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33. In last year's Report we detailed our comments on the Government's draft Mental Health Bill, which was published for pre-legislative scrutiny in September 2004. Our Chairman and one of our members, along with His Honour Judge Sycamore, the Liaison Judge for the Mental Health Review Tribunal, and Mrs Carolyn Kirby, the President of the Mental Health Review Tribunal for Wales, gave evidence to the Joint Select Committee on the draft Mental Health Bill. The Committee subsequently published its Report in March 2005.
34. In its response to the Committee's report the Government indicated that it had commissioned further work on the Bill's Regulatory Impact Assessment and, as part of the Bill implementation project, established a Mental Health Tribunal Project Group. The group included representatives from key stakeholders groups, including the Institute of Mental Health Act Administrators, the National Institute for Mental Health for England, the Department for Constitutional Affairs (DCA) and the Legal Services Commission. One of our members represented our interests on this group.
35. The group's terms of reference were:
"To develop and make recommendations to the mental health legislation programme board and DH Ministers, via the Project Manager, for a workable and deliverable tribunal model, which delivers the policy objectives of the proposed Mental Health Bill and is accessible and useable by all patients, taking into account their diverse circumstances and needs."
36. In its submission to Ministers the group recommended that urgent action needed to be taken to make the existing Mental Health Review Tribunal (MHRT) fit for purpose and improve compliance with acceptable performance targets as a precursor to implementation of any new Mental Health Tribunal; and that until the MHRT was shown to be functioning competently and efficiently no further action should be taken to introduce a new tribunal. Whilst this might appear to be a rather disappointing position in the light of all the work that had gone into the development of the new legislative proposals, we recognised that it represented a realistic assessment of the current position of the MHRT.
37. On 23 March 2006 Rosie Winterton MP, the Minister of State for Health, announced that the Government had decided not to proceed with the Bill in its original form but instead planned to introduce a shorter, streamlined Bill which would amend the Mental Health Act 1983. The Bill is due to be introduced when parliamentary time allows. We await details of what this will be likely to mean for the Mental Health Review Tribunal and look forward to early consultation on any new proposals.
38. The Department also established a Tribunal Rules Advisory Group, chaired by Professor Jeremy Cooper, one of the full-time regional Chairmen, to review the current MHRT procedural rules in order to determine how they might need to be updated. A member of our secretariat sits as a member of the group, which is using our "Guide to Drafting Tribunals Rules" as a benchmark for this work.
39. We were pleased to learn that the MHRT was to be among the first wave of tribunals to transfer to the Tribunals Service in April 2006, as obvious benefits could accrue from its early transfer both for the staff and judiciary alike and, we would hope, also for the users of the tribunal. A member of the Council sat as an observer on the Project Implementation Board set up by the DCA to oversee the arrangements for the transfer.
40. Our Social Affairs Committee had a constructive follow-up meeting with Mr Jack Fargher, the Head of the MHRT secretariat, who had met the Committee earlier in the year. Mr Fargher helpfully provided us with advance copies of the MHRT's Business Plan for 200506 and Review of Activity from April 2001 to March 2005. Since our last meeting with him a good deal of progress was reported to have been made:
41. We are pleased to note the progress that has been made in the short time since Mr Fargher took over as the Head of the secretariat and look forward to seeing the impact of these initiatives at our forthcoming visits to observe MHRT hearings. However, at a visit to a hearing after our meeting with Mr Fargher one of our members reported many of the same issues that we have raised in the past, e.g. the inadequate standard of the tribunal hearing room, delays in the tribunal receiving the papers for the hearing, continuing problems with booking hearing dates in advance, communication difficulties with the secretariat in London. We hope that the new initiatives and working practices that are being introduced will address these shortcomings as soon as possible.
42. The results of a recent MHRT Stakeholder Opinion Survey have shown that key stakeholders are least satisfied with:
Particularly low levels of satisfaction among stakeholders were highlighted in areas such as tribunal administrative support, MHRT processes and the arrangements for listing hearings. The survey has provided useful information about where remedial action urgently needs to be taken in the MHRT administration.
43. The Mental Health Review Tribunal for Wales is a separate organisation, which is administered and funded by the National Assembly for Wales. The tribunal also operates its own procedures and forms etc. During the year we have observed hearings of the MHRT in Wales, where no particular problems were identified. The administration difficulties that are prevalent in England are largely absent in Wales, which might be attributable to the smaller size of the jurisdiction, making for better communication and more closely involved administration and leadership.
44. The Care Standards Tribunal (CST) Annual Report for 200405 reported a 34% increase in the total number of appeals over the previous year, with appeals against decisions of Ofsted and the General Social Care Council accounting for most of the increase. In his Report the President, His Honour Judge Pearl, described the tribunal's achievements during the year, including:
45. We were pleased to receive copies of the "Making Your Case" DVD, which will materially assist users of the tribunal to prepare for a hearing by giving them a flavour of what will be likely to happen on the day and useful guidance on how best to prepare for a hearing. It is impressive what can be achieved by a relatively small tribunal like the CST in the provision of information and advice to its users, which is a good example of best practice for other tribunals to follow.
46. The Safeguarding Vulnerable Groups Bill, which was introduced in the House of Lords on 28 February 2006, makes provision for the protection of children and vulnerable adults. Among other things the Bill provides for the creation of the Independent Barring Board (IBB), which will be responsible for the establishment and maintenance of the children's and adults' barred lists, comprising the lists of people considered to be unsuitable to undertake "regulated activity" with children or adults.
47. Our attention was drawn to the Bill by His Honour Judge Pearl, President of the Care Standards Tribunal (CST), to whom appeals from decisions of the IBB will lie on a point of law. In his response to a consultation on the constitution of the IBB Judge Pearl questioned whether limiting the right of appeal to a point of law would be compliant with the European Convention on Human Rights and pointed out that, whilst the CST is a tribunal of first instance, limiting the right of appeal in this way would give the CST the status of a second tier tribunal.
48. We share Judge Pearl's concern about limiting the right of appeal to points of law only and concur with his view that any right of appeal to the CST should be on grounds of law and fact. Moreover, we are not aware of any other first tier tribunal to whom the right of appeal is fettered in this way. We are pursuing this matter with policy officials in the Department for Education and Skills.
49. We have not had the opportunity in the past year or so to undertake visits to observe hearings of the Family Health Services Appeal Authority, which we reported in our 2003/04 Annual Report was continuing to receive relatively low numbers of cases in its first few years of operation. However, we intend to address this in the coming year by attending hearings and through follow-up contact with the President, Mr Paul Kelly.
