Report-writing for Tribunals Dr Hugh Series
Why are tribunals held? • Application by patient • Referral • Following barring of NR discharge • Following displacement of NR
Tribunals are courts • Members of the panel are judges • They have to operate according to statutory procedures • They are not care planning meetings • They have to work on the evidence available • The decision they make must be justified from the evidence by reasons
When are they held? • S2: apply once within 14d • S3: apply once in first 6 mo, once in second 6 mo, once in each subsequent year • S3: automatic referral if not heard in first 6 mo, or once every 3 yr thereafter • S7: application as s3, but no automatic referral • CTO: as s3, from date of discharge
Evidence • Written reports • Oral evidence
Evidence • On balance of probability • ‘Burden of persuasion’ is on the Detaining Authority to show why the patient should be detained
Pre-hearing examination • Section 2: • The medical member must see the patient beforehand for PHE, usually on the day
• All other sections: • P can request a PHE • MM needs your report before carrying out the preliminary exam (and legal rep needs reports to take instructions)
What makes a good report? • Explain: • who you are • when your report was written • what evidence your view is based on
• Address the statutory criteria: they matter very much • Write as clearly and as precisely as you can • Sheer length is rarely an advantage • Most forensic reports are longer than they need to be (personal opinion, widely shared by panels)
WHAT INFORMATION MUST BE IN A TRIBUNAL MEDICAL REPORT?
Practice Direction 2013 • https://www.judiciary.gov.uk/wpcontent/uploads/JCO/Documents/Practice+Direc tions/Tribunals/statements-in-mental-healthcases-hesc-28102013.pdf • Separate (but similar) directions for inpatients, community patients, guardianship, conditionally discharged, pts under 18
General requirements • Must be received by tribunal within 3 weeks of application or reference (for s2, >1 hr before hearing) • Author should have personally met and be familiar with P • Can submit addendum if report becomes out of date • Must be signed and dated, and specifically prepared for T • Must have numbered paragraphs and pages
Statement of information must include: • P’s name, dob, address • Chronological table listing • dates of previous admissions/discharges • date of current period of detention with renewals/change of section • Date of transfers • Dates and outcomes of tribunals in previous 3 yr
• Details of RA, • etc, etc
RC’s report - 1 • Any factors affecting ability to participate • Index offence and forensic history • Chronology • Reasons for previous admissions or recall • Circumstances of present admission • Current diagnosis, with justification • Whether learning disabled • Nature & degree of MD
RC’s report - 2 • Available treatment • P’s strength’s • P’s current progress, behaviour, capacity, insight • P’s compliance • Whether or not DOLS are appropriate • Incidents where P has harmed self or others or property
RC’s report - 3 • Whether detention (s2) or treatment (all other IP sections) is necessary in the interests of: • P’s health • P’s safety • Protection of others
• If discharged, whether P wd be dangerous. If so, how to manage risks • Any recommendations, with reasons
Nursing report • Some overlap with RC, plus: • Current nursing care & medication • Level of obs • Contact with relatives, friends • AWOL • Details of seclusion or restraint
Social circumstances report • • • • • • • • •
Some overlap with RC, plus Home & family circumstances, housing on discharge Financial circumstances Opportunities for employment Previous response to community support or aftercare Funding issues P’s views, wishes, beliefs, opinions, hopes, concerns Views of NR (unless inappropriate or impracticable) Involvement of MAPPA
Community patients • Similar to IP reports, but include: • Circumstances of discharge • Conditions attached • Whether still has MD of nature or degree to make medical Rx appropriate • Whether necessary for P’s H, or S, or POO that P should receive medical Rx • Whether, if discharged, likely to be dangerous • Whether necessary for RC to have power of recall
Conditionally discharged P Similar to IP, plus: • Circumstances of present CD • Any previous recalls from CD • Conditions • Compliance with conditions • Issues in relation to capacity • Risk and likelihood of reoffending • Whether necessary for H, S, POO to continue treatment • Whether appropriate to remain liable to recall • Whether, if abs disch, wd be likely to be dangerous • Any variation in conditions • Any recommendations
Patients under 18 • All above requirements apply plus additional specific information in SC report, eg • requirements for additional assessments, • care orders, • Looked After Child • Child in Need • secure accommodation orders • LA responsibilities • Children Act 1989 responsibilities
WHAT RULES DO TRIBUNALS APPLY?
Quiz! • What are the statutory criteria for a s2 patient?
Statutory criteria for s2: s72(1)(a) • Detaining authority must demonstrate that on the day of the hearing: • P has mental disorder • Nature and/or degree making detention in hospital for assmt/treatment appropriate • Detention justified in interests of (1) health and/or (2) safety and/or (3) protection of others
• If not met, Tribunal must discharge
Another quiz! • How do the statutory criteria for a s3 patient differ from those for s2?
Statutory criteria for s3: s72(1)(b) • DA must demonstrate that at date of hearing: • P has mental disorder • Nature and/or degree making detention in hospital for Rx appropriate • Necessary for (1) health and/or (2) safety and/or (3) protection of others that P should receive Rx • Appropriate Rx is available
• If not met, Tribunal must discharge
Another quiz! • Guess the question, and give the answer
Statutory criteria for CTO: s72(1)(c) • Must demonstrate that at date of hearing: • P has mental disorder • Nature and/or degree making medical Rx appropriate • Necessary for (1) health and/or (2) safety and/or (3) protection of others that P should receive Rx • Appropriate Rx is available • Necessary that RC should have power of recall
• If not met, Tribunal must discharge
Nature • The particular mental disorder • Its chronicity • Prognosis • Previous response to treatment
Degree • How severe the disorder is right now • ‘the current manifestation of the disorder’ • Only need to establish nature OR degree, so a risk of relapse can be a valid reason for detention even if current degree is insufficient
Discharge planning • Critical! • Often the weakest part of a report • Need to know what is likely to happen: (1) if section is discharged; and (2) if section not discharged. • Tribunal needs to know the likely outcome of a decision either way, esp risks if discharged • What is s117 aftercare plan?
Preliminary matters • Usually dealt with before you go in • Is tribunal properly constituted and initiated? • Evidential matters (eg non-disclosure) • Are all reports and people available? • Is it likely that if it goes ahead it will be able to reach a decision today? • Overriding objective: deal fairly and justly
Non-disclosure • Try to avoid it • P’s solicitor will see it • In practice not possible to guarantee 100% that P will not see it • Very difficult for Tribunal to refer to in the decision, so try to find a way of giving the tribunal the information they need in a disclosable way • Extremely high threshold for non-disclosure to be agreed • You can request it, but it’s not a right, and it’s unlikely to be granted
Observers • Not a right • Correct procedure is to apply to Tribunal office in advance. Some judges will not allow requests made on the day. • Observers have no right to speak or take part • Strict rule of confidentiality
Tribunal powers • Continue section • Discharge section: immediate/deferred/conditional (if restricted) • Adjourn (try not to adjourn – expensive, may delay proper treatment) • Can only adjourn for a statutory purpose • Make non-statutory recommendations, and ask for evidence that these have been carried out, or explanation of why not. May reconvene.
Tribunals try not to… • compel public bodies to commit resources • (but may ask them to explain why they have/have not done things, by sub poena if necessary) • tell RC how to treat
Good decisions need good evidence. Please help!
All good reports should: • Be clear • Be honest • Be based on facts, supported by evidence • Separate facts from opinion • Reach a conclusion • Address the criteria
Tribunal quiz • What criterion is required for CTO but not for s3? • Does the patient have to be present for the tribunal to proceed? • Does P’s representative have to be present for the tribunal to proceed? • What happens if P lacks capacity to decide if s/he wishes to have a solicitor? • Does the NR have a right to be present?
Tribunal exercise • Who are the parties in a tribunal? • How are they represented? • Who are the witnesses? • What evidence does the tribunal have to base its decision on? • What are the criteria the tribunal will apply?
Tribunal exercise • What information needs to be on the front page of your RC report? • What do you have to prove?
ARE TRIBUNALS WORTH THE TIME AND EFFORT?
How many? • 23,531 people detained under MHA on 31/3/14 • 53,176 detentions >72 hr in 2013/14 • About 82,000 prisoners in UK
Patients detained in hospital or on CTO on 31 March
Hospital detentions under Part 2
Part 3 detentions 2013-4 Section
2013-2014
35
77
36
22
37 with s41 restriction order
448
37 unrestricted
315
45A
2
47 with s49 restriction order
414
47 unrestricted
43
48 with s49 restriction order
394
48 unrestricted
11
Other sections – 38, 44, 46
121
Total Part 3 detentions
1,847
Outcomes of applications 2013/14
Withdrawn (18%) Discharged by RC before hearing (30%) Discharged by Tribunal (6%) Not discharged (46%)
Outcomes of applications 2013/14 s2
Other unrestricted
Restricted (%)
All detained (%)
9,081
15,096
3,203
27,380 (100)
724
3,109
1,138
4,971 (18)
Discharges by clinicians prior to discharge
2,877
5,057
56
7,990 (29)
Hearings
6,111
10,239
2,401
18,751 (68)
Absolute discharge
487
312
74
873
Delayed discharge
198
143
0
341
Conditional discharge
0
0
324
324
Deferred conditional discharge
0
0
138
138
Total discharged by Tribunal
685 (11% of hearings)
455 (4% of hearings)
536 (22% of hearings)
1,676 (9% of hearings)
No discharge
4,468 (73% of hearings)
6,489 (63% of hearings)
Applications Withdrawn applications
1,426 (59% 12,383 (66% of of hearings) hearings)
Tribunal outcomes • 53,176 detentions under MHA >72 hr during 2013/14 • 27,380 tribunal applications (2013-14) • 9% of hearings result in discharge (= 6% of applications) • Over 1,600 patients are discharged by tribunals, and almost 13,000 (54%) applications are either withdrawn or the section discharged
THANKS FOR YOUR ATTENTION!
REPORTS FOR CIVIL COURTS
Layout • Single sided • 3cm or more margins • 1.5-2 spacing • Font 11-12 • Numbered paragraphs and pages • Header (claimant’s name, case ref, author, date)
Front page • Header • Court • Name of case • Author • Type of report • Date of report • Page number
Use • Table of contents • Appendices • Numbered headings and subheadings
Testamentary capacity exercise - 1 • A wealthy man dies leaving a will which is contested. The party who disputes the will alleges that at the time the testator executed the will he had memory problems. You are asked to write a report on whether he had testamentary capacity at the time he executed the will
Testamentary capacity exercise - 2 • What criteria will you consider? • What material might you need to see? • What is the relevant standard of proof? • Is there any presumption about capacity?
Testamentary capacity exercise - 3 • You are instructed by the person who stands to gain if the will is accepted. But you think that the testator probably lacked capacity, which would invalidate the will. What should you do?
Testamentary capacity exercise - 4 • There are a lot of uncertainties which you cannot resolve. How should you deal with this in your report?
Civil Procedure Rules • CPR part 35 • Practice Direction • Protocol for the Instruction of Experts to give Evidence in Civil Claims (detailed and useful)
Civil Procedure Rules • Overriding duty is to the court, not the person who instructed you • Court must give permission to call an expert • Expert evidence must be written unless the court directs otherwise • Report must state substance of instructions • Must include declaration of compliance
Practice Direction to CPR part 35 • Expert evidence should be independent, unbiased • Should consider all the facts • Give expert’s qualifications • Stay within own area of expertise • Summarise any range of opinions and give reasons for expert’s own opinion
Declarations • Statement that expert understands duty to court and has complied with it • Statement that expert is aware of CPR part 35 • Statement of truth (specific form of words)
How many experts? • Court will decide • May require single joint expert • May require experts to discuss and produce schedule of areas of agreement and disagreement
Attendance at court • Must attend if summoned • If you write a clear and well-argued report you may not have to!
