If the client is not forthcoming, the
grounds recorded on the admission papers can be read to them as an aide-mémoire.
Admission initially voluntary or informal
 If the patient’s admission was originally on a voluntary basis, this may demonstrate some
appreciation of the need for assessment or treatment. However, such an admission is
sometimes more informal than voluntary. It may have been made clear that an application
would be made if informal admission was refused.
 If the original admission was informal or voluntary, the subsequent use of compulsory powers
may indicate that the patient’s mental state has deteriorated; that it is more serious than was
first believed; that a serious incident has since occurred; that different opinions are held about
the necessity of a particular kind of treatment, such as anti-psychotics, or their administration
by injection; that the patient lacks insight into their need for intensive treatment; that their
consultant lacks insight into the patient’s situation or condition; or that the consultant has
made no real effort to enlist co-operation or to achieve a compromise: the choice has never
been anything but informal or formal treatment on the consultant’s terms.

80. The admission itself (2)
QUESTIONS FOR THE CLIENT
 What events or concerns gave rise to the admission? Why do the client’s doctor or nurses say that
admission and compulsion was necessary?
 What circumstances immediately preceding the decision to invoke compulsory powers led to that
decision being taken? Did those circumstances justify the conclusion that the client was mentally
disordered and that her/his admission was justified?
 Does the client accept that s/he was mentally unwell at the time of admission and/or that s/he
needed to be in hospital? If the client accepts that at the time of admission s/he required medical
help, in what way? Why does s/he think that s/he became unwell? How would s/he describe that
illness? What were the symptoms, the exact way in which s/he was unwell? Did anything happen
before s/he came to hospital which contributed to her/him becoming ill?
 Does s/he consider that her/his mental state is now different? If so, in what way? Does s/he
consider that s/he still needs in-client treatment? If so, for how much longer? Has any one
explained why other people consider that s/he still needs to be in hospital? Do her/his parents or
relatives agree about this?
 If the client believes that their admission was unnecessary but s/he has had previous admissions,
were all of those admissions also unwarranted? If the client disputes the evidence in the reports,
what motive does s/he ascribe to the reporter for giving that account? Why would the relevant
nurse record that s/he had said or done something if s/he had not?
 Does s/he consider that s/he is now functioning at her/his optimum level? If not, in what respects
is s/he still not entirely back to her/his normal self?

81. Events following admission
Having established the general history and the circumstances that led to the use of
compulsory powers, the way in which matters have developed since admission
should be dealt with.
Subsequent events may represent a step backwards from discharge. For example,
transfer from an open to a locked ward or to a hospital which has facilities for
managing patients whose behaviour is threatening and difficult to control.
More often, the patient's situation will have improved so that discharge from
hospital or the revocation of compulsory powers are now more realistic options. If
the client was admitted to a locked facility, progress typically commences with
brief but gradually increasing periods of escorted leave in the hospital grounds;
followed by periods of unescorted ground leave and transfer to an open ward;
followed by unrestricted ground leave and periods of escorted leave outside
hospital; followed by day or weekend leave at home; followed by unlimited leave at
home subject to taking medication, attendance at out-patient clinics, and support
from a community psychiatric nurse; followed by formal discharge from hospital;
and, eventually, the discharge or expiration of the application or order authorising
his detention.
Most often, progress is not uniform and, human nature being what it is, some
failure to comply fully with leave arrangements is to be expected. A practical
approach to minor departures from the regime, such as lateness back from home
leave, is normal.

82. Events following admission
QUESTIONS
Does the client spend all their time on the ward? If so, is this by choice or because it
is a locked ward and part of their management programme?
Is s/he allowed off the ward and, if so, for how long each day? Is this with or
without a nursing escort?
If without an escort, does s/he require express permission or does s/he have a
‘general pass’ to be off the ward?
Is s/he allowed leave only within the confines of the hospital grounds or does s/he
also enjoy town leave? When the client goes into the local town, how does s/he
spend her/his time?
Has the client been granted any day or weekend leave at home? If so, for how long
has s/he had the benefit of this?
What, if any, are the conditions imposed on that leave? If the client is currently
spending all or most of their time on the ward, what is the more important goal for
her/him? To be at home, even if on section, or to be off section even if in hospital?

83. Events following admission
MATTERS UNHELPFUL TO DISCHARGE
It is crucial that the client is frank with their solicitor about such matters, and the
importance of this must be emphasised. In some cases the reports are only
available at the hearing and in other cases significant developments post-date their
preparation.
The solicitor should stress that s/he relies on the client to put in context anything
which may be construed as adverse, and in sufficient time to enable a response to
be prepared.
QUESTIONS
Has the client been restrained or placed in seclusion?
Has it been alleged that s/he has harmed her/himself or assaulted anyone?
Will it be alleged that s/he has damaged any ward property or has been physically
or verbally threatening?
Has anyone complained about her/his conduct on the ward?
Has s/he refused medication or refused to attend part of the ward programme?
Is it alleged that any untoward incidents have occurred while s/he has been on
leave? Has leave ever been revoked or cancelled as a result? Has s/he always
returned to the ward from leave at the required time? If not, for how long was s/he
away? Did s/he return of her/his own volition or was s/he returned by police or
nursing staff? Where was s/he during her/his absence? Did s/he take medication
during that period?

84. Medication and treatment (1)
 In most cases the client will be receiving some form of
medication or a physical treatment such as ECT …
Although the benefits cannot always be demonstrated,
tribunals invariably see medication in black and white
terms. It is simply a question of whether or not the patient
can be relied upon to take medication as prescribed, not
whether there are reasonable grounds for not taking the
medication in the doses prescribed. In other words, it is
not a question of whether the patient has the capacity to
come to their own decision in a rational manner but
whether or not he will comply.

85. Medication and treatment (2)
INSIGHT
 By medical custom, ‘insight’ refers to the patient’s awareness of the abnormality of her/his
experiences and the fact that their symptoms are evidence of the presence of a mental illness
which requires treatment.
 Although any person’s insight into their own or someone else’s mind can only ever be partial, the
patient’s lack of insight may often be gross and involve a failure to distinguish subjective from
objective experiences.
 The patient's view not infrequently tends towards one of two poles. Either the admission was
necessitated by malign internal forces (ill-health) or it was the product of malign external forces
(a failure to understand his situation by others, parental over-anxiety, malice, a conspiracy, and
so forth).
 Although insight is usually beneficial, because it increases the chances of compliance, it is not
essential and, indeed, may sometimes be highly undesirable. Many naturally passive, co-operative
or compliant individuals take medication without demur, without ever understanding its role, or
feeling that it is necessary. Their complete lack of insight is not considered to be a problem.
 Ultimately, it often suffices that the patient has insight into the legal if not the medical
consequences of non-compliance — s/he has learnt from experience the ‘lesson of
consequences.’
 If the patient is not willing to bow to the inevitabilities, the sensible course is to see if some
compromise concerning medication can be agreed. While a general advantage of injections over
oral medicines is certainty about whether the drug has been received, they are unacceptable for
many people. Consequently, this clarity consists only of knowing that the drug has not been
received. The real choice may be between compromising on oral medication by consent or
compulsory treatment by injection.

86. Medication and treatment (3)
QUESTIONS FOR THE CLIENT
 If the client considers that s/he is now functioning normally, does s/he still need the medication that is being
prescribed? What would be the likely effects, if any, of now ceasing medication? Would there be any risk of
their health deteriorating?
 Has the medication been beneficial in any way?
 What is the medication given for? Has its purpose been explained? What are its likely effects?
 Does the medication have any adverse effects? If so, is the client receiving further medication to control the
effects of the other medication? If that is the case, does that medication in turn have adverse effects?
 Might the client be prepared to consider taking some alternative prescribed medication? Has s/he previously
taken any medication which s/he thinks did help and which s/he was, and would now be, willing to take?
 If the client says that s/he is now well, and that s/he has not had any kind of mental health problem, then
why would s/he take the medication at all, particular if it has very unpleasant adverse effects?
 Has the client attempted to refuse the medication on the ward? If so, was the team called? If s/he is given the
medication orally does s/he swallow it or sometimes hold it under her/his tongue?
 If the client considers that s/he has been ill but is now well, what does s/he think has brought about that
improvement?
 If the section is revoked, and s/he is free to decide whether or not to take the medication, would s/he take all
of it, part of it or none of it? At the current doses or in smaller dosages?
 If the client is willing to continue taking medication on an informal basis, then for how much longer? Who will
decide that s/he no longer requires it — the client or the doctor? What if at the end of the period for which
s/he says s/he will take it, her/his doctor strongly advises her/him to continue? Would s/he heed that advice
or not?
 Does s/he have any objection to receiving the medication by injection?

87. After-care and support
 The representative should establish what kind of after-care the patient has received
in the past and what s/he would be willing to agree to if discharged from hospital.
 It may be that non-compliance with after-care services was not a factor in the
present admission, but there is evidence that the services provided were poorly
resourced, poorly planned, or poorly delivered.
 In appropriate cases, where there is little or no evidence of after-care planning, the
solicitor may consider commissioning an independent social work report.
 What support, if any, would the client be willing to accept when discharged from
hospital?
 Would s/he be willing to be visited by a community psychiatric nurse, to see a social
worker, or to attend out-client appointments?
 Would s/he be willing to see his General Practitioner periodically if so advised?
 Does s/he respect or trust the opinion of any particular professional currently or
previously involved in his care? Would s/he be prepared to accept that person's
advice about what medication and other treatment s/he needs?
 Would s/he be willing to remain in hospital as an informal patient until her/his
consultant is satisfied that appropriate arrangements had been made for her/his
care outside hospital?
 Has s/he ever discharged her/himself against medical advice?

88. The Interview — Client’s Mental State

89. Persecutory delusions
 Has the client ever had the feeling that other people were talking about them, or referring to
them, when in public? Do people laugh at her/him or denigrate her/him in some way?
 Do other people ever listen to her/his conversations, monitor their telephone calls, or interfere
with post or the contents of her/his flat?
 Has s/he ever been followed or spied upon? Are any people conspiring against her/him? If so,
was the current admission part of this conspiracy? Is her/his family or anyone at the hospital
involved in this conspiracy or presently monitoring her/his activities? Is s/he safe in hospital?
 Has anyone tried to physically harm the client? Has their food, drink or medication ever been
tampered with?
 Do other people spoil plans s/he makes and hold her/him back from achieving the success
which is due?
 Does the client believe that their thoughts, body or actions are influenced or controlled by
other persons or forces? Has anyone inserted their thoughts into the client’s mind or stolen
their thoughts? Does s/he believe that other people know what s/he is thinking or that s/he
can read their thoughts?
 Does s/he believe that any recent items on the television or radio, or in a newspaper, referred
to her/him or contained a message for her/him? Has anything else which s/he has come
across included a coded reference to her/his situation? For example, the message might be in
the form of graffiti, a car number- plate, a logo on a chocolate-wrapper, digits displayed on a
liquid-crystal display, or certain colours, a yellow shirt meaning "you are a coward."
 Is the client frightened? If matters do not improve and the threat remains, how will s/he deal
with the threats to her/his safety? Would violence ever be necessary or justifiable as a form of
self-defence? Would the client ever consider ending their own life if the suffering became too
intense? Have thoughts of suicide or violence ever been inserted in her/his mind?

90. Grandiose delusions
 Paranoid delusional beliefs are commonly associated with grandiose
delusions.
 An obvious question which arises from a paranoid chain of thought is
why the identified third party wants to harm the client?
 The ascribed motive may be jealousy or the fear of some special
talent, knowledge or power which the patient possesses … In other
cases, the patient's grandiosity may reveal itself in beliefs that s/he
has great wealth, is a person of national importance, or is related to
the royal family.
 Does the client possess any particular powers, information,
knowledge or abilities which other people on the ward do not also
have?
 If people are trying to harm her/him, why is that?
 Can s/he control what other people think or do and, if so, can s/he
give an example of this?
 Do they ever pick up her/his thoughts and act on them?
 Does the client have a decreased need for sleep?
 Does s/he spend money excessively, running up substantial debts
which do not concern her/him because of grandiose delusions about
her/his wealth or the fut ure success of plans which s/he has made?

91. Delusions of guilt
 Delusions of guilt or sinfulness are commonly associated with
depression but may also be found in cases diagnosed as
schizophrenia and in certain organic conditions. The patient feels
immense guilt for things said or done in the past. He may imagine
that he is personally responsible for some imaginary disaster or a real
misfortune which logically could not be his fault or of his doing.
Examples include a patient who believes he is personally responsible
for the suicides of other patients in the hospital (they picked up and
acted on his own suicidal thoughts); for an aircraft disaster or
earthquake; or for the death or illness of a parent. The risk of suicide
is extremely high in such cases. The patient may believe that only his
death can properly atone for these sins, that he is unworthy to live, or
that his suffering and guilt is so intense that death would be a release.
Great care must be taken to identify the risk of self-harm and details
obtained of any suicide attempts.
 Does the client feel responsible in any way for the suffering of other
people? Has he ever contemplated or planned suicide? Has he ever
harmed himself? What does he see as his good points and as being the
reasons for wanting to live?

92. The final question
Even if there is good evidence of mental
disorder, the final questions must always
be, "so what?" and "does it matter?"
More particularly, is the client or are other
people suffering as a result?
Furthermore, would alleviating the
symptoms and any gain of insight
make life more or less bearable for him as
matters presently stand?

93. After the Interview

94. General
1 Enter the information from the interview on a case summary form or in the
form of a statement.
2 Complete a time record sheet.
3 Notify the tribunal office if necessary, requesting copies of the usual reports
when they are available.
4 Submit any legal aid forms and applications.
5 Write to the client, explaining their legal position and rights, confirming their
instructions and the action taken, and setting out how the solicitor expects
the proceedings to progress.
6 Make arrangements to obtain relevant information and files.
7 Contact relatives and witnesses, where this has been agreed with the client.
8 Contact the patient’s consultant about inspecting the patient's case notes.
9 Make inquiries of about after-care facilities and discharge planning.
10 Lodge any applications or requests to the tribunal, for directions and so forth.
11 Identify the likely hearing issues and the case strategy.
12 Where appropriate, commission any reports.
13 Where appropriate, draft a written submission.

95. Develop a case strategy
GENERAL
 Subject to time constraints, taking a comprehensive statement will
usually require more than one interview.
 Once the reports are available, it will be necessary to obtain the client's
observations on them.
 S/he will need to be seen shortly before the scheduled hearing. This is
so that final preparations are made on the basis of their
contemporaneous mental state. However many times it is necessary to
see the client, and he may request additional visits, the steps listed on
the following page should be taken following the initial interview.
THE CASE STRATEGY
 Based on the diagnosis and history, and the client’s instructions, it is
important to identify the likely hearing issues at an early stage, and to
plan the case with them in mind.
 It should be readily apparent what is likely to be the medical diagnosis.
This is reached according to a simple system of pattern recognition,
and in most cases involves no real skill, the pattern of symptoms being
as obvious to a lawyer, nurse or social worker as it is to a doctor.
 Similarly, the prognosis is largely based on the history of response to
treatment so that anyone aware of that history can make a shrewd
guess as to how matters are likely to progress.
 It is also important not to be bound by very specific instructions in
terms of the preferred outcome. Secondary aims can be pencilled in,
and additional evidence gathered with them in mind, in case the
declared primary aim is unattainable.

96. Medical Reports —What to look for
The content of any psychiatric report is the product of two things: the content of the
patient’s mind interpreted by the content of the doctor’s mind.
The evidence of mental disorder consists of:
1. Facts (things actually said to or observed by the writer);
2. Inferences from these facts;
3. Hearsay (facts communicated to the doctor);
4. Inferences from hearsay;
5. Assumptions and suppositions about matters not reported or observed; and
6. Presumptions about what causes and alleviates severe mental distress.
Many matters presented as fact are nothing more tangible than suppositions or
inferences based on the assumed content of the patient’s mind.
The quality and accuracy of health service records, and of Home Office records
relating to the index offence, are highly variable and necessarily mostly hearsay. There
is often scope for hearsay gradually to acquire by virtue of frequent repetition the
status of hard fact, or for established facts to become distorted.

97. Commenting on the report
Submitting written observations on the medical report enables the issues to be
clarified and itemised in advance of the hearing.
From the patient’s point of view, it ensures that when the tribunal members
receive the report in advance of the hearing they will read it together with her/his
observations as to their accuracy, and with the benefit of any counter-balancing
points helpful to discharge.
Because medical reports do not usually advocate discharge, written observations
ensure that the tribunal members do not come to the hearing aware only of the
reasons for not discharging, with an unconscious inclination against discharge.
Early observations may also allow the medical member to be aware of the issues
likely to be canvassed at the hearing.
If the patient has difficulty communicating their opinion and feelings, or is likely
to have difficulty understanding some of the questions asked at the hearing,
perhaps because s/he is severely mentally impaired, or has a poor grasp of
English, it is also fairer to take the time to set out her/his case in writing.

98. Inadequate reports
In England and Wales, the standard of medical reports varies markedly.
Some are limited to no more than three-quarters of a page, do not include the
relevant medical history, and cannot be said to constitute a ‘full’ report on the
patient’s medical condition.
Although the authorised representative may apply to the tribunal for a direction that
a further report be provided, the preparation of the patient’s case is necessarily
hindered by a poor report unless access to her/his medical records can be agreed.
Other reports are not ‘prepared for the tribunal,’ being first written for a managers’
hearing with the original heading then changed and a brief addendum added.
Quite often, the report is written by a junior member of the responsible medical
officer's team. Although the rules do not prohibit this, the report should ideally be
counter-signed by the responsible medical officer, so that it is clear that it accurately
reflects her/his reasons for not discharging the patient.

99. The silent evidence
PROGRESS SINCE ADMISSION THE SILENT EVIDENCE
The patient was admitted to hospital While a report or case note will record
under section 3 on 1 January. He was any symptoms or signs of mental
acutely unwell, and there was clear disorder, it will not specify all of the
evidence of auditory hallucinations, questions asked and the matters
ideas of reference and passivity raised which, when dealt with, were
phenomena. On 6 January, he indicative of normal mental
thought that one of the nurses might functioning.
be an imposter. On 13 January, he That being so, a report or note may
was aggressive, verbally threatening conceal a great deal of normal mental
another patient. On 16 January, he phenomena and the greater truth is
failed to return to the ward after his sometimes to be found not in what a
30 minutes leave, and spent four report says but in what it does not
hours at home. On 19 January, he say. The representative must seek out
was distracted and was laughing and draw attention to this silent
inappropriately, no doubt in response evidence.
to auditory hallucinations.

100. Psychiatric Report (1)
 Circumstances leading to admission
Giovanna was admitted to Ward 17 ten days ago. She was escorted by six policemen and was in
handcuffs. She had stabbed her room-mate during the course of an altercation and the police had
been called. She was seen by the police surgeon who arranged a Mental Health Act assessment,
following which she was placed on section 2. She has also been charged with assault.
Mental State on Admission
She was very disturbed on admission and required emergency sedation. She was reported to have
been screaming, shouting what appeared to be abuse in Italian, and at times seemed to be
responding to visual and auditory hallucinations. One of the nurses was struck on the jaw and has
been off sick since.
Progress since admission
Giovanna settled rapidly after initial treatment with Acuphase, but continues to have episodes of
disturbed behaviour. During these she appears frightened and seeks reassurance from the staff. She
has said the Devil wants to take her away. At other times she is observed to isolate herself, and
appears to be talking to herself with her eyes closed. When challenged, she says she is talking to
San Giovanni.
Communication has been something of a problem.
Current Mental State
Giovanna remains withdrawn and spends much of the time in her room. She sleeps a lot. She
becomes quite tearful at times, saying she is a bad person. She still maintains that she stabbed her
flatmate to save herself. She no longer believes her flatmate was the Devil, but says she was
possessed by him. She says she would do the same again if she had to. She has continued to
respond to auditory and visual hallucinations, though less frequently. She does not accept that she
has been mentally ill, and takes medication reluctantly.

101. Psychiatric Report (2)
Provisional Diagnosis
F25.8 Schizo-affective illness
F60.3 Emotionally Unstable Personality Disorder
Risk Assessment
Giovanna does not show any remorse for the index offence and her lack of insight into the
psychotic nature of her illness suggest that she still presents a significant risk to her ex-flatmate.
The presence of some depressive symptomatology suggests that self-injury cannot be excluded as a
potential risk should she leave hospital prematurely.
Treatment Plan
Despite progress, Giovanna is not yet considered ready for unescorted leave. If the section remains
in place, we propose to continue in-patient care until her medication is stabilised at a therapeutic
level, and anticipate that this will take another three or four weeks.
Recommendations
… Premature discharge would place her at risk of relapse and would also put her ex-flatmate at
risk. Giovanna lacks insight and would not continue treatment on a voluntary basis.