The Inquisitorial Tribunal

Tribunals are unusual in explicitly adopting an inquisitorial rather than an adversarial stance. The rules of evidence on matters such as hearsay are more relaxed, but the basic rules for an expert witness still apply.

As an inquisitorial forum, there is wide discretion over the evidence admitted. MHTs may refuse the parties permission to call certain witnesses whose evidence the tribunal is not persuaded would be relevant. While this is less likely now that there is an explicit duty of fairness to the parties, the party calling an expert, and the expert themselves, may well be expected to demonstrate why expert evidence is required.

Similarly, the tribunal will take the lead in questioning witnesses and in determining the relevant areas of evidence. While patients’ representatives are entitled to ask further questions, this is often limited in scope. While representatives are usually given leeway in exploring further issues, the tribunal can be expected to identify the issues which it considers relevant for the admission of expert evidence, and pursuing lines of evidence which the tribunal has not itself raised, even if admitted, may have limited impact.

Finally, note that although the parties will present their views of the case, unlike an adversarial forum, the tribunal can take evidence and raise issues that the parties do not (see below).

The Tribunal Rules and Procedures

In England and Wales, familiarise yourself with the Tribunals Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (TP(FTT)(HESCC) 2), which govern both the procedure and the content. The following are important:

• 
  

  the overriding objective of any tribunal is to deal with the case before it ‘fairly and justly’;

  
  
• 
  

  procedural decisions of the tribunal must always seek to give effect to these objectives;

  
  
• 
  

  parties may be permitted or required to provide expert evidence and the tribunal may direct that a single expert is jointly appointed (TP(FTT)(HESCC) 15); and

  
  
• 
  

  the tribunal has wide discretion to admit or exclude evidence, and to limit the issues, nature of evidence and number of witnesses (TP(FTT)(HESCC) 15).

In Ireland, there are written procedures for the Criminal Law (Mental Health) Review Board, promulgated by the Board (Criminal Law (Insanity) Act 2006, s 11 and First Schedule, para. 13), but these largely reflect the statutory provisions. There are no written rules for MHTs: a tribunal determines its own procedures, subject only to the MHA 2001.

The Statutory Criteria

Tribunals often hear wide-ranging evidence about a patient’s psychiatric condition, life history, circumstances and future plans, and not uncommonly are invited to make comments and recommendations based on this. But remember that ultimately a tribunal is bound to reach its decision in line with statutory criteria. Other considerations may influence a tribunal’s views, but the decision itself must be expressed in response to specific tests, and all evidence should ultimately aim at establishing the appropriate answer to these specific questions (adapted from the MHA 1983, s 72, applicable to s 3 and, with minor (but important) alterations, to other sections and other jurisdictions):

• 
  

  Does the patient suffer from a mental disorder?

  
  
• 
  

  Is that mental disorder of a nature or degree that makes it appropriate for the patient to be detained in hospital for treatment?

  
  
• 
  

  Is that treatment necessary for the health of the patient or the safety of the patient or the protection of other persons?

  
  
• 
  

  Is appropriate treatment available?

In Ireland, for patients detained pursuant to the MHA 2001, specific questions are:

• 
  

  Is transfer of a detained patient to the CMH in the best interest of the health of the patient concerned?

  
  
• 
  

  Is psychosurgery in the best interest of the health of the patient concerned?

In Ireland, for patients detained pursuant to the Criminal Law (Insanity) Acts 2006 and 2010, specific questions are:

• 
  

  Unfitness to plead: Does the patient, although still unfit to be tried, still require in-patient care or treatment in the designated centre?

  
  
• 
  

  Not guilty by reason of insanity: Does the patient still require in-patient care or treatment in the designated centre?

  
  
• 
  

  Variation of Conditions of Discharge: Is it appropriate to vary or remove one or more of the conditions of the conditional discharge order?

  
  
• 
  

  Unconditional Discharge: Is it proper to make an order for an unconditional discharge?

  
  
• 
  

  Breach of Condition of Discharge: All of the foregoing fall for consideration.