Mental health review tribunals and legal representation – equality of arms?

Due to the influence of the European Convention on Human Rights and Fundamental Freedoms and the enactment of the Human Rights Act 1998, quite properly, virtually all patients are legally represented in Mental Health Review Tribunals. Indeed, the European Court of Human Rights has decided that in certain circumstances patients’ rights may be breached if they are not represented in proceedings, even when, in fact, they have not requested a lawyer (Megyeri v. Germany, 1992). However, it is important to note that both sides of tribunal proceedings are not treated equally.

One of the basic tenets of justice is the concept of equality of arms, i.e. ‘ a reasonable opportunity of presenting the case to the court under conditions which do not place him in substantial disadvantages vis-à-vis his opponent’ (Kaufman v. Belgium, 1986). The expression of this in regard to tribunals is enshrined in Article 5(4), (everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of this detention shall be decided speedily by a court and his release ordered if the detention is not lawful). It is the interpretation of this Article which has led patients to receive free legal representation in tribunals. What is anomalous, and indeed perverse, is that in England and Wales the detaining authority has no such legal representation and almost entirely relies on the Responsible Medical Officer to argue the case for continuing detention. It is theoretically possible for the Responsible Medical Officer to legally represent the detaining authority (R. on the application of Mersey Care Trust v. MHRT [2003]) but this could clearly never be to the same skill level as a trained solicitor or, indeed in certain circumstances, a barrister and rarely happens in practice. In an increasingly litigious and complex world, it not only appears amateurish and one-sided but, more significantly, the appropriate balance of the States’ obligations and the patients’ rights cannot be fairly struck, which cannot be in the best interests of either the patient or of society. In contrast, in Northern Ireland however, where the relevant legislation is largely based on the Mental Health Act 1983 (Mental Health (Northern Ireland) Order 1986), nearly all Mental Health Review Tribunals have legal representation for both the patient and the detaining Trust. From personal experience, this allows a fuller, more considered, and indeed expert, appraisal of the evidence. If this is good enough for one part of the United Kingdom, why not for another part and could this in itself be seen as discriminatory and thus, in itself, contrary to the Human Rights Act? Lack of resources are often cited as the reason for the Trust not to be legally represented but should certainly not be at issue here and the courts have already declared, in relation to tribunal delays, that the state has an obligation to fund important human rights issues irrespective of cost (R. v. MHRT and Secretary of State for Health, ex parte KB and others [2003]).

I suggest that this fundamental imbalance has been overlooked as an issue for far too long and is worthy of further debate and, hopefully, rectification.

Declaration of interest

I am a medical member of the Mental Health Review Tribunal.