Are redacted FFR decisions of mental health tribunals available for inspection by the public, preferably online? If available online, where can they be found? If available offline, to whom can an application be made to inspect them?
I guess that you are from Scotland, as I found some āfull findings and reasonsā of the MHT for Scotland by searching online.
Iām not aware of any published decisions of the MHRT for Wales. It rarely even publishes its policies.
Two types of MHT decision have been published in England: decisions arising from public hearings (Re Ian Brady [2013] MHLO 89 (FTT) and Re Albert Haines [2011] MHLO 169 (FTT)), and some review/reconsideration decisions on points of law which do not involve information about the case. They can be found on Mental Health Law Online here: First-tier Tribunal decisions.
The Court of Protection is much less secretive and regularly publishes judgments. Those have a different focus but sometimes cover similar ground, e.g. A Midlands NHS Trust v RD [2021] EWCOP 35 (MHA treatment for anorexia), Birmingham City Council v SR [2019] EWCOP 28 (conditional discharge) and Sunderland City Council v AS [2020] EWCOP 13 (CTO).
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Thank you Jonathan. Yes I am in Scotland. I am aware of the selected decisions on the MHTS website and am in correspondence with the Presidentās Office about getting more published.
It is FTT decisions in England/Wales that I am looking for, in order to investigate how FTTs make their decisions - ie how they apply the statutory criteria and other laws and legal principles and balance the evidence presented to them. So the decisions on points of law are not likely to be useful to me, and the COP decisions are not a substitute - but I shall check them both in case thereās something for me to learn there.
I take it that you are giving an authoritative answer, that official policy is not to publish redacted) decisions which were held in private. I have not come across anything to suggest otherwise.
Weāve also been very concerned about the complete lack of transparency in FTT(MH).
They must be the only legal proceedings where the public are not allowed to know the name of the judge, or what has been decided. The public canā't even tell if they are conducted fairly.
We have written of some of our concerns here.
Iād certainly be interested to hear if you make any progress.
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Why should the public be entitled to know about the private affairs of patients?
The Mental Health Tribunal donāt exactly discharge people willy nilly without any consideration, evidenced by the falling discharge rates.
In restricted cases where violence or sexualised behaviour is a concern there will be a victim liaison officer most of the time so those who ought to have some sort of knowledge and the opportunity to make representations
In your article you refer to a study about patients āreleased from high secure hospitalsā having a 38% reconviction rate. That study is nearly 20 years old, itās hardly reflective of current tribunal approches is it? Very few people are āreleasedā from high security
You also refer to 527 restricted patients being discharged and 264 being recalled for āsomething serious happeningā. This is irresponsibly misleading, those 264 recalled are a small percentage of those subject to s41 restrictions in the community.
The āsomething serious happeningā is also a misnomer. Countless mental health lawyers will confirm that patients get recalled for trivial reasons that have absolutely no relation to their mental health.
I have represented patients for nearly 20 years and in that time I can count on one hand the number of patients who have been discharged conditionally and have commited a further serious offence.
Thatās very interesting Julian, and could be useful to me.
Actually my concern is the opposite - people who get sent to high secure hospitals for assessment when places in low secure are not available. The restrictions of high security make them worse - this happens particularly for autistic and learning disabled patients. They become restricted patients for minor offences such as resisting when restrained. They become āentrappedā - unable to get out - because they have to prove they are not a danger to anyone - instead of being presumed innocent like the rest of us - and when they do win an appeal against excessive security they cannot move to a lower level because there are no vacancies for them to go to.
I agree with Rob. I have work in the Forensic services for over 30 years, 20 years in Med Security. The figures for reoffending for Mentally Disordered Offenders is around 5%. I training many professionals on this subject and particularly raise issues relating to victims such as those subject to DVCVA 2004 including VLOs and Victims rights to make representations to FTT.
I also promote on my training the importance of One Hundred Families, particularly focusing the geographic areas of England and Wales.
I am more than happy to provide a free one day training to those from One Hundred Families which I currently provide to Clinical/Social Supervisors, nursing and social work staff.
You can find the latest reoffending rates at the National Offender Management Services also recalls are covered in the recent publication by the Ministry of Justice.
The public should not be entitled to know about the private affairs of patients. This can easily be dealt with by redacting published decisions. To date the Mental Health Tribunal for Scotland has published about 30 redacted decisions over the last year, without seeking the permission of any parties to do so.
Absolutely agree with Rob. It is very, very difficult to argue that someone who was once ādangerousā should now be released, without the support of their current treating team.
There will be patients who reoffend once they are released. There will also be patients who commit very serious offences. Thatās not because the Tribunal is getting it wrong. Any system has to be prepared to accept that there will be cases that slip through the cracks: what is the alternative? Detain them indefinitely to ensure that they never have the chance of reoffending?
Victims can have an input. As Rob says, the VLO will have the opportunity to put forward representations. Cases can be adjourned if that hasnāt happened. But the reality is that victims have little to add to this process. They cannot comment on the patientās readiness for discharge, the likelihood that they will comply with conditions, or the chance that they will relapse. They can ask for certain conditions, e.g. a no-contact condition (which is fairly standard in any event) or an exclusion zone, and that is important and entirely proper.
Allowing victims to access more information about the patientās confidential medical treatment is not going to change the fact that some patients reoffend. If anything, it is likely to put patients off from applying to the tribunal. From my experience, most patients who have committed a grave offence are extremely embarrassed of having done so.
I donāt think the Tribunal details should be made public. I DO think the Tribunal process itself should be scrutinised Rob Beech opened a topic in June about Judges on Tribunals behaving badly and the impossibility of doing anything about it. I have seen what happens at a Tribunal as well as the confused way they are organised and that the so-called Judge not only conducts the proceedings but has to make notes throughout without any way of checking the accuracy. Why are they called Judges? Surely they are just he Legal Member
of the Panel?
In my opinion, the Tribunal Service itself should record the proceedings, to be made available to check the Written Decisions.
Could I suggest that Mr Hendy gets a copy of āThe Falling Shadow - One Patientās Mental Health Care 1978-1993ā. This shows - as do all reports that I have seen about homicides - the person was in obvious need of help for a long time before the homicide. Andrew Robinson did kill someone and is still in Broadmoor. He himself has been trying for many years to have a public tribunal which has been deniedā¦
Could I also suggest that Mr Hendy looks at another journalistās attempt to highlight the shortcomings of the mental health system - Patrick Cockburn who co-authored āHenryās Demonsā with his son who has a diagnosis of Schizophrenia. This is not a story of homicide but the same shortcomings applyā¦
Thank you to everyone who responded to my comment in reply to Barry Gale
Iām not a lawyer, but have some experience in this area, but Iād like to respond to some of the comments.
My main concern is around the lack of transparency in the Tribunal system, particularly around restricted patients where there is a clear public interest in how they are managed, rather than patients who have not committed serious crime.
In my view the public should be entitled to know that Tribunals are operating lawfully and fairly (and are not, say, institutionally racist or discriminatory). And particularly that they are not putting patients, their families, or the public at unnecessary risk.
In 1999 Lord Woolf probably put it better when he said:
āThe public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the publicās confidence in the administration of justice. It enables the public to know that justice is being administered impartially.ā
He pointed out there are some exemptions to this rule (particularly cases under the mental health act), but these exemptions are not absolute.
In 2016 Lady Hale said:
"There is a difference between cases where a court or tribunal is administering the property, care or treatment of a patient in his own best interests and cases which are concerned with the proper management of a patient who has in the past been dangerousā¦. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are. This is particularly so where notorious criminals are involved. They need to be reassured that sensible decisions are being made about them.ā
Currently it seems to me that balance isnāt being struck. Without any form of open scrutiny the public cannot know that Tribunals are working well and that sensible decisions are being made.
How do we know Tribunals are not, as one commentator above put it, releasing people āwilly-nilly.ā Whereās the evidence?
Previous research (eg by Jill Peay and others) has shown that Mental Health Tribunals are largely dependent on the views and opinions of the medical members and treating psychiatrists. But given the frequency with which poor risk assessments feature in Inquiry reports, many psychiatrists appear to be poor at assessing and managing risk effectively.
Just one example - a review of nine patient homicides in Sussex found:
āIn seven out of the nine cases of homicide, there was criticism of the risk assessment process and/or the design of the risk management plan. In several cases, the process was seen as inadequate or the risk posed was not recognised or was seriously underestimated.ā
Often the psychiatrists just assessed the risk to the patient but ignored any risk from them.
And whilst well-meaning, psychiatrists can often be over optimistic in their reports to the Ministry of Justice.
The MoJ Guidance for social supervisors (2019) says:
āA repeated theme in reports into homicides committed by discharged restricted patients is the reluctance of supervisors to send reports to the Ministry of Justice that showed clients in an unfavourable light. It is absolutely crucial to the effectiveness of your supervisory role that reports should be comprehensive and honest. Reports should never overlook or minimise problems for fear of jeopardising the patientās progress. This is not in the patientās interest and can lead to the most serious consequences.ā (paragraph 58)
Itās also not correct to say victims can have any meaningful input into the tribunal process. The framework which sets out the very limited matters about which they are able to comment appears to have been decided by lawyers and clinicians themselves - without any input from victims. In order to make representations, victims have to be signed up to the victim contact scheme (when they are often at the height of their grief) and have a sufficiently knowledgeable and well informed victim liaison officer to pass on their requests. Sadly not all VLOs are sufficiently well informed, well trained, or that familiar with the system.
Recall
The recall figures are from the (official) Restricted Patient statistics bulletin - at the time of writing I was using the 2018 figures:
According to the current MoJ guidance:
āPatients will be recalled where it is necessary to protect the public from the actual or potential risk posed by that patient and that risk is linked to the patientās mental disorderā
I understand from other case law that even a breach of licence conditions does not always result in a recall to hospital. (at 57)
This must surely imply that there has been a deterioration that has increased the risk to the patient, their family or the public - to my mind that is āsomething seriousā.
Reoffending
The latest MoJ recidivism statistics whilst superficially reassuring, donāt give the whole picture as they only consider re-convictions within one year of discharge, when supervision is at its greatest.
Re-convictions are a poor guide to recidivism. As Dell and Grounds wrote in their study of the discharge and supervision of restricted patients:
āRe-convictions are always a poor measure of reoffending, since so many offences are unattributed or do not lead to a conviction for other reasons. For restricted patients however, reconvictions are a particularly unacceptable measure of reoffending, because further offences are liable to be dealt with by hospitalisation rather than prosecutionā
Many studies (both domestically and internationally) show most re-offending comes after one year of release. (I can provide references if anyone is interested).
The studies are not recipes for locking people up indefinitely ā they just demonstrate that people who have committed serious offences in the past when unwell, do need to be supervised, cared for and followed up effectively for for a considerable time after their discharge from hospital. (The 2004 Jamieson study Rob Beech criticised was of a cohort of people released from high secure hospitals in one year, followed up over 12 years - 86% of reoffending occurred in the community, around 12% in hospital)
And the evidence I see on a daily basis is that the monitoring and supervision system for discharged restricted patients is not always good (eg here).
I am aware of at least 30 restricted patients who were released by FTT(MH) who went on to kill following their release. At least ten of them since 2014 ā so this is clearly not just a historical problem.
Iām also familiar with the Falling Shadow ā itās available on our website as a learning resource (here), along with several hundred other inquiry reports and case reviews following patient homicides.
The Tribunal system does need to become more transparent and accountable. Tribunals are expensive, paid for out of the public purse, but are not subject to any form of public oversight or scrutiny.
I donāt think thereās a place for what are essentially secret courts in a modern democracy.
It just never happens, though in theory a party could ask for a decision to be published.
Could you possibly send a list of these decisions? I could summarise and put links to them on Mental Health Law Online.
The book arising from her research is Jill Peay, Tribunals on Trial: A Study of Decision Making Under the Mental Health Act 1983 (Clarendon Press 1989). Itās hard to imagine the tribunals in England and Wales going down the same transparency road as the MHT for Scotland, the Parole Board, the Court of Protection, or the family courts ā at least not any time soon ā but I wonder whether they would agree to academic research.
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The MHTS decisions are at the foot of the following page :
https://www.mhtscotland.gov.uk/mhts/Legislation_and_Caselaw/Legislation_and_Caselaw
āOutcomesā from hearings are published on this page :
https://www.mhtscotland.gov.uk/mhts/Tribunal_Hearing_Outcomes/Tribunal_Hearing_Outcomes
The President of the MHTS has not stated whether she intends to work towards publication of all tribunal FFRs, or only a selection, and what the selection criteria are. She (and also the previous President) have both refused to allow temporary access to redacted FFRs for academic research. However they both told me they would never reconsider their earlier refusals to publish FFRs - and here we are. I continue to press the current President on the issue of transparency of decision-making.
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What do you mean by āthe Tribunal detailsā?
In Scotland the hearing is recorded and stored for about 2 years. Officially, any Party can request a copy. Although, despite being a Party who attended in person, I was refused a copy to support an appeal I was making, on the ground of Patient Confidentiality.
However nobody routinely checks audio recording against the written decision.
I need to update the above. The tribunal has since allowed the publication on Mental Health Law Online of a decision which neither arose from a public hearing nor was a review-type decision on a point of law: Re G (absolute discharge) [2023] MHLO 4 (FTT).
The following decision sets out the approach to publication which has been taken by the First-tier Tribunal so far: Re A (publication of MHT decision) [2023] MHLO 3 (FTT).