Scottish Government

EXECUTIVE SUMMARY

Background

The Mental Health (Care and Treatment) (Scotland) Act 2003 ( MHSA) established the Mental Health Tribunal for Scotland ( MHTS) as an independent body which replaced the Sheriff Court as the forum to consider decisions about the compulsory care and treatment of those with mental health problems. A review of the operation of the MHSA is currently underway. In light of concerns about the types of disposals - particularly the number of interim orders - arising from MHTS hearings, the review is examining both the efficiency and quality of the processes for civil orders.

Aims

The study had two broad aims:

• To explore the detailed operation of the MHTS with a specific focus on processes that are perceived to have increased the number of interim orders and multiple hearings.
• To make recommendations for the future development of processes related to the making of civil orders in the MHSA, which will inform the review of the MHSA 2003.

Methods

The research comprised:

• Analysis and review of MHTS monitoring data
• Collation and analysis of costs associated with MHTS operations (administrative, local authority, health board and legal)
• Case studies in three local authority areas with in-depth face to face or telephone interviews with 14 key informants and five immediate post-Hearing group discussions with Panel Members
• A System Mapping Workshop, facilitated by an expert team of consultants from the London School of Economics which brought together key players in the MHTS.

Main findings

The operation and impact of the MHTS in practice

• The number of CTO applications received between October 2005 and December 2007 was over 3,500 which resulted in approximately 5,700 hearings ¹
• In over 50% of cases, more than one hearing was required to make a full decision on each application
• There was consensus that the new system had improved patients' experiences, and reflected the guiding principles in relation to fairness, patient focus and participation
• Concerns were raised that the system may impact negatively on the therapeutic relationship if medical carers support the need for a CTO that the patient disputes and may also be upsetting for patients
• Some venues were deemed inappropriate, affording no private space for families and patients to meet with their lawyer
• The format and mechanisms for processing of data collected for administrative purposes by MHTS and Local Authorities and Health Boards may inhibit useful analyses.

The input and impact of the range of participants who may be involved in each MHTS hearing

• The participation of the range of people other than panel members who may be required (or may wish) to attend a hearing can be compromised by the short notice of some hearings.

The processes involved in making a civil order under MHSA which may be contributing towards the high level of interim orders and multiple hearings.

• While there was a view that the number of interim orders was too high, this was seen - in part -as an inevitable consequence of the new patient-centred system
• The main reasons cited for the high number of iCTOs were the need to appoint a Curator Ad Litem (an issue which has since been resolved) and requests for an Independent Medical Report ( IMR)
• It may not be possible to conduct an IMR in advance of the hearing due to insufficient time and/or a lack of psychiatrists in a position to conduct the review
• There were some concerns that an IMR may be requested as a delaying tactic, for financial gain.

External factors which may be affecting the efficacy or efficiency of MHTS processes.

• Electronic submission of applications was inhibited by a lack of awareness of this facility and also by technical difficulties associated with electronic submission
• The administrative processes may also be hampered by the late arrival of CTO applications within the 28 day STDO period, leaving little time to fulfil the MHSA stipulation for hearings to be convened with 5 days of a STDO expiring.

The costs of the MHTS system, in total and on an individual case and hearing basis.

• The total audited costs for MHTS-related activity in 2006-07 are estimated at £12,784,909. This includes all MHTS administration costs, SLAB costs and known costs associated for the time of RMOs, MHOs and medical records staff.
• MHTS Administration costs accounted for £8,301,000, with Panel Members' fees accounting for more than 50% of the total
• Many of the costs incurred by local authorities and health boards relating to mental health tribunals are subsumed within existing budgets and, therefore, it was not possible to provide any accurate figures for how much they spend on tribunal related activities
• Local authorities currently receive an annual grant of £13 million to improve mental health services as part of implementing the MHSA 2003. The precise allocation of these funds is not known and cannot be attributed to defined areas of work (be they capital or recurrent)
• The average cost per hearing is estimated at £3,774. However, this does not include grants to local authorities and means that our estimates are likely to be an under- representation of the true costs.

Recommendations

The recommendations are drawn from the research exercise and also from the System Mapping Event which was attended by a range of participants involved in MHTS and its operations.

Improving systems for monitoring and audit

• Ensure that the data are processed in a format that allows statistical analysis of key variables in relation to information that is not currently accessible in a format for statistical analysis, such as diagnosis
• If a more informed picture of health board and local authority costs are required, there is a need to develop systems for recording time and costs associated with Tribunals.

Improving systems for the submission and processing of CTO applications

• Revision of the application form to make it more user-friendly and to avoid repetition
• Improve mechanisms for submission, so that applications can be submitted by email, ensuring that all relevant parties are aware that they can submit electronically
• Pre-tribunal preparation and screening by MHTS to facilitate earlier identification of errors or omissions, or the need for a Curator Ad Litem, legal representation and an independent medical report
• Consider whether variations to CTO need to be heard at a hearing or whether that can they be dealt with more efficiency by paper
• Where an appeal is lodged against a CTO, the papers from the original application should be made available to the appeal Tribunal. The report for that hearing should then describe the case history since the last hearing/ decision.
• The appointment of the Curator Ad Litem before the first hearing could reduce the number of interim orders and reduce costs, time and effort, but requires a decision about who has the financial responsibility for the appointment.

Dealing with the consequences of the legal / evidential nature of the tribunals

Consider ways in which the possible negative impact on the therapeutic relationship of legal requirements to cross examine might be minimised, including:

• Avoidance of repeated oral hearings in which the reasons for a patient's detention are reiterated
• Replace RMOs' full reports with a brief statement indicating that each of the 5 criteria have been met. (The RMO is present for the hearing and so could elaborate if necessary)
• Consider whether all patients coming to Tribunal should routinely have an independent medical opinion. The increase in efficiency and reduction in interim treatment orders would more than compensate for the increased report-writing.

Training and capacity

Some of the actors in the MHTS process may contribute to delays or confusion because they do not fully understand the law or complete the forms as intended. There is a need, in the first instance to:

• Review the training that is available and its take-up, both for those coming new to the process and as a 'refresher'
• Consider ways in which understanding the roles and perspectives of other participants might be facilitated
• Improve understanding of the role of the Named Person
• Increase number of MHOs, particularly in geographically widespread areas; and political commitment to organise and pay for out-of-hours MHO cover
• Address the real deficit, particularly in rural areas, in the number of lawyers skilled and enthusiastic to represent clients at Tribunals and psychiatrists to conduct IMRs
• There is a need to encourage a greater number of lawyers to undertake mental health work and to provide training as part of that process
• Increase efforts to recruit and train more members of the public, service users and carers to be panel members.

The Act and MHTS

Finally in relation to the terms of the Act itself and its administration:

• Increase the duration of the STDO 42 days to allow improvements to patients' response to treatment to become manifest
• Consider extending the five day period of grace to give the administration more time to process the application and organise a hearing, and therefore, address the problems associated with the current short notice for hearings
• Merge the MHTS with all Scottish tribunals into one body. This could enhance staff opportunities, venues could be shared and therefore be closer to where people live, and better use would be made of clerk and clerk assistant time.