Streamlining the First-tier Tribunal (Mental Health). Will it promote justice, fairness and patient rights?

Many detained patients in England exercise their legal right to challenge their subjection to the compulsory provisions of the Mental Health Act 1983. Those patients that that do not, will nevertheless have their cases referred periodically for judicial scrutiny. In England these cases come before the First-tier Tribunal (Mental Health).

Central tenets of the Tribunal system are that it operates justly and fairly, is accessible and impartial, and safeguards the rights of patients. Practices and procedures which in the past have been found to be unlawful, for example by failing to determine the cases of detained patients sufficiently promptly, have led to reform undoubtedly to the benefit of patients.

The annual rise in the number of detained patients in England is increasing Tribunal workload. One approach to meeting demand is to increase the number of Tribunal panel members but the Tribunal, with its three member panel, is already very costly to administer. In times of austerity, streamlining measures are financially attractive and can facilitate the speedy determination of cases. Many perceive these motivators to be driving the proposals for Tribunal reform rather than the interests of justice, fairness and the promotion of patient rights.

This paper critically examines the potential impact of a Tribunal system adopting the consultation proposals of single member panels, increased paper reviews and infrequent pre hearing examinations. It questions whether such approaches will safeguard patient rights, including patient participation, and promote justice and fairness. It argues that an absence of human qualities in the Tribunal may lead patients to perceive it as little more than an administrative process, rubber stamping the decisions of Responsible Clinicians.