The old rule 34 required the medical member to conduct a pre-hearing examination of all patients detained under the Mental Health Act 1983 who had applied for a Mental Health Tribunal. This examination previously took place on the day of or a couple of days before the tribunal. The medical member who makes up part of the judicial panel would then feed back their opinions arising from this assessment to the other judges. At the tribunal the medical member would then ask questions of the patient’s responsible clinician based on his assessment of the patient.
The new rule 34 will require the medical member to conduct a pre-hearing examination of the patient on all Section 2 cases unless the patient does not want such an examination, but the medical member will not conduct such an examination in any other case unless:
- The tribunal is informed in writing by or on behalf of the patient, not less than 14 days before the hearing, that a pre hearing examination is wanted; or
- The tribunal has directed that there must be such an examination. This will either be a direction by a salaried judge or registrar in advance of the hearing, or a direction made by the panel because the patient has failed to attend the hearing.
As patients now have a choice as to whether they wish to be assessed by the medical member, mental health solicitors and panel members must be live to the need to give appropriate and timely advice to their clients so that the tribunal is informed in time. We have found that applications made for an examination which are out of time are being considered by the tribunal if a full and reasonable explanation is given as why the application is late.
This amendment also raises the question is it beneficial to be assessed by the medical member? This arguably will depend on the individual patient and their mental disorder and require the solicitor/ panel member to take time to consider.
The Mental Health Lawyers Association surveyed their members regarding the amendments to rule 34. The data collected indicated that 62% of the law firms who took part have a default position which is to advise clients to have an examination. Only 5% of law firms surveyed stated their default position was not to have the examination.