Welcome to The Plague Pit – issue number 26

Today, I’m delighted to welcome Dr Richard Stanton to The Plague Pit. It’s not the worst place he’s been. Like most doctors, his working life has changed a good deal because of the pandemic. He introduces himself in this excellent article – so I’ll simply add that I met him at medical school and he is one of my oldest friends.

I’m a Psychiatrist – a medical doctor who has specialised in the treatment of mental illness. Over the last year, I’ve stepped back from working as a clinical psychiatrist (seeing patients & their families) and now work as a Medical Member of the Mental Health Tribunal – I’ll explain what that is in a bit.

For many years, I’ve worked as part of teams in hospital units and in the community with people with severe mental illnesses like depression and psychosis. Psychosis is different in everyone, but imagine having a really bad dream, you don’t know that you’re dreaming and you’re fully awake, having the greatest difficulty being able to distinguish between what’s real inside your head from what is reality for everyone else. It’s a complicated business that affects every aspect of that person and their family’s lives and treatment & support to recover is just as complex.

We’re pretty used to showing respect to war veterans & survivors of all kinds of awful experiences (including having recovered from severe COVID-19 infection or working at the “sharp end”) and hearing the wisdom & insights that they have gained from difficult times.

Coming out the other side of one or more mental breakdowns (not a proper clinical term, but seems to make a lot more sense to most people than a lot of technical terms) is so often a similarly rich source of wisdom that deserves sharing. In the not too distant past, experiencing or having experienced mental health problems carried with it a great degree of personal shame and stigma from others, but in more recent years, this has thankfully reduced to a significant degree. This change has been reflected in the very great pleasure that I’ve had in more recent years of working alongside ex-patients who have recovered and gained significant wisdom from their experiences, for the great benefit of others in their own work as mental health professionals  (doctors, nurses, psychologists etc).

It’s perhaps been a consistent feature of human history that times of great challenge have also been incredible drivers of innovation-sometimes even wisdom that sticks.

While the world has turned not only upside down, but inside out over the last few months, with so much sadness, pain and stress, it’s been interesting to witness the many ways that individuals and organisations have adapted to very different ways of keeping society functioning. This has been the case in just about every area of our lives and my area of work has been no exception.

Front and centre of our news feeds has, understandably, been the response of health services to the effects of COVID-19, but less attention has been directed toward how the justice system has had to adapt-not only in terms of criminal justice (determining whether someone has broken a law or not with a fair hearing to establish their guilt or innocence) but in many other areas, including challenging being held against one’s own will in a hospital unit specialising in the treatment of mental illness.

It’s worth knowing that the overwhelming proportion of people experiencing problems with their mental health (to some extent at least one in four of us at some point in our lives and something like one in every three or four GP appointments in any given day) not only recover, but do so without having to have help involving being admitted to hospital for treatment.

Sometimes, however, an episode of mental illness can affect a person so severely that they are unable to make decisions about their safety, for example a serious attempt or risk of suicide, not eating or drinking to the point of being life-threatening or, much more rarely, being at risk of harming someone else, perhaps due to unusual beliefs totally out of keeping with their usual character, culture and objective reality (known as delusions).

If that person really and temporarily needs treatment (talking treatments, medication etc) and to be kept safe & supported in hospital, they really aren’t safe to be at home/in the community and either refuse or simply can’t make that decision to be admitted to hospital, UK law allows a team of professionals (usually two doctors, at least one of whom will be a Psychiatrist, and a social worker) to assess the person (talking with them, usually for less than an hour, sometimes a lot shorter if they are so unwell that they can’t tolerate a discussion, but there’s enough information to make a decision) and decide whether they should be admitted to a hospital unit under a Section of the Mental Health Act-sometimes called “sectioning”. The person, once admitted to hospital may then expect to be in hospital for up to several weeks, but sometimes longer if absolutely necessary.

Now, imagine that you may have been going through a difficult time in your life, but feel that you’re on top of things or maybe that things are so bad that everything is beyond help or hope and with little or no warning, you have two doctors and a social worker (whom you probably haven’t met before) appear without warning and ask you all kinds of awkward and personal questions, then tell you that you’re mentally ill, are at severe risk to your health, safety or to others and have to go to a psychiatric unit and have treatment, to where you are then taken.

You may have even been picked up by the police beforehand because you’ve been out & about and they’ve been so worried about your health & safety that they’ve detained you on a place of safety order, needing assessment by the aforementioned trio within a few hours.

Needless to say, you’d be forgiven for feeling scared, angry, aggrieved and desperate to have your freedom back. You may even mention your human rights (Article 5 of the Human Rights Act asserts your right to freedom & liberty, Article 8, your right to private & family life, home & correspondence). It’ll be explained to you that under the Mental Health Act, these human rights can legally be temporarily withdrawn from you.

There are few other situations in UK law where in the space of perhaps only an hour or two, you can be detained somewhere against your will for weeks or months. That’s pretty harsh.

Fortunately, Article 6 of the Human Rights Act is on your side-the right to a fair trial-if a “public authority” has made a decision (like sectioning you) that impacts your civil (and human) rights, you are entitled to have that properly questioned.

This where the Mental Health Tribunal comes in. The Tribunal is part of HM Courts & Tribunal Service and is an independent, travelling Court to whom people who’ve been detained under the Mental Health Act can appeal-asking to be discharged (or even stay in hospital voluntarily if they’re well enough & able to work alongside the treating team-who wants to be under a legal order, after all?).

Appealing is easy and uncomplicated and the ward staff are legally obliged to help you with it and respect your right to do so. You even have a solicitor, free of charge, to represent you.

A week later, the Tribunal comes to your hospital for a hearing in a meeting room.

The hearing has the same status as any other Court of law and can feel a bit formal and scary. Sitting at a table are three Tribunal Members, who’ll decide whether you stay in hospital under the Section, or have the freedom to leave (or stay for a while as a voluntary patient) if you want to. The three members are a legal Judge, a Specialist Lay Member (who is usually an experienced, sometimes retired Psychiatric Nurse, Social Worker or other person who’s worked in the area of mental health) and a Medical Member, who is always a Psychiatrist who has had a good few years’ experience using the Mental Health Act as part of their routine work (who may be me..).

On your side of the table, you have your solicitor sitting next to you, the Psychiatrist in charge of your care, a nurse from the ward and someone (usually a nurse or social worker) from the community mental health team-hopefully they’ll be someone that you’re already working with, but often you may have met them only once before. The doctor, nurse and social worker (called “witnesses”) have all had to write a report about you & explain why it’s absolutely necessary for you to be in hospital and under a Section.

That last bit is in bold because it’s really important. Imagine that in a parallel universe you’d had a few drinks and fancied driving fast in a fancy sports car. You didn’t own a fancy sports car, so stole one for said fast drive and got caught by the police. There’s a good chance that you’d similarly find yourself sitting (or standing in this instance) in front of a judge, with a solicitor by your side. I’d imagine you’d feel a bit anxious, faced with the job of finding sufficient excuses to convince the judge to let you walk free. The “burden of proof” of your innocence (or lack of guilt) is on you. Sorry about that…….

Meanwhile, back in the other parallel universe of the Mental Health Tribunal meeting room in the hospital psychiatric unit, it’s the other way around. It’s the job of the hospital Psychiatrist, Nurse and community worker to make the case as to why it’s absolutely necessary (and with no possible alternative) for you to be detained in hospital under the Mental Health Act “in the interests of your health, safety or for the protection of others” (that bit’s a quote from the Mental health Act), that you definitely have a mental health problem and that there a decent plan to help you towards being back in charge of your life again. The burden of proving this is theirs to shoulder.

The three members of the Tribunal (the Panel) and your solicitor take it in turns to ask plenty of searching questions of the witnesses. You can even ask some yourself (but your solicitor usually does this for you-you can even take breaks to talk to them in private if you want or need to).

An hour or two later, the hearing ends, Everyone apart from the Panel leaves. The Panel discuss all the evidence between themselves and make a decision, which they feed back to you, usually within 15 minutes. You either stay on the Section or the Section is “lifted” and you can either leave hospital straight away or agree to stay for a bit longer voluntarily if it makes sense to you.

Even though it’s the witnesses who are getting a bit of a (albeit polite) grilling, you’ve spent a couple of hours listening to people talk all about you, your life & all that’s wrong with it (often getting details a bit wrong and having to get your solicitor to challenge this). Having started the day maybe feeling very down or paranoid or scared or hopeful, then disappointed, you may well feel pretty traumatised. Hopefully, those looking after you will have used the opportunity to clearly and in plain English explain why they’re doing what they’re doing and how you can work together to get your independence back and maybe gain some useful knowledge & wisdom from the whole experience……which does happen sometimes, by the way!

It’s worth noting here that most people are admitted under Section 2 of the Mental Health Act, lasting up to 28 days and you have one go at an appeal during this time, in which case the hearing must happen within seven days of your appealing. If you still need to be in hospital for longer than this under a Section, you will likely be placed under Section 3. A trio of two doctors and a social worker will appear again for the assessment and if they make the order, it’ll last for up to six months. You’ll be able to appeal to the Tribunal again.

As you might guess, COVID-19 has made this whole process very complicated. Hospitals have restricted visiting and as many Panel members are retired, and in higher risk groups of contracting COVID (as well as spreading it-we visit a lot of hospitals), physical hearings in hospitals have stopped abruptly.

Almost overnight, people detained against their will under the Mental Health Act were faced with the reality of not only being locked down, but being locked down somewhere that wasn’t home, without the prospect of their Article 6 human rights (a fair trial etc) being respected.

Within a few days, the Tribunal service had moved to hearings by telephone conference call (quite challenging when no-one has non-verbal communication at their disposal) and more recently, using a Skype-like, secure video conferencing platform, with the Patient, Panel, witnesses and solicitor safe in their own rooms using whatever phone, tablet or computer is to hand. If the patient wants to leave the hearing, they can if they wish while the hearing carries on, or they can have a private chat with their solicitor in a separate private virtual “room” at any time.

What has been particularly remarkable has been a Tribunal system that has, until several years ago, been paper based-reports being sent before hearings by post to Panel members, booking them into hearings all over the country most days of the week by letter or phone call and so on. In the space of several years, that system has moved from 19^th to 20^th Century technologies (paperwork, reports, bookings all happening online & by email) and in the blink of an eye into the 21^st. Also with the challenges faced by all office-based administration teams of suddenly working remotely from home.

The changes have been informed all the way along by feedback from Panel members, patients, solicitors and patients and adapted quickly in response to this. Interestingly, many patients so far prefer not having to attend a formal hearing in a large room full of people while having their case heard. As no travel time is involved for anyone, hearings are arranged and conducted quickly and without Panel members being bound by geography-it’s desirable in the interests of a fair hearing to have a Panel that’s as independent as possible, not only from the hospital but from each other, so being able to sit in hearings anywhere in the country in an unexpected bonus.

There have, of course been issues with systems not running smoothly for many and predictable reasons. In addition, as so many of us are finding, seeing &` hearing someone via a device is still not a complete or substitute to physically being in room with someone for so many purposes. Things are changing so very fast and it’s fascinating to watch old customs & practices being thoroughly challenged & changed with nuggets of real progress coming to the surface. While physical hearings are almost certain to start again in the future for some, it’ll be interesting to see the extent to which video hearings become a part of everyday practice and I certainly hope that the option remains for those who prefer it.

For the time being, I’ll be doing my bit to deliver justice wearing the top half of my suit in my garden shed.

Dr Richard Stanton

P.S. If you’re looking for more information on  mental health & mental illness, mental health law and working in mental health, the Royal College of Psychiatrists’ website is a great resource & launch pad: https://www.rcpsych.ac.uk. RS.