Consultant psychiatrists' knowledge of their role as representatives of the responsible authority at mental health review tribunals

AIMS AND METHOD

A postal survey of consultant psychiatrists was carried outto assess their level of knowledge about the role of the personrepresenting the responsible authority at a mental health reviewtribunal (MHRT).

RESULTS

Consultants generally had a low level of knowledge and understandingof their responsibilities as representatives, which increasedsince appointment and with experience of MHRTs. They thoughtit appropriate that they continue representing the detainingauthority in most cases, but recognised training needs.

CLINICAL IMPLICATIONS

Postgraduate training and continuing professional developmentshould address the competencies required for the representativerole. Trusts should review their practice in respect of legalrepresentation at MHRTs.

Introduction

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Introduction

Consultant psychiatrists frequently appear before the mentalhealth review tribunal (MHRT) in their capacity as responsiblemedical officer for patients detained under the Mental HealthAct 1983. In addition to giving evidence to the Tribunal, theyact in most cases as the representative of the responsible authority,a role that entails significant powers and responsibilities. Although psychiatrists are skilled and experienced at presentingpsychiatric opinions, they may be less well prepared for theduties required of them as representatives. Consultants’knowledge of mental health law has generally been shown tobe poor, although some studies show better levels of knowledge(Humphreys, 1999; Bhatti et al, 1999; Peay et al, 2001).

The MHRTs are independent judicial bodies that operate underthe provisions of the Mental Health Act 1983. In most Tribunalsthere are two parties to the legal proceedings: the patientand the responsible authority. The patient is almost invariablylegally represented by a solicitor or barrister with experiencein mental health law. The responsible authority is usually representedby the responsible medical officer, and legal representationis rare (Coates, 2004).

Neither the Mental Health Act 1983, nor the Mental Health ReviewTribunal Rules 1983 contain a clear statement of the rightsor responsibilities of the responsible medical officer at MHRTs.Textbooks, which are aimed primarily at legal practitioners(Gostin & Fennell, 1992; Eldergill, 1997; Bartlett & Sandland, 2003),tend to give detailed guidance for lawyers representing patients,but little or none for those representing the authority. This probably reflects the reality of legal practice, where legalrepresentation other than for the patient is extremely rare.

The Royal College of Psychiatrists requires trainee psychiatriststo develop ‘knowledge and understanding of the legaland ethical framework of psychiatric practice, including theworking of the relevant Mental Health Act [and] the responsibilitiesof the responsible medical officer’ (Royal College of Psychiatrists, 1998),but specific experience of MHRTs is mentioned only within therecommended experiences for trainees in forensic psychiatry,and no distinction is made between the roles of a witness anda representative at the Tribunal. The need for specific trainingin this area is increasingly recognised (Naeem et al, 2007).

If MHRTs are to make good decisions then it is essential thatall relevant evidence is presented and adequately tested. Theresponsible medical officer is not only a crucial witness offact and of opinion (Wood, 1998; Lodge, 2005), presentingthe justification for continuing detention, but also, as representativeof the responsible authority, has an important role in testingthe strength of argument and evidence advanced in favour ofdischarge. The person representing the responsible authorityneeds to have good knowledge of the Mental Health Act and theMHRT rules, the rules of evidence applicable to the Tribunal’sproceedings, the relevant case law and the implications of theHuman Rights Act 1998, so as to represent the interests of theauthority. The ambiguous position of the medical member ofthe Tribunal has been much discussed (Richardson & Machin, 2000),but the dual role of the responsible medical officer as bothwitness and representative, has received scant attention.

The aim of our study was to ascertain the level of knowledgeconsultant psychiatrists have about their legal rights andduties when acting as representative of the responsible authorityat MHRTs. We also wanted to establish whether the level ofknowledge varies with length of time as a consultant, experienceof MHRT hearings and sub-specialty in psychiatry.

Method

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Method

A questionnaire was sent to 210 consultant psychiatrists practisingwithin the Eastern Division of the Royal College of Psychiatrists,identified by the Membership Department of the College (i.e.those consultants who had agreed to be approached in this wayfor research purposes). The sample included consultant psychiatristsworking in various psychiatric specialties, across eight mentalhealth trusts.

A questionnaire was developed consisting of three sections:section one asked about age, length of experience as a consultant,and area of psychiatric practice; section two related to experienceof MHRT hearings, either as responsible medical officer fora detained individual or as a medical member of the MHRT panel.Participants were also asked whether they had experience of attending an MHRT at which the responsible authority had beenrepresented by a solicitor or barrister, whether they feltresponsible authorities should arrange such representation,and whether they would find specific training on these issuesuseful. Section three comprised 12 situations or issues that might arise during an MHRT hearing, each followed by four true/false statements (there was one true statement in each case; seeonline supplement) about the rights or responsibilities ofa representative in that situation.

The questions were reviewed and the wording refined by two experienced mental health lawyers with extensive experience of MHRTs, bothas representatives and as legal members of the tribunal. Thequestionnaire was then piloted with five consultant forensicpsychiatrists, and the wording and presentation of the questionsfurther improved.

As an incentive to participate, consultants who returned thequestionnaire were entered into a draw for a prize of a textbookof mental health law. A single follow-up letter was sent tonon-responders after 2 weeks. The study was approved by theNorwich and Waveney Research Governance Committee and the NorfolkResearch Ethics Committee. Research governance approval was subsequently received from the seven other mental health trustsinvolved in the study.

Data were analysed using SPSS version 13.0 for Windows usingnon-parametric statistical analysis. Descriptive statisticswere used for demographic variables and comparisons made betweendifferent variables using Spearman’s correlation analysis,Mann–Whitney and Kruskal–Wallis tests, allowingcomparisons between median and interquartile ranges and estimationof the P-values. Confidence limits for the proportion of correctresponses were estimated using an n-trial independent Bernoullimodel.

Results

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Results

Questionnaires were returned by 102 consultants (49.5%; Table 1).Each question in section 3 was left unanswered or marked as‘don’t know’ by between 10 and 13 participants– these have been treated as incorrect responses in thefollowing analysis.

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Table 1. Characteristics of participants (n=102)

Of the responses obtained, 537 were correct (43.9%; 95% CI 41.1–46.7%).The proportion of correct answers to individual questions variedbetween 22.5% and 70.6% (Table 2). The multiple choice formatof the questionnaire implies that some of the correct answerswill have been given by consultants who were not fully confidentof their answers. Taking the assumption that they would be equallylikely to choose any of the four alternatives, an estimate hasbeen made of the proportion of consultants who gave the correctresponse from knowledge rather than by chance. For example,if 40% of participants gave a correct answer, we estimate thatas well as the 60% giving incorrect answers, another 20% had‘guessed correctly’, and that only 20% actually knew the correct answer. This estimate is clearly simplistic:responses reflect varying levels of knowledge between completecertainty and total guesswork, and participants might be ableto eliminate some answers as incorrect and choose between theremaining two or three answers with varying degrees of certainty.The estimated proportion of ‘known’ answers isgiven only as a general indication of the level of participants’ knowledge. However, the low proportion of unanswered questionsand the high number of incorrect answers suggest that manyparticipants gave answers about which they were less than certain.

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Table 2. Participants’ knowledge of their role as responsible medical officers

The 93 participants who answered at least one question in section3 averaged about six correct responses (mean=5.89, median=6,mode=7); 12 participants (13%) scored 3 or less out of 12,a correct response rate consistent with chance; 40 participants(43%) scored 5 or less, a correct response rate of less thanhalf; only 2 participants scored 10 or more, and none scored12.

Scores increased significantly with length of time since firstconsultant appointment (Spearman’s rank correlation coefficient: r_S=360; n=87, P=0.001). Although the number of correct responseswas greater for those who attended more tribunals per year,this was not statistically significant (r_S=0.197; n=93, P=0.059);the small number of participants who were also medical membersof the Tribunal did score significantly higher (Mann–WhitneyU=128.5, P<0.001).

There was a significant association between the total numberof correct responses and psychiatric sub-specialty (Kruskal–Wallis=18.75,d.f.=6, P=0.005), which was largely explained by a greatertotal score for forensic psychiatrists than other specialties(Mann–Whitney U=299.0, P=0.003). Differences betweenother specialties were non-significant.

Twelve of the participants (12%) had experience of attendinga tribunal at which the responsible authority had been legallyrepresented; 6 stated (6%) that such legal representation should‘always’ be provided, 64 that it should ‘sometimes’be provided (63%), and 27 that it should be provided ‘rarely’(27%), with only 3 considering (3%) that there should ‘never’be legal representation. The majority of respondents (n=76,75%) stated that they would find specific training on theseissues useful.

Discussion

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Discussion

Approximately two-thirds of the consultant psychiatrists inthe Eastern Division were willing to be contacted, and 49%of those contacted returned questionnaires. The data held bythe College do not establish whether or not the consultantswilling to be contacted for research purposes are similar in terms of demography or specialty to the wider consultant population,but those responding to this survey were broadly similar toEastern Division and UK consultant psychiatrists as a wholein terms of specialty. As might be expected given the topic,specialties that might have more involvement with tribunals(general adult, old age, forensic) were slightly overrepresentedin our study, and specialties with less involvement (childand adolescent, learning disability, liaison) were underrepresented.No responses were received from consultant psychotherapists.

There was generally a low level of knowledge about the roleand responsibilities associated with representing the responsibleauthority among the participants – fewer than half theresponses given were correct. Only 4 of the 12 questions wereanswered correctly by more than half the participants and theproportion of those answering correctly did not differ significantlyfrom the 0.25 that would be expected by chance. To their credit, participants recognised the need for further training in thisarea, with more than three-quarters saying that this wouldbe valuable, and there was little support for employing specialistlegal representatives routinely, suggesting that consultantsare willing to continue acting as representatives, and see thisas an appropriate part of their duties. Nevertheless, 97% ofparticipants believed that legally qualified representationwould be desirable on at least some occasions.

When acting as representative of the responsible authority,a consultant psychiatrist has various powers and duties beforeand during the tribunal. If the interests of the authorityare to be adequately protected during these proceedings itis essential that the representative is aware of the natureand scope of their responsibilities. This study suggests thatthis is rarely the case, and that most consultants are naïveas to the significance of their position as the representative,the scope of their legal powers, or the necessity of activelydischarging their legal duties. It is a matter of considerableconcern that some consultant psychiatrists do not know the law that relates to their duties and powers in relation to MHRTs:this has important implications for their trust, service usersand the public.

Mental health trusts should take more cognisance of the factthat they are frequently a party to legal proceedings at whichtheir interests are represented not by qualified lawyers butby consultant psychiatrists, and that those consultants mayhave limited knowledge or understanding of their role. If trustsare content for this situation to continue, they should at aminimum satisfy themselves that psychiatrists tasked with thisrole are competent to discharge it. It is interesting to notethat 12% of our sample had experience of attending an MHRTat which the responsible authority had professional legal representation:it may be that this will be an increasing practice in the future,and that consultant psychiatrists would broadly support sucha development.

Psychiatrists acting as representatives in legal proceedingsare likely to be held accountable only to the standard expectedof a reasonable psychiatrist acting in that role, rather thanto be competent to the standard of a legal professional. However,there is a duty on all doctors to practise only within thelimits of their competence and experience (General Medical Council, 2006).Psychiatrists considering whether or not to undertake this rolemust be satisfied that they have the requisite knowledge ofMHRT procedure and adversarial skills to discharge the responsibilitiesadequately. As participants in this study have recognised,this may entail specific training and the development of competenciesthat have not traditionally been included in psychiatric trainingprogrammes.

Acknowledgments

We thank mental health lawyers Julie Burton and Paul Veitchfor their valuable advice and input into the design of thequestionnaire. The authors take full responsibility for anyfaults or errors that remain.

S.N. undertook this study in as part of a Master of MedicalSciences degree at the University of Leeds. He thanks Dr A.Cardno for supervision and advice.

References

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