Victims and the Mental Health Tribunal

VICTIMS AND THE MENTAL HEALTH TRIBUNAL

By Julian Hendy (Hundred Families)

 

The Mental Health Tribunal, or, more formally, the mental health jurisdiction of the First-tier Tribunal considers the release of psychiatric patients detained under the mental health act.

 

Most will have been detained to ensure they receive urgent treatment following a deterioration in their mental health and will have committed no offence. But around 4,800 of them will be considered dangerous, having committed serious offences and given a hospital order with restrictions under Section 37/41 of the Mental Health Act. Some of these ‘restricted patients’ will have committed very serious crimes indeed. The decision to release them is naturally a matter of grave concern for the people and communities they have harmed.

 

Despite increasing calls for transparency, accountability, and greater balance in parts of the legal system (as with the Court of Protection) and for victims of crime generally (as in the Victims’ Strategy), all the available evidence shows the current Mental Health Tribunal system, if you’ll excuse the language, really doesn’t give a monkey’s about victims or public accountability.

 

Just one example:

Stuart Lay was a psychiatric patient with a long history of mental illness, drug abuse, and serious violence. He was known for assaulting elderly relatives, even fatally, when he was unwell. In 1995 he had broken down the door of his 82-year-old paternal grandmother, Miriam, and severely and repeatedly battered her with a walking stick. She died shortly after. He was convicted of wounding, given a hospital order with restrictions, and was discharged by a Tribunal back into the community just four years later.

 

Within weeks of his release he began planning another violent assault – intending to kill an elderly resident at the care home where his girlfriend worked.  He was returned to hospital, but discharged by the Tribunal three months later.  A period of stability followed, but then he became unwell yet again and seriously attacked and strangled his grandfather intending to kill him. Once more Stuart was recalled to hospital, but again conditionally released by a Tribunal after two years. His medical notes reveal he was not always honest with his treating team.

 

In 2014 the Tribunal considered discharging him absolutely – meaning the Ministry of Justice would have no power of recall should he stop taking his medication, abuse street drugs, or fail to cooperate with psychiatric treatment. In its report to the Tribunal the Ministry of Justice opposed his release, saying discharge would be premature. Stuart’s family also raised serious concerns. So here’s a man with a long history of serious mental illness, whose unconditional release, given his history of serious violence, is opposed by both the Secretary of State and his own family, and yet the Tribunal still goes ahead and releases him.

 

On 19 November 2015, Stuart Lay battered his remaining grandmother, Jean Robertson, to death. She was 86 years old. The subsequent Domestic Homicide Review said the clinical team’s recommendation for discharge was a ‘key action influencing the events that were to unfold’. This is certainly not the only such case. Many more mentally disordered offenders – Leslie Gadsby in Liverpool, Jeffrey Barry in Bristol, Leyton Williams in Cardiff, Lee Arnold in Manchester,  Theodore Johnson in Camden, David Gray in Winchester, and many others – have all been released back into the community by Tribunals and subsequently gone on to kill. (Two of them had killed before).

 

So how do Tribunals consider victims?

 

How do we know they are even aware when things have gone so horribly wrong?

 

How can we be sure they are not repeatedly making the same mistakes?

 

The short answer is we don’t know anything because Tribunal hearings and the way they work are so incredibly secretive. We don’t even know the names of the judges. We don’t know the names of the members of the panel – or their experience. We don’t know what evidence they consider, or how they make their decisions. Out of many thousands of tribunal hearings considering the release of restricted Patients, only three are known to have ever been held in public. There is no public scrutiny at all. They are unaccountable and they are failing the public. Justice is not seen to be done.

 

Bizarrely in England and Wales, victims are not considered ‘parties’ at any Tribunal hearings, including those considering the release of mentally disordered offenders who have committed serious, and often murderous, violence towards them or their loved ones. The Parole Board considers the release of certain prisoners who have committed serious crimes. It has come in for significant public criticism after the Warboys case, and as a result are taking serious measures, including new practice guidance, to deal with victims better. As yet the Tribunal system hasn’t had its Warboys moment.

 

So perhaps it’s useful to compare and contrast how victims are currently treated by the Parole Board and by the Mental Health Tribunal when considering the release of people who have committed serious violence:

At the Parole Board victims can make a victim personal statement.

–    At Mental Health Tribunals they are expressly forbidden from making personal statements.

 

At the Parole Board victims can attend the hearings.

–    At Tribunals while it’s theoretically possible for victims to attend, in practice this never happens. (Victims can attend in Scotland though)

 

At the Parole Board victims can get a summary of reasons for its decisions.

–    Tribunals don’t give any reasons to victims.

 

At the Parole Board victims can challenge decisions.

–    Victims cannot challenge any decision taken by Mental Health Tribunals (only patients can).

 

But most importantly there’s no effective mechanism for victims to raise concerns to Tribunals about a patient’s risk.

 

Around 80% of the victims of homicides by people with serious mental illness are their family members, friends, or acquaintances – they are the ones potentially most at risk if someone becomes unwell again after release.

 

Our experience of talking to such families is that they often have key risk information which does not make it into the medical and social work reports on which the Tribunals make their decisions, (as Stuart Lay’s family did). We’ve had several cases where detained offenders have rung up family members from secure hospitals, disclosing graphic details of the index offence, or making inappropriate comments, sometimes, even threats – of which mental health professionals were completely unaware.

 

So how can Tribunals be sure they are aware of all the risks if they never talk to victims?

 

I believe the quality of Tribunal decision-making, particularly around public protection, is open to serious question.

 

According to the CQC, Tribunals conditionally discharged 527 restricted patients in 2017. The same year exactly half this number – 264 patients – were recalled to hospital, because something serious happened, related to their mental disorder, that increased their risk to the public.

 

• A recent academic long term study found that 44% of offenders discharged from a medium secure psychiatric unit in Leicester were re-convicted following release (368 patients) – mostly for assault. Nearly 30% (109 patients) were convicted of a grave offence (robbery, arson, wounding, attempted murder, or rape).

 

• Another study on patients released from High Secure Psychiatric Hospitals found 38% were re-convicted – 26% of them for serious offences (51 patients).

 

But remember not all offending results in prosecution or conviction – as it is often diverted away from the criminal justice system. So offending rates by these patients will be significantly higher.

 

• One study of forensic patients with schizophrenia released from a psychiatric secure unit in South East London found two thirds of the total – 67% – reoffended violently.

 

These are patients who (unlike most prisoners) will have had years of intensive therapy to address their illness and offending behaviour. They are considered by the Tribunal to be safe to be released, yet many still commit serious violence and grave offences in the community.

 

Surely we can do better than that?

 

The Tribunal’s current system for engaging with victims of mentally disordered offenders is not working.

 

Until now it has depended on victims opting in at the height of their grief, without proper support, when the practical consequences on decisions years in the future are extremely difficult to comprehend. It’s not surprising take up is small. Recent figures show only 40% of all eligible victims sign up to it. At times in some geographical areas only one in three do.

 

What we are allowed to say is so restricted and limited that it doesn’t inform the Tribunal or help victims in any meaningful way. We are allowed only to comment on conditions for release – which experience shows (but nobody ever mentions), are often unenforceable.

 

I’ve heard it argued that Tribunals are constrained by the law and their rules – and that the need for the confidentiality of the patient is paramount and overrides any other considerations. I’m not a lawyer but it seems to me there are plenty of judgments which suggest that Tribunals could and should become much more transparent and accountable.

 

In a 2016 Supreme Court judgment Lady Hale said: “the principle of open justice is one of the most precious in our law. It is there to reassure the public… that our courts are indeed doing justice according to law.”  She noted however that there was a long-standing practice not to name mental patients in proceedings about their care, treatment or property.

 

But then she said there is a difference between cases where a court is acting in a patient’s own best interests – and cases that are concerned with “the proper management of a patient who has in the past been dangerous”.

 

In the case of Michael Stone (who was convicted of killing a young mother and her daughter when mentally disordered) Mr Justice Davis considered the balance between Article 8 (respect for private and family life) and Article 10 (freedom of expression) rights of the European Convention on Human Rights. He determined that Mr Stone’s right to privacy was reduced because “the need to seek privacy arose from his own criminal acts”.

 

In my view Tribunals could easily be more transparent and accountable to victims if only they had the will to do so.

 

In fact it’s arguable Tribunals already have discretionary powers to disclose information – Tribunal Rule 14(7), they just choose not to use them.

 

We need at the very minimum to afford the same rights and entitlements to victims at Tribunals that they currently enjoy at Parole Board hearings.

 

The experience of the Court of Protection and now the family courts may offer a way forward. Last month the President of the Family division launched a ‘Transparency Review.’ It asks:

 

• “Is the line currently drawn correctly between, on the one hand, the need for confidentiality for the parties and children whose personal information may be the subject of proceedings in the Family Court, and, on the other hand, the need for the public to have confidencein the work that these courts undertake on behalf of the State and society?

 

• if not, what steps should be taken to achieve either greater openness or increased confidentiality?”

 

These are highly pertinent questions. But they refer to the care of innocent children, not the release of restricted patients who have committed very serious crimes – where the need for public confidence derives from the serious risks posed to the public.

 

The current Mental Health Tribunal system is risky, and is not fit for purpose. It is too secretive. It is not open to any form of public scrutiny or accountability whatsoever. The public has no way of knowing if Tribunals are doing even a moderately adequate job in keeping patients, their families, and the public safe.

 

They certainly don’t consider victims in any meaningful way at all.

 

The system badly needs balance and reform.  Victims need to be considered and heard at Tribunals.

 

We want to be safe. We don’t want to be victims again.

Julian Hendy

Hundredfamilies.org                                                         

March 2020

Further Reading

 

Acknowledgements: I’d like to thank all those who offered comments and suggestions on earlier drafts of this article.

Julian Hendy is an award-winning documentary filmmaker. He is the founder of the Hundred Families charity, which supports and advocates for families across the UK bereaved by homicides by people with mental illness. Hundred Families works with the NHS, Ministry of Justice, and others to promote lasting improvements in services and to prevent further tragedies.

http://www.hundredfamilies.org