The hope is that updated guidance for solicitors on mental health tribunals will improve the process for patients - and make it less nerve-shreddingly stressful for their families.
It’s almost seven years now since I last attended a mental health tribunal and the sheer stress of the experience is as vivid today as ever.
What prompted the memory? The Law Society recently issued a revised guidance note for solicitors on representing clients before the tribunal. The new guidance explains changes in case law, in procedural and other rules, and in the Solicitors Regulation Authority code of conduct.
It talks about communicating and taking instructions from the client; the practitioner’s duties of confidentiality and disclosure; the representation of children and young people; and good tribunal practice.
It all sounds straightforward and judicial. And yet my enduring memory of the occasion is quite the reverse.
I was lending moral support to my middle child, then 27 years old. He was hoping - after six years and eight months - to be discharged from his Home Office section, section 37/41, of the Mental Health Act.
The hearing got off to a bad start. The person who compiled the report on his state of mind had sought to save time by cutting and pasting entire paragraphs. It was a botched job, with great chunks of text clearly referring to another patient altogether. The tribunal chair was scathing.
The same chair referred to my son’s legal representative as a ‘solicitor’. She corrected him, saying she was in fact a trainee solicitor, not a qualified one. I met this news with horror, but was reassured when she explained that she was actually a qualified barrister re-training as a solicitor.
And so it went on. The doctor who was called upon to give evidence was a recent appointee to the hospital and had only met his patient once. The nurse who was his lead carer on the ward was unwell and not working that day. My son answered questions in a halting and self-deprecating way.
All this seems a far cry from the new guidance’s sober reminder that, in England and Wales, public authorities have duties under the Human Rights Act - and by extension, the European Convention on Human Rights - to ensure that detained patients have ‘effective’ legal representation.
The guidance goes on to tell legal representatives that, given the vulnerable state of mind of their clients, they should present information in a clear and straightforward manner. They should allow extra time to explain issues and, if necessary, see their clients well ahead of a hearing so as to minimise confusion on the day. And they should also ensure clients have timely access to information, such as expert reports, where necessary.
All sounds good stuff. Returning to the tribunal almost seven years ago, my son appeared sanguine about how the hearing was progressing, but I was anxious. Bureaucratic errors had been made, the panel chair was irascible and Labour’s Jacqui Smith, then home secretary, had the same reputation as her predecessors for adopting the default position of vetoing all applications for discharge from a mental health section.
We were dismissed from the tribunal room while the panel deliberated. My son and I paced the corridor, the tension so palpable I was tempted to take up smoking again. We were summoned back after just 10 minutes. A bad sign, I thought, because clearly the panel had quickly decided there was no basis to my son’s appeal.
Wrong. He was discharged from his section. Why was the tribunal chair so hostile? The barrister-cum-trainee-solicitor replied that he was covering all the angles in case the Home Office decided to appeal the tribunal’s decision.
Justice was done, my misgivings were baseless and I was grateful to everyone concerned. And so why am I whinging? Because the whole thing could have been done so much better. Why aren’t families kept in the loop? Our caring responsibilities endure long after a child is discharged from hospital.
There is the question of client confidentiality, of course. My son was no longer a minor and therefore I had no right to know his legal standing. But my family and I had suffered the trauma of seeing him descend into mental illness. We had witnessed him being admitted to and detained in hospital for years, even celebrating his 21st birthday with him on the ward. And we had supported him as he slowly ground his way back towards freedom.
Should we have been offered counselling or medical treatment? Or should an over-pressed solicitor, one being paid legal aid rates, have been induced to give freely of her time and explain - to her client’s stressed-out parents - what was happening and likely to happen as the tribunal date approached?
Jonathan Rayner is Gazette staff writer