First-Tier Tribunal (Mental Health)

The First-Tier Tribunal (Mental Health) continued to hear cases throughout the pandemic, using remote hearings. Listings were paused for only six working days for some community patients (CTO or conditional discharge) at the end of March 2020, and have otherwise continued as normal.

Changing to remote hearings appears to have had no effect on outcome, with similar proportions of discharges to hearings in 2020/21 compared to the previous year. In 2020/21 and 2019/20 the Tribunal discharged patients in about 10% of its decisions relating to detention overall. Around 30% of restricted patients’ appeals resulted in some form of discharge decision, in most cases using the powers given to the Tribunal to order the conditional discharge of restricted patients. Patients detained under the assessment and treatment power (section 2) were roughly twice as likely to successfully appeal as patients detained under treatment powers (section 3 and unrestricted hospital orders) (figure 7). Appeals against CTOs were in general less successful, with about 4% of decisions ordering discharge (figure 8).

Source: HM Courts and Tribunal Service, Analysis and Performance Team.
Please note: The number of applications, hearings and outcomes will not match due to outstanding matters at the end of each financial year.

Source: HM Courts and Tribunal Service, Analysis and Performance Team.

Notes:
The number of applications, hearings and outcomes will not match due to outstanding matters at the end of each financial year.

Data from HM Courts and Tribunal Service, Analysis and Performance Team. Data for 2019/20 is shown for comparison, but also as we did not request and publish this in last year’s report.

Source: Source: HM Courts and Tribunal Service, Analysis and Performance Team.
Note: The number of applications, hearings and outcomes will not match due to outstanding matters at the end of each financial year.

As highlighted in last year’s report, while some people preferred the use of remote hearings, others felt disadvantaged. This was supported by patient feedback on Tribunal hearings in 2020/21. While some people reported a similar experience to face-to-face hearings, others felt that they were not listened to or felt that they were not able to participate fully.

Poor internet connection remained a common concern from patients, staff and Tribunal representatives. For example, on one visit to an acute ward in November 2020, staff told us that they had experienced problems with accessing the Tribunal video link because the trust did not have a compatible web browser. As a result, patients and staff had to use their own devices and data, which could have security and data protection issues.

In our last report we highlighted an example of a tribunal decision being set aside on appeal due to a patient’s video-link being muted and her consequently not being able to alert the panel when she could not hear witnesses. In November 2020, we heard of another case that illustrates other potential problems with remote procedures. In this case, the Upper Tribunal set aside a first-tier Tribunal decision on the basis that it had been wrong to proceed in the patient’s absence, after the patient declined to take part. The patient had previously been assaulted after other patients discovered his history. He was concerned, in this context, that the hearing might be overheard by another patient with whom he was self-isolating due to coronavirus. The Upper Tribunal found that the Tribunal was wrong to have assumed, without investigation, that closing an internal door was sufficient to ensure that proceedings could not be overheard. It also found that the Tribunal had not considered why the patient was anxious and its impact on his ability to participate. As a result, the Tribunal had wrongly approached the adjournment request as if the patient had been concerned with the mode of hearing (i.e. telephone) rather than the fear of being overheard that day.

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