Playing mind games

The government has prescribed a new Mental Health Act.

But among specialist lawyers, concerns abound that patients' rights are being eroded, reports Nicola Laver

Aconference held late last year launched an initiative for solicitors to play a major role in helping clients with mental health problems get access to justice (see [2001] Gazette, 8 November, 5).Lawyers, the Legal Services Commission (LSC) and user representatives will publicise the availability of legal advice services in the Yorkshire and Humber region.The pilot initiative, discussed at the conference - which was held in Harrogate - is timely as mental health is a practice area on the threshold of change.'We are about to enter into a new era in mental health law,' says Peter Edwards, of Peter Edwards Law in the Wirral, who has a large mental health practice.

He says: 'We currently have a system that discriminates against patients.'This trend is being reversed by case law and - in the next two to three years - the introduction of a new Mental Health Act.When the Act was announced in December last year, the government said that current laws have failed properly to protect the public, patients or nursing staff.

It will represent the biggest shake-up in mental health legislation in four decades and will incorporate two main areas of change - a new legal framework and a change in the treatment of high-risk patients.

Because the Act is not yet in force, Mr Edwards says: 'The consequences are that we are going to have to come to terms with the state putting into practice the relationship between the Act and human rights law, and my experience is that there are many mental health practitioners who don't seem to have fully appraised the Human Rights Act and the consequences for their clients, so they are not going to get the representation they need.'He adds: 'Since the 1959 [Mental Health] Act, we have become far too complacent, and too many allowances have been made so patients haven't had the representation they deserve.

We have had to put up with systems which would not be acceptable in any other area of legal practice.'For example, he says, people who are sectioned are entitled to appear before a mental health tribunal.

The law has said the onus is on patients before this tribunal to prove they no longer suffer from a mental disorder and should be discharged, when any reasonable person would say it should be the other way round, he argues.To Mr Edwards' satisfaction, a recent Court of Appeal ruling - Re (H) v Mental Health Review Tribunal for North East Thames Region [2001] 3 WLR 512 - has reversed this 'double-negative' principle on the basis of article 5 of the Human Rights Act (the right to liberty).

In future, the onus will now be on the institution to prove that the patient should not be discharged.Mr Edwards says: 'The implications are that those representing the state - that is the hospitals and psychiatrists - will have totally to rethink the way they present their case to a tribunal.'The Law Society's mental health committee wrote to the government encouraging it to change the Mental Health Act 1983 in light of the case, calling for the Act to be made compatible with the European Convention on Human Rights.

Vice-President Carolyn Kirby, who also chairs the Society's mental health and disability committee, says: 'When the committee was originally consulted, the matter was being treated by government as "non-urgent".

We wrote to [Parliament's] joint committee on human rights urging that legislation determining detention and treatment should be dealt with as a concern of the highest priority.' Subsequently, a remedial order has been made.Another example Mr Edwards gives of the existing unsatisfactory state of affairs is that if a party is disputing evidence in any other court of law, the other person can be called upon to be cross-examined.

However, at a mental health tribunal, Mr Edwards says: 'We have put up with a system where the doctor just says what his evidence is but there is no right to cross-examine him.'This is contrary to the Human Rights Act, which gives a person the right to a fair trial.

Mr Edwards says: 'This makes us take a step back.

But I don't think that people from my profession have been assertive enough in this respect.'Ashley Irons, head of the mental health department at London firm Reid Minty, agrees that human rights are important and emphasises that they are quoted in every single judicial review.

The case of R (Wilkinson) v Responsible Medical Officer, Broadmoor Hospital and others; CA: 22 October 2001, for example, illustrates how European Convention principles are having an impact on day-to-day clinical practice.Here, the claimant applied for judicial review after he was refused an order that a hospital's two doctors together with his own should attend a hearing to give evidence and be cross-examined.The court allowed the claimant's appeal, and held in particular that the patient could require the hospital's medical witness to attend for cross-examination, where it was to be decided whether a course of treatment infringed a patient's human rights.Mr Irons emphasises that the implications of this are hugely significant: 'What it means is that poorly paid second-opinion doctors on the Mental Health Act Commission Panel will think twice about attending to give a second opinion, knowing that they may be called to be cross-examined at a later date.'Ms Kirby says: 'This case raises interesting questions concerning the remit and function of judicial review.

The Leggatt report on tribunals and the White Paper Reforming the Mental Health Act suggest that government policy is moving towards a restriction of the availability of judicial review.

Here, we have the Court of Appeal clearly saying that "super-Wednesbury is not enough", and that an appellant whose human rights may be impinged is entitled to a proper hearing on the merits, including oral evidence and the cross examination of witnesses.'Clare Doherty, legal adviser to many NHS trusts and a partner at Hill Dickinson in Liverpool, maintains that the judgment is incompatible with the requirements of the Mental Health Act 1983 (where treatment is permissible if recommended by the second opinion doctor) and, consequently, 'doctors may be left in a dilemma as to whether to apply the standards imposed by the judgment or whether to apply the Act in the usual way'.She is also concerned that the court held that doctors could be cross-examined on the opinions provided - a departure from the usual approach in judicial review cases.

She says: 'I am concerned that if there is an increase in cases such as this and oral evidence is heard, then naturally a backlog of cases may arise.

This may cause problems for patients and doctors alike.' She says a possible solution may be the introduction of some form of appeals mechanism.She stresses: 'A message that comes across for practitioners is that there needs to be extremely careful preparation of cases.

The field of mental health is one which is ripe for challenge under the Human Rights Act.

Particularly, I believe there will be more cases in relation to patients in secure hospitals.'Mr Irons adds: 'It must be remembered that patients are assumed to have capacity unless there is convincing evidence to the contrary.' This principle has been under threat, and Wilkinson re-emphasised the importance of capacity being considered.Andrew Parsons, head of health group at London firm Radcliffes, endorses the view that human rights are having the most impact in this field.

He says: 'The area of most debate at the moment seems to be article 8 [right to respect for private and family life] and issues around closing wards and homes, and patients' rights.

While clearly there is a need to deal sympathetically with this, it can cause upset for patients to be involved in litigation and for the NHS to have severe operational difficulties.'However, he adds: 'Generally, the White Paper proposals will only work if there is a massive injection of cash into the system to provide enough staff and psychiatrists to get the tribunal responding quickly - I fear that will not be done and there will be delays or poor quality admin.'One thing seems certain, the tribunal will find that solicitors will be keeping it on its toes, even if there is nobody else to do so.Nicola Laver is a freelance journalist