Report-writing for Tribunals. Dr Hugh Series

Transcription

1 Report-writing for Tribunals Dr Hugh Series

2 Why are tribunals held? Application by patient Referral Following barring of NR discharge Following displacement of NR

3 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

4 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

5 Evidence Written reports Oral evidence

6 Evidence On balance of probability Burden of persuasion is on the Detaining Authority to show why the patient should be detained

7 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)

8 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)

9 WHAT INFORMATION MUST BE IN A TRIBUNAL MEDICAL REPORT?

10 Practice Direction tions/tribunals/statements-in-mental-healthcases-hesc pdf Separate (but similar) directions for inpatients, community patients, guardianship, conditionally discharged, pts under 18

11 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1 hr before hearing) Author should have personally met and be familiar with P Can submit addendum if report becomes out of date Must be signed and dated, and specifically prepared for T Must have numbered paragraphs and pages

12 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

13 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

14 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

15 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

16 Nursing report Some overlap with RC, plus: Current nursing care & medication Level of obs Contact with relatives, friends AWOL Details of seclusion or restraint

17 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

18 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

19 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

20 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

21 WHAT RULES DO TRIBUNALS APPLY?

22 Quiz! What are the statutory criteria for a s2 patient?

23 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

24 Another quiz! How do the statutory criteria for a s3 patient differ from those for s2?

25 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

26 Another quiz! Guess the question, and give the answer

27 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

28 Nature The particular mental disorder Its chronicity Prognosis Previous response to treatment

29 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

30 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?

31 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

32 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

33 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

34 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.

35 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

36 Good decisions need good evidence. Please help!

37 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

38 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?

39 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?

40 Tribunal exercise What information needs to be on the front page of your RC report? What do you have to prove?

41 ARE TRIBUNALS WORTH THE TIME AND EFFORT?

42 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

43 Patients detained in hospital or on CTO on 31 March

44 Hospital detentions under Part 2

45 Part 3 detentions Section with s41 restriction order unrestricted A 2 47 with s49 restriction order unrestricted with s49 restriction order unrestricted 11 Other sections 38, 44, Total Part 3 detentions 1,847

46 Outcomes of applications 2013/14 Withdrawn (18%) Discharged by RC before hearing (30%) Discharged by Tribunal (6%) Not discharged (46%)

47 Outcomes of applications 2013/14 s2 Other unrestricted Restricted (%) All detained (%) Applications 9,081 15,096 3,203 27,380 (100) Withdrawn applications 724 3,109 1,138 4,971 (18) Discharges by clinicians prior to discharge 2,877 5, ,990 (29) Hearings 6,111 10,239 2,401 18,751 (68) Absolute discharge Delayed discharge Conditional discharge Deferred conditional discharge Total discharged by Tribunal 685 (11% of hearings) No discharge 4,468 (73% of hearings) 455 (4% of hearings) 6,489 (63% of hearings) 536 (22% of hearings) 1,426 (59% of hearings) 1,676 (9% of hearings) 12,383 (66% of hearings)

48 Tribunal outcomes 53,176 detentions under MHA >72 hr during 2013/14 27,380 tribunal applications ( ) 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

49 THANKS FOR YOUR ATTENTION!

50 REPORTS FOR CIVIL COURTS

51 Layout Single sided 3cm or more margins spacing Font Numbered paragraphs and pages Header (claimant s name, case ref, author, date)

52 Front page Header Court Name of case Author Type of report Date of report Page number

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54 Use Table of contents Appendices Numbered headings and subheadings

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58 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

59 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?

60 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?

61 Testamentary capacity exercise - 4 There are a lot of uncertainties which you cannot resolve. How should you deal with this in your report?

62 Civil Procedure Rules CPR part 35 Practice Direction Protocol for the Instruction of Experts to give Evidence in Civil Claims (detailed and useful)

63 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

64 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

65 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)

66 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

67 Attendance at court Must attend if summoned If you write a clear and well-argued report you may not have to!