Nigel Turner's HyperGUIDE to the Mental Health Act

Managers' Hearings

Why Hearings are Held

The Mental Health Act Managers [MHAM] have a power under Section 23 to discharge from Section, people who are detained in hospital (although not in cases where Section 41 restriction orders exist, including many cases where transfer directions have been used to admit prisoners to hospital under Sections 47/48/49, nor in respect of people who are still under the jurisdiction of a Court under Section 35, Section 36, or Section 38).

The Act itself gives virtually no guidance as to how the MHAM should respond to this power, but it clearly follows that the MHAM should arrange to review people's detention under the Act. It is also uncontroversial that the MHAM should pay some regard to the conditions which the Act sets out for admission in the first place, under whichever Section is in use. However, if those conditions are still met, the MHAM could nonetheless decide to end the Section. Similarly, if the conditions are not met, the MHAM can decide that the Section should continue.

In practice, the MHAM normally make arrangements to hold Hearings:

• when an Appeal to the Managers is made (unless there has been a recent hearing and the MHAM are satisfied that the circumstances considered then are unchanged in all important respects). The term appeal is used in everyday language, but sometimes this will be referred to as an application to the Managers to use their power of discharge.
• when a Section 20 renewal is proposed. Even though the person detained may not have appealed against detention, the Mental Health Act Managers often hold a similar hearing to an appeal hearing, when a Section 20 report is received from the Responsible Medical Officer.
• when a Nearest Relative's order to discharge is barred by the Responsible Medical Officer.

The Code of Practice aims to fill the gap left in the Act itself, by giving some general guidance to Mental Health Act Managers. In particular the Code lists seven necessary considerations regarding Manager's review hearings. These are listed below, with examples/suggestions in note form (not from the Code), of how the Managers might address each item.

Matters to be Considered for Review Hearings

1. To balance the informality and gravity of the task, which is to consider if continued detention is justified
   • Use a quiet venue, on "neutral territory" if possible (e.g. not the RMO's office).
   • Have a member of staff present to see people in and out, take notes, generally assist.
   • Give thought to the physical lay-out of the room. Sitting behind a large table could be intimidating for the patient. Perhaps sit in a circle. Are there sufficient chairs for everyone who may attend?
   • Make introductions by name when people enter the room. In case of the patient, use formal address initially, then ask whether patient minds / would rather be called by their first name.
   
   
2. To help the patient explain why she/he wants compulsory detention to end
   • Explain the process: the order in which people are to be invited to speak, when there will be opportunities for questions, when a break could be taken, etc.
   • Establish whether patient has had opportunity to see RMO's, social worker's, and any other written reports. Is the patient starting with the same information as everyone else?
   • Don't be afraid to ask the patient relevant questions, or to probe ("We have been told that last week you punched a nurse in the face for no apparent reason: is that right? - can you tell us your side of what happened?"). The patient has crucial information to help the Panel make its decision; the Panel is doing the patient no favours by asking excessively "safe," or leading, questions. As long as questions are relevant and respectfully and sensitively put, there is rarely any problem.
   • Possible questions:
     • would you remain in hospital for assessment/treatment as a voluntary patient?
     • what would you do if taken off the Section today?
     • describe your home / living arrangements / support?
     • are you willing to comply with follow up (Out Patients' Clinic, Community Psychiatric Nurse, Day Services, etc.)
     • what do you think about the medication / programme on offer?
     • ... and a question to judge what insight the patient has into their mental health needs. ("We have a report from your doctor which suggests that you have quite serious mental health problems which require you to be assessed/treated in hospital: how do you see your problems?)
   
   
3. To allow the patient to be accompanied by someone of her/his choosing
   • Welcome friends, relatives, advocates, solicitors, barristers. Make sure they understand the purpose and process of the hearing.
   • Ensure that the patient is not unwillingly silenced by having someone speak on her/his behalf.
   
   
4. To ensure that the Responsible Medical Officer and other professionals are actively and positively questioned
   • It will normally be appropriate to rely heavily upon the RMO's clinical judgement as to whether the patient is suffering from a mental disorder.
   • In considering the "nature and degree", it necessary to be informed of other matters which might contribute to the patient's emotional or psychological distress, e.g. bereavement, divorce or the break up of a long-term relationship, homelessness, diagnosis of a life-threatening illness, recent childbirth or termination of pregnancy, loss of a job, abuse of alcohol or drugs: there are many examples.
   • In such cases the Panel may wish to explore, through questioning of the RMO and others, the components of the patient's emotional and psychological distress in order to come to their own view of the nature or degree of the underlying mental disorder. All information they receive about patients is to be treated in confidence. The more relevant information the Panel receives, the better the quality of the decision they will make. All information received about patients is to be treated in confidence. The more relevant information the Panel receives, the better the quality of the decision they will make.
   • Where detention is for treatment, the Panel needs quite detailed information about treatment plans. In extremis, if the patient were receiving no treatment, detention for treatment could hardly be justified. In most cases the areas the Panel would wish to examine would include:
     
     • the efficacy of the treatment and the patient's prognosis
     • the understanding, consent and compliance of the patient
     • the feasibility of delivering the treatment in the community rather than in hospital, or on an informal basis in hospital
     • the effect on the patient or others if the treatment were not delivered
     • plans to continue to provide services under Section 117.
   • The Panel should satisfy itself that the treatment plan appears to them to be an adequate basis for detention for treatment. The treatment plan would normally be the product of a multi-disciplinary team. The term "medical treatment" does not just mean medication, but might include counselling, input from a psychologist, art therapy, group work, training in daily living skills, etc.
   
   
5. To ensure that the Nearest Relative, and/or other concerned relatives/friends are given the opportunity to let their views be known
   • Unless the patient objects, the relevant people should be invited and given as much notice as possible. If the patient does not want them to attend, a professional member of staff should seek their views and feed these back to the Panel.
   • Information should be provided for the relatives/friends who have been invited, to explain what the hearing is for and how it will be conducted. Otherwise the person attending may be unduly anxious, or try to use the meeting to raise other issues not pertinent to the decision in hand.
   
   
6. To enable the patient and the other parties to hear each other's accounts and to put questions to each other, if the patient so wishes
   • Many hearings are held "in the round" with everyone present throughout. It may be an emotionally charged environment, and the chair of the Panel needs to pay attention to ensuring everyone leaves feeling they have had their say and their questions answered. Sometimes this is achieved by letting the hearing "go with the flow" at times, but a basic structure needs to be maintained.
   • If the patient wants to have the hearing in some other way, then this should be considered - for example, with the patient present throughout, but with the professionals coming in individually and then leaving, rather then all being in together.
   
   
7. To ensure that the outcome of the Hearing is communicated immediately, orally and in writing, to the patient, and to the professionals and relatives involved
   • It is necessary to check where the patient will be when the decision is made. Depending on the facilities available, it may be appropriate for the patient to be called back in to be told the outcome, or for some or all of the panel members to visit the patient on their ward to inform them of the outcome.
   • It is vital that the staff in charge of the patient's care are told the outcome speedily. If the Section has not been ended, the patient may be very upset or angry and need additional support. If the Section has been ended, the staff need to know that they no longer have the power to detain or treat the person against their will.
   • If the Section is not lifted, the patient needs to be reminded of her/his rights of appeal to the Mental Health Review Tribunal.