APPEARING BEFORE THE MENTAL HEALTH TRIBUNAL

1. APPEARING BEFORE THE MENTAL HEALTH TRIBUNAL

2. Index The Provisions of the Act relating to Tribunal hearings 3 – 6 What is Evidence 7 Section 24 Continuing Care Orders 8 - 16 The Tribunal’s function in reviewing the Order 9 What evidence is needed to satisfy the Tribunal of the s24 criteria 10 - 14 How does the Tribunal determine the level of risk 12 What evidence is needed of the least restrictive alternative 15 – 16 Section 40 Community Treatment Orders 17 – 23 The Tribunal’s function in reviewing the Order 18 What evidence is needed to satisfy the Tribunal of the s40 criteria 19 - 24 How does the Tribunal determine the level of risk 12 What evidence is needed of the least restrictive alternative 25 - 26

3. Section 24 24. A person may be detained as an involuntary patient in an approved hospital if – • (a) the person appears to have a mental illness; and • (b) there is, in consequence, a significant risk of harm to the person or others; and • (c) the detention of the person as an involuntary patient is necessary to protect the person or others; and • (d) the approved hospital is properly equipped and staffed for the care or treatment of the person

4. Section 40 40. A community treatment order may be made for the treatment of a person only if • (a) The person has a mental illness; and • (b) There is, in consequence, a significant risk of harm to the person or others unless the mental illness is treated; and • ( c) The order is necessary to ensure that the illness is properly treated; and • (d) Facilities or services are available for the care and treatment of the person

5. The Least Restrictive Alternative For The Patient Section 7 of the Act requires that: In exercising powers conferred by this Act in relation to an involuntary patient, the following principles must be observed: • restrictions on the liberty of the patient and interference with the patient's rights, dignity and self-respect must be kept to the minimum consistent with the need to protect the patient and others; b) effect must, if practicable, be given to the patient's wishes so far as that is consistent with – (i) the patient's best interests; and (ii) the need to protect the patient and others.

6. Bound by the Rules of Natural Justice Section 56 of the Act states the Tribunal is bound by the rules of natural justice.   • These rules require: • That the Tribunal is fair; • That unless there is a substantial risk of harm to the patient or others, were the material disclosed, it does not operate upon material of which the patient is not aware; • It gives all parties an appropriate chance to participate in the hearing; • It gives all parties an opportunity to comment on material upon which it intends to base its decision.

7. The Evidence • The Tribunal will need to hear evidence from a person who has had the care of a patient and who is qualified to express a view on each of the section 24 or section 40 criteria. • This need not be the same person. • The evidence will need to be sufficient that in relation to each criteria the Tribunal can state that it is more likely than not that the criteria are fulfilled.

8. Section 24 Continuing Care Orders

9. Review of a Continuing Care Order When the Tribunal reviews a Continuing Care Order their role is to ensure that at the time of the hearing:- • The section 24 criteria are fulfilled; • The detention of the person as an involuntary patient is the least restrictive alternative for the patient after balancing the patient’s right to freedom with the public’s need for safety.

10. The Person Appears to Have a Mental Illness • To satisfy this criteria the hospital will need a person to give evidence of the symptoms recently displayed by the patient and what recognised mental illness these symptoms are usually associated with. • This evidence should be given in written or oral form by a psychiatrist or a psychiatric registrar who has observed the patient’s symptoms. • It is important that this evidence comprehensively describes both the positive and negative symptoms that led to the patient’s admission on this occasion. • The clinician should point out to the Tribunal the negative symptoms which although not evident to the Tribunal at the hearing are present in the patient, such as lack of motivation, poor concentration and social withdrawal. • Parliament has used the word ‘appears’. It does not require florid or active symptoms to be present at the time of the hearing.

11. In Consequence A Significant Risk Of Harm Harm: • Harm is defined in section 3 as including serious mental or physical deterioration. •  Harm can be mental, physical, financial, social, to employment, to a relationship, to the person or to another person Risk of Harm: • The risk that this harm will occur must be because of the mental illness • The risk that the harm will occur must be significant • ‘Significant’ has the ordinary English meaning: major, noteworthy, momentous

12. How Will the Tribunal Determine the Risk of Harm?  The best predictor of the future is the past. In order to assess risk the Tribunal will look at the patient’s past behaviour. In order to gauge whether the behaviour is a consequence of the mental illness, and the degree of risk that the behaviour will re-occur, the Tribunal requires evidence of:- • The current clinical situation of the patient, including insight, attitude and current symptoms • The factors which will impact upon the patient on discharge, including treatment plan and level of support, level of compliance, stress of living in the community and the presence or absence of stress factors which have in the past led to an episode of illness • A key factor which the Tribunal will take into account is the likely timing of the re-occurrence of the behaviour. That is, is the risk imminent, or are we looking at a harm that may happen in 12 months time?

13. The Detention Is Necessary To Protect The Person Or Others • The detention must be necessary not just advisable.  • It must be established that the person or others could not be protected in any other practicable manner.  • That the detention will in fact afford protection from the harm.

14. Care or Treatment of The Person The Approved Hospital Is Properly Equipped And Staffed For The Care Or Treatment Of The Person: • This requires evidence that the hospital can provide either care or treatment for this particular patient. • It does not require the hospital to establish both. It would be sufficient that the hospital is providing care, that is a bed, food,looking after the patient’s physical needs without showing that they are providing any form of treatment for the patient.

15. Least Restrictive Alternative In order to determine if the order is the minimum consistent with safety, the Tribunal requires evidence: • That the patient cannot be a voluntary patient • In respect of a Continuing Care Order that the patient would not comply with a Community Treatment Order.

16. Evidence Of Least Restrictive Alternative The following are the types of evidence that the Tribunal will consider when looking at the least restrictive alternative. In any particular case however it will depend on the context of these occurrences whether they are in fact indicative of another less restrictive alternative not being in the interests of either the public’s or the patient’s safety.  • The patient has stated that without an order he would not comply with the treatment plan. • The patient has attempted, or has in the past absconded from the hospital. • The patient is still unwell and is stating that he will leave the hospital.

17. Section 40 Community Treatment Orders

18. Review of a Community Treatment Order When the Tribunal reviews a Community Treatment Order their role is to ensure that at the time of the hearing • The section 40 criteria are fulfilled; • After balancing the patient’s right to minimum interference and the need to protect the patient and others the order is the least restrictive alternative in ensuring that the patient’s illness is properly treated

19. The Person Has a Mental Illness • To satisfy this criteria the treating team will need a person to give evidence that the person has been diagnosed as suffering a mental illness. • This evidence should be given in written or oral form by a psychiatrist or a psychiatric registrar who has observed the patient’s symptoms.

20. There is, in Consequence, a Significant Risk of Harm to the Person or Others Harm: • Harm is defined in section 3 as including serious mental or physical deterioration. •  Harm can be mental, physical, financial, social, to employment, to a relationship, to the person or to another person Risk of Harm: • The risk that this harm will occur must be because of the mental illness • The risk that the harm will occur must be significant • ‘Significant’ has the ordinary English meaning: major, noteworthy, momentous

21. How Will the Tribunal Determine the Risk of Harm?  The best predictor of the future is the past. In order to assess risk the Tribunal will look at the patient’s past behaviour. In order to gauge whether the behaviour is a consequence of the mental illness, and the degree of risk that the behaviour will re-occur, the Tribunal requires evidence of:- • The current clinical situation of the patient, including insight, attitude and current symptoms • The patient’s level of compliance with treatment in the past • The level of support and services offered to the patient in the past • A key factor which the Tribunal will take into account is the likely timing of any issue arising with compliance. That is, is the risk imminent, or are we looking at a harm that may happen at some unknown point in the future?

22. Unless the Mental Illness is Treated There is, in consequence, a significant risk of harm to the person or others unless the mental illness is treated • The Treating Team do not need to establish that at the present time there is a significant risk of harm to the person or others • They have to establish however that that level of risk would be present were the mental illness not treated

23. The Order is Necessary to Ensure that the Illness is Properly Treated • The order must be necessary not just desirable • It must be able to ensure proper treatment • Proper treatment is treatment that reduces the patient’s symptomatology, reduces the risk of harm to themselves or others, has regard to the patient’s dignity and self respect and autonomy, and does not produce side effects that significantly hamper the patient’s ability to interact in the community

24. Facilities or Services are Available • The treating team must establish that the facilities or services for the proper treatment of the patient are in fact available for that patient. • They will need to give evidence of the way in which the patient will be cared for in the community, where and from whom will they receive their treatment, who will ensure compliance, who will assist the patient with life stressors that have previously led to a deterioration of their mental state, and what supports are available to the patient

25. Least Restrictive Alternative In order to determine if the order is the minimum consistent with the illness being properly treated, the Tribunal requires evidence: • That the patient cannot be a voluntary patient • That the illness cannot be properly treated without an order

26. Evidence of Least Restrictive Alternative The following are the types of evidence that the Tribunal will consider when looking at the least restrictive alternative. In any particular case however it will depend on the context of these occurrences whether they are in fact indicative of another less restrictive alternative not being in the interests of either the public’s or the patient’s safety.  • The patient has stated that without an order he would not comply with the treatment plan. • The patient has in the past failed to comply with proper treatment. • The patient without proper treatment is likely to become a significant risk to himself or others.