Judges and other legal personnel, understandably, have a

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1 Mentl Helth Review Tribunls in the UK: Applying Therpeutic Jurisprudence Perspective Nicol Ferencz nd Jmes McGuire Judges nd other legl personnel, understndbly, hve profound interest in the impct of their decisions on ll those who come in contct with the lw. Nturlly, the outcomes of court decisions, whtever their specific context, re of enormous importnce to ll individuls concerned. But in recent yers there hs been growing recognition tht legl processes in themselves, including the wys in which courts nd judges interct with citizens, lso hve significnt impcts on people before tribunl or court. Indeed, Tom Tyler hs reviewed evidence tht the most influentil fetures of legl prctices upon individuls re not objective chrcteristics of the cse disposition experience, but rther their ssessment of the firness of the cse disposition process. 1 The study described in this rticle is concerned with the perceptions of the decision-mking processes of the Mentl Helth Review Tribunls in Englnd nd Wles. We hve interviewed members of tribunls chrged with reviewing decisions on detention s well s ptients who hve ppered before those tribunls. The study nlyzes disprte perceptions of tribunl procedures emnting from the two sets of interviewees with the purpose of understnding how those procedures might be mde more effective. Understndings gined from this study provide bsis for recommending reforms to lw nd prctice nd judicil behvior tht promote the psychologicl nd physicl well-being of those ffected by tribunl proceedings nd decisions. In serching for n intellectul frmework within which to locte the reserch, the perspective of therpeutic jurisprudence ppered to offer the kind of nlytic pproch required, together with the possibility of ffording prticulrly vluble insights. Therpeutic jurisprudence, the study of lw s therpeutic gent, 2 provided foundtion tht ws both conceptully nd ethiclly inter-linked with the reserch ims of this study, which include expnding upon previous reserch nd re- estblishing dilogue on the merits of the tribunls, nd providing n impetus for procedurl improvements for tribunl clients. In this study, primry focus of interest is upon the impct of legl processes on the individuls who use them or who re subject to them. One possibility rised by this is tht in some cses, legl procedures tht re designed to sfegurd n individul s rights might in relity be nti-therpeutic. If these procedures re identified, it is incumbent on us to be wre of their impct, nd to ddress the necessry steps tht could enble more pproprite chnges to be introduced. LEGAL BACKGROUND OF MENTAL HEALTH REVIEW TRIBUNALS IN THE UK Like most other countries, the United Kingdom hs specil set of lws concerned with the mngement nd cre of persons with severe mentl disorders. 3 In Englnd nd Wles, ptients with defined mentl illness or personlity disorder who re thought to pose risk to themselves or others cn be compulsorily detined in hospitl. The rules tht govern such detention re defined by the 1983 Mentl Helth Act (MHA). 4 This sttes tht ptients who meet certin criteri in respect of mentl disorder nd dngerous behvior cn be plced under sections of the MHA (colloquilly, sectioned ); ptients sectioned cn then be confined for vrying mounts of time in secure hospitl units. The level of security involved my vry considerbly. The mjority of ptients mde subject to these conditions re held in environments such s locked psychitric wrds in district generl hospitls; there re wrds of this type in locl hospitls in most prts of the country, ech housing smll number of ptients only. Others my be hospitlized in purpose-built medium secure units; ech dministrtive helth region hs Footnotes 1. T. R. Tyler, The Psychologicl Consequences of Judicil Procedures: Implictions for Civil Commitment Herings, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 6, 7 (D. B. Wexler & B. J. Winick eds. 1996)[the book herefter referred to s LAW IN A THERAPEUTIC KEY]. 2. D.B. WEXLER & B.J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE (1991); nd LAW IN A THERAPEUTIC KEY, supr note 1. See lso J. Mcguire, Cn the Criminl Lw Ever Be Therpeutic?, 18 BEHAV. SCI. & LAW., in press (2000). 3. Though we hve referred here to the United Kingdom, which 48 Court Review - Spring 2000 includes Englnd, Wles, Scotlnd, nd Northern Irelnd, specific cts of legisltion my sometimes pply to only one or other of these divisions of the relm. The most significnt spect of this from legl perspective is tht the Scottish system hs its own trditions tht re distinct from those in the reminder of the UK, nd its dministrtion is lrgely seprte. In this essy, however, we re focusing primrily on the sitution of the Mentl Helth Act (1983), which covers Englnd nd Wles only. 4. Mentl Helth Act (Englnd nd Wles) (London: Her Mjesty s Sttionery Office). The MHA is ccompnied by Code of Prctice, which sets out policies to be followed in respect of number of key spects of its opertion.

2 one unit of this type, nd their cpcity generlly vries between 30 nd 70 beds. For proportion of persons who re ssessed s presenting the most serious risk, detention my be indeterminte. Such individuls re generlly plced in mximum security institutions, fmilirly known s the Specil Hospitls. There re three such hospitls in Englnd: Brodmoor (founded in 1863), Rmpton, nd Ashworth, ltogether housing pproximtely 1,700 ptients, mny of whom hve committed homicides nd other of the most serious types of crimes. Brodly speking, there re two kinds of sections, or commitments, tht cn be imposed under the MHA. The first re known s the civil sections nd, in essence, their usge depends on decisions mde by medicl prctitioners without reference to courts of lw. The length of detention tht results from implementing these procedures cn vry from 28 dys to 12 months nd longer. The second type includes rnge of mesures tken by the criminl courts, which my mke wht is known s Hospitl Order (MHA section 37) requiring tht the individul in question be detined in hospitl for tretment. In proportion of cses, this order my be further strengthened through imposition of Restriction Order. When committed to fcility under one of the MHA sections, the ptient s cre is mnged nd mny spects of his or her welfre re decided by the Responsible Medicl Officer (RMO), who, s this title implies leglly, is responsible for the ptient s cre. The RMO is consultnt psychitrist; this role is itself specified in one of the sections of the MHA. While he or she will typiclly hve the support of, nd work longside, multidisciplinry tem, the RMO s recommendtions bsed on his or her ssessments of ptients ply pivotl role in influencing how long ptients remin in the hospitl nd whether or not they should be dischrged. There is, however, purportedly corrective or counterviling power longside this. Under nother MHA provision, the ptient hs the right to question the legitimcy of his or her detention nd cn pply to Mentl Helth Review Tribunl (MHRT) in order to hve this issue ssessed. The tribunl provides n independent hering nd consists of three-member pnel respectively, one legl, one medicl, nd one ly member. The legl member is chirperson or president of the tribunl nd my be solicitor (ttorney), though, with ptients who re detined with restrictions, this my be more likely to be circuit judge. The medicl member is usully psychitrist who is independent of the hospitl where the ptient is detined, nd who lso interviews the ptient beforehnd s well s during the tribunl hering. The ly member, customrily, is not entirely ly in tht he or she is likely to hve bckground in socil or community issues. Although tribunl herings re generlly less forml thn courts of lw, ptients re [L]egl procedures tht re designed to sfegurd n individul s rights might in relity be nti-therpeutic. usully represented by solicitor (ttorney). This is not lwys the cse (some ptients choose to represent themselves) nd the ptient my or my not ttend the hering. In effect, other members in ttendnce become witnesses; they include the RMO, socil worker, possibly psychologist who hs provided therpy for the ptient, nd the ptient s reltives. The overll function of the process is to ct s check on whether the ptient continues to meet the legl nd medicl criteri for detention under the MHA. 5 If this is found not to be so, the tribunl my order the ptient to be dischrged. PRIOR RESEARCH This rticle s focus is the working of the Mentl Helth Review Tribunl, nd in wht follows we describe how tribunl is experienced nd perceived respectively by ptients nd tribunl members. 6 To prepre the ground for this, let us first consider vilble reserch on the functioning of MHRTs. Very little reserch hs sought to evlute the role of the tribunl. The mjor exception is the work of Jill Pey, 7 who conducted n extensive project during the 1980s on the opertion of the tribunl nd mde number of stute observtions. Sdly, neither subsequent policy deprtures nor reserch studies hve furthered her recommendtions. Her reserch exmined two elements of the MHRT s role: first, the impct of the MHA on the tribunl s work (MHRTs hd existed prior to the 1983 pssge of the MHA); nd second, the MHRT s decisionmking process. In her study, Pey used vriety of methods to gther informtion. These included semi-structured interviews with tribunl members nd nlysis of cse records. She found tht ptients described number of concerns, prticulrly over reltionships with their RMO. Ptients were disgruntled by erroneous sttements written bout them in reports prepred by their doctors, nd they were unhppy with the overll level of contct they hd with their RMOs. Ptients vlued the role of the tribunl, but not necessrily for the purposes for which it ws originlly designed. They emphsized the opportunity to stte their concerns regrding their hospitl cre, nd to her wht stff hd to sy bout their progress. Pey concluded tht the difficulties expressed by ptients were worrying, prticulrly when they tlked bout their reltionships with their RMO. The RMO s opinion is crucil fctor in whether ptient is detined or dischrged. If ptients felt tht they did not receive dequte time nd cre, then true picture of their progress might not be represented t the 5. R. Jones, MENTAL HEALTH ACT MANUAL (4th ed. 1994). 6. Further detils of this reserch cn be found in the following pper, which is currently being submitted for publiction. N. Ferencz nd J. McGuire, Ptient s Experiences of the Mentl Helth Review Tribunl (1999). 7. J. Pey, Mentl Helth Review Tribunls: Just or Efficcious Sfegurds? 5 LAW AND HUMAN BEHAVIOUR, t (1981); J. Pey, Mentl Helth Review Tribunls fter the Act: A Significnt Improvement? 4 ISSUES IN CRIMINOLOGICAL AND LEGAL PSYCHOLOGY, t (1983); J. Pey, The Mentl Helth Act 1983 (Englnd nd Wles), Legl Sfegurds in Limbo, 14 LAW, MEDICINE AND HEALTH CARE t (1986); J. Pey, TRIBUNALS ON TRIAL: A STUDY OF DECISION-MAKING UNDER THE MENTAL HEALTH ACT 1983 (1989). Spring Court Review 49

3 A mjor... theme described by ptients ws the degree of communiction difficulty they experienced.... tribunl. Furthermore, she found tht the tribunl itself often concurred with the RMO s recommendtion. In 84% of their decisions, tribunls were found to gree with the recommendtion mde by the RMO; this led Pey to question whether the tribunl ws ctully prepred to exercise its discretionry dischrge powers. MHRTs hve received little ttention from reserchers during the lst ten yers. However, smll number of investigtions hve thrown light on severl spects of the tribunl s functioning. This work includes nlysis of reports presented to tribunl herings, 8 exmintion of the difficulties tht tribunls fce s result of delys nd resultnt costs, 9 nd descriptive work concerning the ptients who use MHRTs. 10 THE PRESENT STUDY The studies listed bove focused on specific spects of the functioning of the tribunl. There is no reserch tht furthered the erlier concerns expressed by Pey or evlutes the tribunl s role. In the present study we ttempted to ddress some of the issues rised by Pey nd to investigte wht ptients, judges, nd other tribunl members think bout the tribunl tody. Given these objectives, the present study needed to be explortory nd it ws decided tht mixture of qulittive (e.g., interviews) nd quntittive (e.g., systemtic nlysis of the interview contents) methods would be used in order to meet the reserch ims. 11 Those ims were to investigte the experiences of ptients who hd recently ttended their MHRT hering nd to investigte tribunl members views of the MHRT itself. The min method employed ws interviewing; interviewees were chosen using purposive smpling method nd ll interviews were tpe-recorded, s required by estblished interviewing techniques. 12 For the ptients, the interview begn by sking them to describe their most recent tribunl experience. Tribunl members, too, were sked to describe recent tribunl experience. RESEARCH FINDINGS Ptients nd MHRT members demonstrted number of differences in how they viewed the tribunl procedure. Ptients described number of key themes, which tended to fll into two ctegories: rections to their detention in generl; nd specific rections to the tribunl experience. Similr, overlpping themes occurred in both ctegories nd ptients described cycle of distress, which typiclly begins when they enter hospitl. This cycle ppers to be perpetuted by the tribunl process (see Figure 1). Distress FIGURE 1: THE CYCLE OF DISTRESS Expecttions of the Tribunl Confusion Rections to Detention: Powerlessness Disstisfction Communiction Problems Furthermore, ptients expecttions of the tribunl ppered to be correlted to their tribunl experience. Understnding the elements of this cycle of distress provides criticl insights for improving outcomes for ptients through improved tribunl procedures. A mjor, nd in mny wys pre-eminent, theme described by ptients ws the degree of communiction difficulty they experienced with their cre stff nd with the tribunl. 8. P. Dvidson nd A. Perez de Albeniz, Reports Prepred for Mentl Helth Review Tribunls, 21 PSYCHIATRIC BULLETIN t (1997); B. Brockmn, Prepring for Mentl Helth Review Tribunls: Reports nd Dilemms, 17 PSYCHIATRIC BULLETIN t (1993). 9. C. A. Kpln, Mentl Helth Review Tribunls nd the Council on Tribunls, 19 PSYCHIATRIC BULLETIN, t (1995); S. Blumenthl nd S. Wesseley, The Cost of Mentl Helth Review Tribunls, 18 PSYCHIATRIC BULLETIN t (1994); S. Blumenthl nd S. Wesseley, The Pttern of Delys in Mentl Helth Review Tribunls, 18 PSYCHIATRIC BULLETIN t (1994). 10. K. F. G. Sd nd S. P. Sshidhrn, Mentl Helth Review Tribunls, 16 PSYCHIATRIC BULLETIN t (1992). These uthors reviewed series of ptients who pplied for tribunls over n 18-month period. They concluded tht the only vrible tht ws relted to outcome ws gender. 11. Seventeen ptients nd ten tribunl members greed to tke prt in the study. A combintion of content nlysis nd grounded nlysis ws employed to complete sequence of steps designed to identify emergent themes in the responses mde by ptients nd MHRT members respectively. [For further informtion on content nlysis, see K. Krippendorf, CONTENT ANALYSIS: AN INTRODUCTION TO ITS METHODOLOGY (1980); on grounded theory, see B. G. Glser nd A. L. Struss, THE DISCOVERY OF GROUNDED THEORY: STRATEGIES FOR QUALITATIVE RESEARCH (1967).] First, interview dt ws trnscribed nd content nlysis ws conducted. The dt were lso nlyzed qulittively in order to identify ny recurring themes. Second, the emerging themes were used s templte for two interviews in order to test out the generted themes. Both uthors conducted this process independently nd some modifictions were mde to the clssifiction system. Next, the themes were nlyzed so tht ny linkges between them could be identified. Fourth, greement rtings were generted between the two uthors use of the clssifiction system. As seprte component of the nlysis, similrities nd differences between responses from ptients nd members to the 15 key sttements were nlyzed using sttisticl tests. 12. For discussion of these smpling nd interview pproches, see M. Q. Ptton, HOW TO USE QUALITATIVE METHODS IN EVALUATION (1987). 50 Court Review - Spring 2000

4 Chrcteristic sttements included: The tribunl they weren t even interested in it, I didn t get my sy. They wouldn t let me tlk, tell my side of the story. They were listening to ll the others first. Well, I thought they d listened to me bit more thn they did do. I would hve thought they would hve done [more]. Ptients ppered to feel liented from proceedings tht were designed s n independent review of their detention sttus: They re so old, I felt like I ws t school.... They were quite out of touch, they seemed to sy things were minor nd they were little things when I don t think they were. Yes you cn get confused t tribunl becuse they spek mongst themselves. It is like tril relly. There were, of course, conflicting views expressed, both between members nd ptients, nd mongst members themselves. Members differed in how well they thought ptients understood wht ws hppening in the tribunl. Also, they differed in the extent to which they believed tht they gined n ccurte picture of the ptient. Eight out of ten tribunl members sid tht they were hppy with the tribunl. All of those interviewed, however, did describe some problems. These included, for exmple, dislike of specific herings nd of how independent reports were used, the need for further trining, the wish for feedbck concerning ptients subsequent progress, nd difficulties with RMOs. Finlly, the results from the rting scles were investigted by conducting significnce tests on the verge scores for members nd ptients. These results demonstrted two interesting findings. First, ptients showed more vribility in their replies thn did members (their rtings covered significntly wider rnge). Second, there were sttisticlly significnt differences (e.g., differences unlikely to be the product of chnce fctors) between ptients nd tribunl members on severl of the scles. Thus, for exmple, ptients were significntly less likely thn MHRT members to gree tht the MHRT is n independent body. Also, ptients were significntly less likely to gree tht the tribunl ws fir. These results demonstrted tht there re importnt differences between how ptients nd tribunl members view the tribunl process, with tribunl members demonstrted more fvorble view. CONCLUSIONS The results strongly suggest tht ptients nd MHRT members hve quite different views of the tribunl process. There my be mrked need, therefore, for ptients to hve more eduction bout the role of the tribunl nd of its functioning nd opertion. Ptients feel tht they hve not been herd nd tht their concerns hve not been recognized. Communiction needs to improve between stff, tribunl members, nd ptients so tht the cycle of distress described by ptients cn be ddressed. These findings re consistent with nd provide further support for the conclusions of other reserchers who hve exmined similr issues. Jck Susmn, 13 in study of conflict resolution in hospitls, found psychitric ptients were very concerned with receiving fir process in resolving disputes, nd they were certinly cpble of discerning the degree of firness of procedures regrdless of the ctul outcome for themselves. Such findings underscore fundmentl principle of the therpeutic jurisprudence perspective. In study with objectives similr to the present one, Alexnder Greer nd his collegues 14 interviewed ptients involved in civil commitment herings nd found they reported distress nd felt they hd little or no voice in the proceedings. Their perceptions of the legl process ppered inter-linked with their generl experiences of tretment in hospitl, mrked in most cses by lck of trust in their doctors. The therpeutic jurisprudence pproch helps to drw our ttention to these experiences nd provides bsis for seeking to remedy these concerns. The proposls of Wexler nd Winick, 15 tht the role of lw must receive ttention when its prctice proves to be nti-therpeutic, re thought to be prticulrly relevnt to these tribunls. This pproch lso questions whether biomediclly oriented viewpoint should be prmount in our understnding of nd response to mentlly disordered offenders; it stresses the potentil importnce of psychosocil informtion when guiding the tretment of ptients with mentl helth difficulties. Congruent with this viewpoint, recent reserch on prediction of recidivism by Jmes Bont nd his collegues 16 suggests tht the relince on the medicl fetures of mentl disorder presenttion is unfounded; demogrphic nd criminl history vribles prove to be better predictors. Furthermore, mentl illness dignoses were found to be unrelted to (indeed, negtively correlted with) recidivism. This would suggest tht psychologist s or socil worker s report could provide better evidence in helping the tribunl to mke decision. The comments of one tribunl member clerly indicted tht the former type of evidence is under-vlued: The medicl [evidence] is crucil, the medicl evidence is decisive. I m not going to decide cse on probtion report or socil work report nd you sometimes get socil workers who step out of their role nd become the dvocte for the defendnt nd pronounce 13. J. Susmn, Resolving Hospitl Conflicts: A Study on Therpeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY A. Greer, et l., Therpeutic Jurisprudence nd Ptients Perceptions of Procedurl Due Process of Civil Commitment Herings, in LAW IN A THERAPEUTIC KEY 923. Ptients reported feeling ngry, sd, displesed, nd confused nd hd sense of being coerced. Id. t See supr note J. Bont, et l., The Prediction of Criminl nd Violent Recidivism Among Mentlly Disordered Offenders: A Met-Anlysis, 123 No. 2 PSYCHOLOGICAL BULLETIN t (1998); nd see J. McGuire, Commentry on the Efficcy nd Effectiveness of Community Tretment Progrms in Preventing Crime nd Violence in Those with Severe Mentl Illness in the Community by Kirk Heilbrun nd Lori Peters, PREVENTION OF CRIME AND VIOLENCE BY MENTALLY DISORDERED OFFENDERS (S. Hodgins nd R. Muller-Isberner eds. 2000). Spring Court Review 51

5 on psychitric mtters we hve to decide this cse on criteri of dngerousness nd I m not hving this from socil worker s to whether somebody is sfe. Tribunl members ppered to be sensitive to the needs of ptients. However, they demonstrted inconsistencies in their ctions nd described mny different pproches for deling with their difficulties. As with ny public service, there needs to be some nlysis of how the tribunl system opertes s whole. This nlysis should focus on how the tribunl dischrges its role. The tribunl system is n independent body tht ws designed to sfegurd the rights of ptients who hd been detined. Disgreements between tribunl members nd ptients, therefore, require ttention nd ptients concerns need to be properly ddressed. Anlysis of the tribunl could tke the form of n internl udit of procedures so tht problems cn be identified nd solutions generted. Members were willing to listen nd were eger to receive feedbck bout their ctions. It is recommended tht ptient follow-up sttistics be tbulted nd mintined so tht members would receive informtion bout their ctions. Furthermore, this process could be incorported into wider trining progrm tht would support tribunl members nd move towrds identified gols tht recognize the provision of good service. This would men tht good prctice could be extended nd tht prctice tht fell below such stndrds could be eliminted. Finlly, further reserch is needed to continue the focus on the functioning of the Mentl Helth Review Tribunl. This should ddress both the difficulties for ptients s well s tribunl members nd could be extended to review of the entire tribunl procedure. Monitoring of ny procedure is impertive so tht individuls rights cn be sfegurded nd necessry improvements mde. If the process entils difficulties, then these deserve ttention within the provision nd funding of mentl helth services. If they cnnot be dequtely ddressed, then ttention needs to focus on why, nd whether the tribunl system in its current formt cn ctully fulfill its designted functions. 17 Nicol Ferencz is clinicl psychologist working in medium security mentl helth unit in Stfford, Englnd. She obtined her doctorte qulifiction in 1998 nd completed the current reserch s prt of her degree. The study hs uncovered mny importnt issues regrding the impct of the tribunl process upon ptients mentl helth. Her current im is to continue to explore this re nd to increse public nd professionl wreness of these issues. Jmes McGuire is director of studies of the doctorte in clinicl psychology trining progrm t the University of Liverpool in Englnd. He is chrtered clinicl nd forensic psychologist nd crries out ssessment of offenders for criminl courts nd Mentl Helth Review Tribunls. He hs conducted reserch in prisons, probtion services, dolescent units nd secure hospitls on spects of the effectiveness of tretment with offenders. He is the uthor or editor of eight books nd more thn 70 other publictions. He is currently conducting number of reserch projects on the development, implementtion, nd evlution of cognitive skills trining progrms. 17. The lst mjor review of lw pertining to mentlly disordered offenders ws tht undertken by the Butler Committee in 1975 (Home Office/Deprtment of Helth nd Socil Security, Report of the Committee on Mentlly Abnorml Offenders [The Butler Report]) (1975)(Cmnd London: Her Mjesty s Sttionery Office). There followed n eight-yer gp before some of its proposls were encted in the present Mentl Helth Act (1983). In comprtive terms, by those stndrds, the pce of chnge t the present moment is little short of brethtking. In July 1999, the government published new set of proposls for the mngement of persons with severe personlity disorders (Home Office/Deprtment of Helth, Mnging Dngerous People with Severe Personlity Disorder: Proposl for Policy Development (1999)(London: Her Mjesty s Sttionery Office). Only four months lter, in November 1999, second consulttion document ws published, the product of specilly commissioned expert committee. (Deprtment of Helth, Reform of the Mentl Helth Act 1983: Proposls for Consulttion (1999)(Cm London: Her Mjesty s Sttionery Office). At the time of writing, responses hve been invited to this consulttion document, with submission dedline of Mrch 31, A centerpiece of the proposls is the estblishment of new kind of independent tribunl or decision-mking body, the precise model for which hs yet to be determined. This group would hve powers regrding dmission to hospitl, the issue of orders for compulsory tretment, nd review of detention. 52 Court Review - Spring 2000