Civil justice system - pandemic response: research findings

5. Mental Health Tribunal for Scotland

Key points

• The nature and high volume of the MHTS's case work resulted in a very rapid move to telephone hearings during Covid which has had a lasting impact on the working arrangements of all relevant professionals and the availability of choice for parties, despite a phased return to in-person hearings.
• Phone hearings were viewed as having positive and negative impacts on parties' wellbeing depending on individual needs. They were viewed as potentially more suitable than in-person or video hearings for some parties, such as some young people, whereas in-person hearings were seen as more suitable for those with conditions such as Alzheimer's and other forms of dementia.
• Existing barriers to engagement and participation experienced by some MHTS parties were believed to have been exacerbated by the use of telephone hearings.
• Legal representatives, independent advocates and family members reported finding it harder to offer advice, representation and support to parties in telephone hearings, particularly if attending from different locations.
• The use of telephone hearings in the MHTS has had negative impacts on the health and wellbeing of legal representatives, despite some gains in work-life balance and efficiency through the use of electronic documents.
• MHTS panel members agreed that choice and flexibility regarding the mode of hearing are essential, and that decision-making should be based on the party's needs and wishes wherever possible.

Overview of MHTS cases and the use of remote hearings

The two primary functions of the Mental Health Tribunal for Scotland (MHTS) are to consider and determine applications for compulsory treatment orders (CTOs)^[93] and to consider appeals against compulsory measures made under the 2003 Act. A CTO specifies a number of conditions that allow for a person to be treated for their mental illness in hospital or in a community setting.

The Tribunal discharges its functions through three member panels consisting of a legal member, who acts as convener, a medical member and a general member. An application for a CTO is made by a Mental Health Officer (MHO), who is a specially trained social worker with duties under the 2003 Act. Responsible Medical Officers (RMOs), patients or their named persons (see below) may also make certain types of application.

The individuals who are the subjects of hearings at the MHTS are referred to as 'patients' by professionals and tribunal members and in all relevant legislation. Patients may be in hospital at the time of their hearing or in a community setting, including in their own home. In either case, they will be entitled to attend and to participate in the hearing.^[94] Their attendance is expected but is not compulsory. Sometimes the individual may be unable to attend at the time of the hearing, for example due to ill health, or may decide that they do not want to attend. In either case, the hearing can go ahead without the patient present.

Patients are sometimes supported by an independent advocate (IA) whose role at the hearing will vary depending on the needs of the individual.^[95] The IA does not advise or represent the patient but will communicate their views if needed, usually by preparing a written statement in collaboration with the patient using the individual's own words wherever possible. In some cases, where the patient is unable to convey their thoughts and wishes directly to the IA, the advocacy will be 'non-instructed' and the IA will find alternative ways of communicating to ascertain the party's views.

Individuals known as 'curators ad litem' may be appointed in some cases to represent the patient's interests.^[96] This may be appropriate where the individual is incapable of understanding the proceedings and does not have anyone to represent their interests, for example because they do not have the capacity to appoint a solicitor.

Family members, friends or carers of the party may perform a variety of functions at the hearing: providing moral and other support to the patient with no formal function, or as the patient's 'named person' (NP) with the primary role of looking after their interests.^[97] An NP is also a party to the case so that the views of the NP must be taken into account by the Tribunal, unless it is unreasonable or not practical to do so.

All patients and all NPs are eligible for non-means tested legal aid for proceedings before the Tribunal (most of the parties, including NPs, interviewed for this research were legally represented).^[98]

Hearings before the MHTS may involve multiple participants and it is usual for there to be seven or more people in attendance – for example, the patient and their legal representative, IA and supporter or NP (who may also have a legal representative), the MHO and/or RMO, alongside members of nursing staff, may all be in attendance as well as the three Tribunal members.

The MHTS is a high-volume tribunal with the number of applications continuing to rise in recent years. In 2021/22, 5,105 applications were received compared with 5,095 in 2020/21, 4,631 in 2019/20 and 4,605 in 2018/19.^[99] CTO applications constitute the largest percentage of applications received, followed by applications to revoke short-term detentions.^[100]

Prior to the pandemic, MHTS hearings took place in person in hospital or community settings. The Tribunal has a statutory obligation to provide adjudication in the range of cases specified under the Act.^[101] Furthermore, where an application for a CTO is made under section 63 of the Act for a person currently detained in hospital, a statutory time limit of five working days from the expiry of a patient's short-term detention certificate applies. Thus, with the onset of the pandemic:

"It would not have been acceptable to cease consideration of applications, bearing as they do on vital questions involving the liberty of individuals and serious issues relating to mental health."^[102]

All MHTS hearings were therefore moved to telephone conference calls with effect from 23 March 2020. From the time that this change was implemented to 31 March 2021, over 5,000 hearings took place by telephone.^[103] In July 2020, the Tribunal held its first in-person hearing in four months, with a small number continuing to take place for those patients for whom a remote hearing was unsuitable. This was limited by the restriction of suitable venues which in turn was dependent on access to relevant buildings being permitted and precautionary health measures being in place.^[104]

In August 2020, the Tribunal held its first video hearing. In May 2021, the President of the MHTS reported that videoconferencing technology had "been used for 20-30 hearings and remains available for some hearings".^[105] By the end of November 2021, in- person hearings were restored to eight hospital venues, although the arrival of the Omicron variant in December 2021 meant that they were temporarily withdrawn in most cases until February 2022.^[106] By January 2023, video hearings were available at four hospitals^[107] and it was possible to schedule in-person hearings at 23 hospital venues across Scotland by completing a Hearing Preference Form when lodging an application either as a party or on behalf of a party as their legal representative or family member.^[108] In her introduction to the 2021/22 annual report, the President noted that "the completion rate of these [hearing preference] forms remains low, a matter which we are seeking to address".^[109] At the time of writing, there was no publicly available data on the exact number of in-person hearings that have taken place since the pandemic.

Existing evidence on remote hearings in the MHTS

In-house research

In May 2021, as a supplement to its newsletter, the MHTS produced a summary of the findings from in-house research.^[110] This report provided some quantitative comparisons of patient attendance at hearings between the years 2019/2020 and 2020/2021 as well as the results of a small study gathering semi-structured written or telephone feedback from 13 patients who had attended telephone hearings.

The comparison of patient attendance at hearings pre- and post-Covid was undertaken because of a concern about a potential decline in attendance with the move to telephone hearings.^[111] However, the statistics show that, despite an overall increase in the numbers of applications, patients' attendance rates remained fairly static: the range of monthly attendance rates over the two years was 53-56% in 2019/20 and 49-58% in 2020/21.

The small patient feedback study found that most agreed it had been easy to join telephone hearings. Suggestions for improvement included the need for better audio quality and changes to the process, such as the need for an advance agenda and clearer instructions about when to speak. When asked their preference for an in-person or telephone hearing in the future, there was no consensus: of the eight who had attended both types of hearing, two were neutral, three indicated that they would prefer a telephone hearing, and three that they would prefer an in-person hearing.

The report, which was used to improve certain aspects of telephone hearings, noted that conveners should take time to explain proceedings, particularly to those appearing for the first time, and to ensure that all parties can hear clearly, checking at intervals that this remains the case.^[112] It concludes by noting that, although there was nothing to suggest that telephone hearings are not appropriate:

"The role of the convener in explaining and conducting the hearing is critical to the success of the hearing, perhaps more so than when the participants are gathered in a tribunal venue."^[113]

Feedback through the service users' forum

As part of its engagement with stakeholders, the MHTS holds two meetings per year with service users, carers and advocacy workers which, since lockdown, have taken place online. At its meeting in May 2022, the stakeholders group discussed modes of hearings.^[114] This highlighted themes including: the central importance of patient choice; the importance of systems working across the board, since the MHTS is legally obliged to provide a good service to everyone; the need to take account of digital disadvantage in determining mode; the greater flexibility afforded by telephone conference hearings; and environmental questions around choice of mode and impacts of travel.

Feedback from attendees on their experiences of the different types of hearings found that:

• There was a mix of patient preference between telephone and other types of hearings. Some were apprehensive about technology and appreciated face-to-face interaction with tribunal members. Some found remote hearings, including video, quite confusing.
• Hybrid hearings were thought not to work so well (although it is not specified why this was felt to be the case).
• Informed choice is important to support patients' participation. It was suggested that a document with the pros and cons of each type of hearing might assist with patients' decision-making about what type of hearing would suit them.
• Patients appreciate having advocacy workers physically with them (as opposed to in a separate location) during telephone hearings.

These findings are broadly in line with those resulting from the quantitative and qualitative research conducted for the current project, which are presented below.

Wider reviews of mental health law in Scotland

September 2022 saw the publication of two comprehensive reports on mental health law and its operation in Scotland.^[115] Both are broader in scope than the current research. However, many of their conclusions relate to issues raised in the qualitative findings presented below, for example in respect of parties' participation and available levels of support, particularly in community settings,^[116] and those relating to the need to guarantee assistance with communication and the appointment and role of named persons.^[117]

Overall attitudes to remote hearings in the MHTS

The remainder of this chapter discusses findings from the survey of professionals and from qualitative interviews with professionals and parties conducted for this research. As discussed in chapter 1, the profile of respondents to the professionals survey with experience of MHTS cases was very heavily weighted towards health and social care professionals involved in making applications for CTOs (RMOs and MHOs). It is important to keep in mind when interpreting the survey data on remote hearings in the MHTS that views will be skewed to the perceptions of this group and may not be representative of other groups of professionals within the MHTS such as panel members, legal representatives or IAs. This imbalance is not replicated in the qualitative research for which in-depth interviews with a range of different professionals were conducted.

Given that remote hearings in the MHTS took place almost exclusively by telephone until November 2021, it is unsurprising that far more MHTS respondents had experience of this compared with video hearings (486 vs 119). Moreover, in contrast with respondents commenting on the other hearing types covered by this research, those in the MHTS were more positive about the use of telephone hearings, both in general and for evidential hearings – 79% said telephone hearings worked very or fairly well in hearings where evidence was heard, compared with 39% who said the same for video hearings (see Annex A, Table A.1c). This relatively high positive rating for telephone hearings is likely to reflect the views of health and social care professionals who will typically attend in their role as RMO or MHO, often as part of a busy working day, and for whom the convenience of phoning in may be of paramount importance. Other participant groups (professionals and parties) in the qualitative research had different views of telephone hearings and were generally less positive about their experiences of them (see below).^[118]

Qualitative data on views of remote hearings in the MHTS collected for this study included interviews with six parties (three patients and three named persons (NPs)), six independent advocates (IAs), two legal representatives and a group discussion with six tribunal members. As discussed in chapter 1, ideally the researchers would have interviewed more parties, but as they proved particularly difficult to recruit within the time frame, the number of interviews with IAs was increased as a 'proxy' for hearing from parties directly.

Most participants acknowledged that telephone is an easy medium to use and is familiar to most so that no special training or complex instructions are needed. Technical difficulties were reported to be both reasonably rare and to have reduced over time. However, there was no clear consensus among either professionals or parties in terms of their preference between telephone and in-person hearings. Phone hearings were seen as suiting some patients, such as some young people and those with PTSD, whereas in-person hearings were deemed to be more suitable for those with cognitive difficulties and some of those with conditions such as Alzheimer's and other forms of dementia.

This point can be illustrated by two examples provided by IAs who work with different groups of service users:

• One IA who works with children and young people aged 6 to 21 years in various settings including schools, care centres and hospitals was very positive about telephone hearings, noting that those she had worked with reported that they preferred them as "they don't have to look the parent, doctor, [panel] chair in the eye" and that they liked the informality of being in a familiar setting, such as home or school.
• Another IA who provides advocacy services for those under short term detention orders and CTOs outlined an example of a party with early onset dementia who, having joined a telephone hearing alone from her home, struggled to connect, had difficulties using the telephone for this purpose and found the whole hearing very confusing as she was unable to see anyone.

Views about the use of video hearings were less clear, probably because it has been the least used mode for MHTS hearings to date although, when asked about the future, most IAs and parties interviewed for this study expressed a preference for the option of using video over telephone if hearings remain remote.

Perceived impacts on access to justice

Access to the formal legal system and to a fair and effective hearing

Most survey respondents with experience of the MHTS felt that access issues and issues around participation and understanding were relatively uncommon for those joining MHTS hearings by telephone. However, substantial minorities felt parties experienced a range of issues that might limit their access to a fair and effective hearing and a clear outcome in telephone hearings:^[119]

• 34% said it was at least fairly common for parties to experience technical difficulties joining telephone hearings
• 31% said it was at least fairly common for parties to experience difficulties speaking to a representative during a hearing
• 26% said parties commonly experienced difficulties understanding questions asked
• 12% said it was common for parties to have difficulties understanding the decisions made (See Annex A, Table A.2c for more detail).

Survey respondents were divided over whether a legally represented adult subject to a compulsory treatment order would find a telephone hearing easier than face-to-face or vice versa – 23% felt a telephone hearing would be easier for these parties, 33% that face-to-face would be easier, and 33% felt they would be about the same (Annex A, Table A.4c). However, on balance MHTS respondents were almost twice as likely to feel that an unrepresented adult would find a face-to-face hearing easier as to say they would find telephone easier (37% vs 19%, with 35% saying they would find them "about the same"). As with family law and commercial respondents, MHTS respondents were also much more likely to feel that a legally represented adult with a learning disability would find face-to-face hearings easier (58%, vs 11% who felt telephone hearings would be easier).

Joining hearings: technology, location, support

There was a perception among both legal representatives and IAs interviewed for this research that many patients decide not to attend MHTS hearings when they find out the hearing will take place by telephone. However, as discussed above, data collected by the MHTS in the year before the move to telephone hearings and the year in which hearings were conducted predominantly by telephone show little change in patients' attendance in the year following the move to telephone hearings.^[120]

Participants across all of the groups interviewed expressed concern about the impact of inequalities relating to digital and other resources on parties' (patients and named persons) ability to join and take part in remote hearings. In addition to the inequalities discussed in previous chapters (lack of digital and technical know-how and ability of some patients; lack of access to suitable equipment; and variations in WiFi/telephone connectivity depending on geographical location) issues around the location from which patients are able to join and the support available to them to enable them to join in a safe, supported manner were also raised.

Variations in different hospital settings were noted by both parties and IAs, with some offering dedicated facilities for patients to attend hearings and others relying on the availability of a nurses' office or shared patients' space and/or the use of a busy ward phone or personal/borrowed mobile phone and/or poor WiFi connection. Children's facilities were generally described as comfortable and fit for purpose, but it was noted that some children are placed in adult facilities.^[121]

Professionals noted a reluctance for discharged patients to want to return to a hospital setting for a hearing, even if that option were widely available. This is understandable given that they may associate hospital with being very ill, being detained and assessed against their will, and being prescribed non-consensual medical treatment. If the hearing is by telephone, community patients are thus more likely to attend from home, which can create challenges if they are attending alone. As one party noted:

"…what happens if the person goes into a crisis during the hearing? There are health and safety reasons why they should be face to face. Who would help someone in crisis?" (MHP03, MHTS patient).

Interviewees also discussed some specific challenges around the support available to patients to enable them to access and participate in hearings. This support may be provided by a legal representative, an IA, a friend or family member or, for those joining from hospital, a member of the nursing staff.

Legal representatives take different approaches, with some travelling to be with the client during the telephone hearing and others dialling in from a separate location (reasons for which are discussed further below, under Impacts on professionals' wellbeing and work-life balance). The small number of legal representatives interviewed (two) agreed that they would rather attend an in-person hearing with their client as they felt communication and client participation were hindered when joining remotely from separate locations. These views aligned with the concerns expressed by tribunal members about solicitors' ability to give advice and to receive instructions, for example to challenge evidence, during remote hearings:

" (In) the majority of cases the solicitor and/or advocacy worker, but particularly the solicitor, is not in the room with their client to take instructions. I am amazed how often, and I haven't spoken to solicitors about this in private practice, but they seemed to be prepared to do it like that. I just don't think it can be easy to do the best for their client." (MMH02, MHTS tribunal member)

The location of the IA also varied following the move to online service provision as a result of the pandemic restrictions, with most of those interviewed attending from a separate location from the party. Likewise, geographical distance and other factors meant that NPs and family members also joined from different locations. This meant that some patients joined the call alone. Tribunal members expressed concern that this could impact negatively on the patient's wellbeing as well as on their ability to participate in and understand proceedings.

On the other hand, when friends or family are physically present when patients join a remote hearing, this can also be problematic. Issues of privacy may arise in relation to family members including children being in the home when the hearing takes place and, thus, able to overhear proceedings. The patient being alone with their NP can also be the cause of difficulty:

"What about if the patient has a difficult relationship with their named person? This isn't unusual - relationships can be unbalanced and even violent - how would the panel and professionals know if they are on a phone?" (MHP01, MHTS patient)

If the person is in hospital at the time of the hearing, they will generally be accompanied by a member of the nursing staff who often helps with joining the call and may provide other practical or technical assistance. However, if the medical care provided is being challenged, this too may present a feeling of discomfort or even conflict making the patient less willing to speak out at the hearing:

"…with the greatest respect to medical staff, it is a bit of a power dynamic isn't it, an unequal power dynamic to have them there… if they wanted to say, 'I think their treatment is shocking' or 'I don't agree with this', to have to say it in front of the very people who are trying to provide the treatment." (MMH05, MHTS tribunal member)

Participation and engagement

In general, patients and family members reported that, although they were apprehensive about joining a telephone hearing and would have preferred to attend in-person if possible, the experience of participating had been better than they anticipated. Some noted unexpected positives, such as the ability to use the mute button and vent when the evidence presented or discussion of it became difficult to hear or overwhelming, something that is not an option in person.

On the other hand, patients themselves noted that, in comparison with in-person hearings, they could experience a lack of a mental connection to telephone hearings, meaning the process did not seem as real. Therefore, although it might seem easier, less stressful or more comfortable to join by phone from home, concerns were voiced by patients about whether this was, in fact, a good thing given the high stakes at play, such as loss of liberty and/or decisions about the continuation of compulsory treatment. For example, despite being able to join from home with his partner and dog at his side, one individual noted that he was "not sure whether it is quite right" that the telephone hearing felt less stressful as the hearing would determine his freedom and "I just had a coffee and got back to work" (MHP01, MHTS patient).

Participation and engagement mean different things to different people and even patients who are unable to actively join in might benefit from being able to see the other participants rather than only hearing the proceedings. A family member (and named person) of one patient (T) who had joined from hospital and was very ill at the time of his hearing recounted that T did not have a good understanding of what was happening and did not understand the nature of the hearing despite good support from his IA. It was very difficult for T to follow things by phone and he had only met his solicitor, who joined from a different location, once before. Although T did not take part directly and his IA spoke for him, his family member felt that video would have enabled T to get a sense of what was being said about him and by whom.

Family members themselves may also experience MHTS hearings as very upsetting and stressful and the use of telephone was perceived to exacerbate this in some cases. A family member who attended a hearing as an NP found the experience to be "process driven and clinical" and worried that the panel could "miss people's vulnerabilities" without visual cues. Although the convener and panel members were good at encouraging engagement, this individual found it hard to participate:

"It is a very emotional experience for family members and this should be more accounted for especially as it is harder to engage remotely and phone is especially hard." (MHP05, Family member)

Regardless of hearing mode, the patients, family members, legal representatives and IAs interviewed almost unanimously agreed that MHTS panel members do their best to make sure that the patient, named person and others can contribute as far as possible. The convener is seen as critical in this respect as he or she will manage and steer the proceedings. Participants noted that conveners are generally very good at this.

Body language

In common with the other case types discussed in this report, patients, family members, IAs, legal representatives and tribunal members all voiced concerns about the loss of non-verbal cues and body language when hearings are conducted by telephone. In the context of MHTS hearings, this inability to 'read the room' was seen as having potential consequences for patient welfare:

"…there have been a couple of occasions where we as a panel…have not realised how distressing some information may have been for somebody until the point that we have gone to them, and we actually realise they are in tears. That is obviously not an experience you want anybody to have." (MMH06, MHTS tribunal member).

Similar to the hearings outlined in other chapters, tribunal members were also concerned that only being able to hear the voices of witnesses and parties (patients and named persons) meant that they might miss important nuances in the evidence presented. However, as in earlier chapters, alternative views were offered by some tribunal members that the use of telephone may remove the risk of (unjustified) assumptions based on a person's appearance or demeanour.

Legal representatives and IAs noted that some patients, notably young people and those with acute anxiety, actually prefer telephone hearings as they do not want to be seen or to see the tribunal panel and medical witnesses talking about them. As one IA commented:

"Professionals might find body language useful but do young people?" (Prof_MHAdv_07, Independent Advocate)

Impact on timing of decisions

When hearings are held in person, parties and representatives are sent out of the hearing room at the end of the hearing so that the tribunal members can discuss the evidence and reach a decision. The time before the party is called back to be told of that decision varies but, in the experience of the legal representatives interviewed, is usually between 20-40 minutes. In contrast, at the end of an MHTS remote hearing, the convener will sign off and invite the patient, named person and their legal representatives to phone back within a certain timeframe once the panel has conducted its deliberations and reached a decision. One legal representative who attends from the same location as his clients noted that this timeframe can be "shockingly short" with some told to phone back in as little as five minutes.^[122] The effect of this on the patient, for example if the decision is that they are to be detained for six months, can be devastating and is perceived as showing a lack of respect for them, making them feel that their case (and they) have not been taken seriously and that the outcome is a foregone conclusion.

Impact on the outcome of decisions

None of the professionals interviewed reported any discernible impact on the decisions taken or the outcomes of hearings when conducted by telephone as compared to in person. Some expressed the view that outcomes were unaffected because the orders being reviewed or appealed are rarely lifted or amended whether the hearing takes place in person or remotely because decisions are based on medical evidence which would be the same in either case.^[123]

Medical tribunal members reported some dissatisfaction, however, with the circulation and agreement of the written outcomes document known as the 'Full Findings and Reasons' (FFR) for corrections. Following the end of an in-person hearing, the panel will jointly agree a form of words, whereas in remote hearings FFRs are drafted by the legal member with a discussion about what to include sometimes conducted with other members by text message and full drafts shared by email. Medical members reported being less likely to ask for substantive changes in this format beyond the correction of typos:

"I can only speak for myself, I wonder if people hesitate to question some of the more subtle parts of the FFR, like have we really explained our reasoning properly for this criteria?" (MMH03, MHTS tribunal member)

The view was also expressed that the online format for agreeing FFRs might make dissent more difficult for panel members:

"…when you lose those non-verbal cues and the ability to see how each other is reacting … I think sometimes it is harder for people to disagree constructively." (MMH01, MHTS tribunal member)

Other perceived impacts of remote hearings

Impact on transparency

No impacts on the public transparency of proceedings were discussed, as MHTS hearings are always conducted in private, whether in person or by telephone.

Impact on efficiency

MHTS professionals who responded to the survey were more likely, on balance, to feel telephone hearings took less time than face-to-face ones: 35% said they took less time, compared with 17% who said they took longer. However, around a third (32%) said they were about the same in terms of time, and 17% were unsure or said it varied too much to say (Annex A, Table A.6).

Among those interviewed, all professional groups reported that some specific efficiencies had resulted from the move to telephone hearings. For example, panel members can 'double up' by taking part in two separate hearings on the same day where the parties are in different geographical locations. However, legal representatives and IAs noted that any time saved, for example in terms of travel, was generally filled with other work due to the rise in MHTS cases.

All of those interviewed spoke very highly of the central administration of the MHTS and its management of the swift, decisive and generally smooth move to telephone hearings during the pandemic which had prevented a backlog of cases from accruing:

"The service should be commended for this. In the civil courts by comparison, things were not done well." (MHA01, legal representative)

Another legal representative echoed this sentiment, but noted the need for more staff within the service:

"I can't speak highly enough of MHTS and can only commend the service and how it is run in terms of admin. However, better resourcing is needed as the number of cases rise [there are] not enough clerks." (MHA02, legal representative)

Parties (patients and named persons) had mixed views on the impact of the move to telephone hearings on their own time. Some patients felt that it had had no impact as they were in hospital when the hearing took place and, thus, limited in what they were able to do. Others noted that family members did not have to travel, but also felt they would have been willing to do so, if the hearing had been in person. One patient who was at home in a geographically remote location at the time of his hearing requested an in-person hearing at a location with better WiFi and facilities. This request was denied and his perception was that joining from home with all other participants in different locations took much longer as the hearing was disrupted by various IT issues.

Impact on parties' wellbeing and work-life balance

Interviewees across groups discussed potential negative impacts on parties' wellbeing if hearings were conducted by telephone. Patients and named persons suggested the distress of being "talked about" and having very personal medical evidence discussed could be exacerbated by not being able to see the faces of witnesses and panel members. At the same time, supporting patients through this process was perceived to be more difficult when hearings were by telephone – for example, an IA who works primarily with young people and joined hearings from a different location from the patient felt that this made it very hard for her to offer support, especially if the outcome was difficult. This also had repercussions for her own wellbeing as it could be "hard to switch off".

However, parties (patients and named persons), IAs and legal representatives also reflected on examples of positive impacts from telephone hearings on the wellbeing of certain groups, such as those with social anxiety and/or some young people, including the benefits of not having to be seen or being able to "hide" body language, as discussed above. Another potentially positive impact on the wellbeing of patients, discussed by a medical member of the tribunal, was that, as remote hearings are more strictly chaired and rely more on written submissions, there was less verbal repetition of the individual's medical history and other evidence "that can be difficult or distressing for patients to hear" during a telephone hearing compared with one in person.

Panel members were also of the view that telephone hearings were easier for family members and NPs to participate in, and this could have a positive impact on the patient's wellbeing as well as on that of the relative or NP.

Impact on professionals' wellbeing and work-life balance

The survey results show that MHTS professionals were, on balance, positive (more so than either family law or commercial professionals) about the impact of remote hearings on their work-life balance (68% positive, 8% negative) and wellbeing (47% positive vs 15% negative – 36% felt the move to remote had made little difference either way) (see Annex A, Table A.9).

There was little difference in the views of health and social care professionals and tribunal members^[124] on the impact on their work-life balance: 71% in each case felt remote hearings had been positive in this respect. However, tribunal members were a little more divided than health and social care professionals about the impact on their overall wellbeing: 45% of tribunal members (compared with 51% of health / social care professionals) felt the move to remote had been positive, but 24% reported a negative impact on their general wellbeing (compared with just 9% of medical / social work professionals (see Annex A, Table A.10).

The interview data revealed that improvements in the work-life balance of professionals was strongly linked to the reduction in travel time and overnight stays and the potential to work more flexibly. However, given the demands on those who work as legal representatives and IAs within this busy jurisdiction, work can often expand to fill the time gained.

For legal representatives the move to telephone hearings in the MHTS had thrown up particular challenges that had resulted in negative impacts on their own wellbeing. Those representing community patients were confronted with specific risks to their own health and safety if attending a hearing from their client's home rather than (as in pre-Covid days) at a community hearings suite. This could be a high stress situation due to the instability of some clients, particularly when dealing with the additional trauma of a hearing. One representative spoke of how he has had to deal alone with clients' behaviour, feeling unable to speak openly to the tribunal members on the call who may in any case be unable to hear what is happening if the call is muted. Examples included clients smashing phones, "screaming, shouting, spitting". In a hospital setting this is easier to manage as there will be staff to assist and the convener can send the patient back to the ward. He reflected:

"Phone hearings can be extremely stressful…(legal) trainees cannot be expected to cope with this." (MHA02, legal representative)

This view was echoed by another representative and personal safety concerns were a reason she declines to attend hearings from clients' homes. Although she now travelled less for work and found the administration easier "…representing my clients is much harder" and she felt that managing stressed clients during telephone hearings has had a very negative impact on her own health.

Tribunal members' reflections on their wellbeing focused on how tiring it was to concentrate on the telephone sometimes for up to eight hours. In common with professionals in other settings, it was also noted that reduced social interaction could lead to "diminished job satisfaction" and reduced informal learning opportunities, that might arise when colleagues were engaged in "post-hearing broader discussions" enabling the exchange of ideas and good practice. However, some said that they found electronic paperwork and the remote medium less stressful than in-person hearings. It should be noted that members were quick to downplay their own needs and health impacts and tended to reflect that ensuring the right outcome for the party was the priority. As a legal member commented:

"There is a lot of pressure on the conveners having to juggle everything, they are noting all the evidence, they are managing it all, they are not being able to see everybody, it is a long day. It is straining, but again, I keep coming back to, it shouldn't really be about us, and that is the most important thing for me in all of this." (MMH02, MHTS tribunal member)

Human rights

In addition to the issues discussed above, the question of whether/how the continuation of the use of remote hearings would comply with human rights requirements given the issues at stake, such as the loss of a person's liberty, was raised by legal professionals working in the MHTS. According to a legal representative:

"this is not the MHTS's fault - hospital venues used for hearings before Covid have not been given back and tribunal suites are now being used for other things. The shortening of time of hearings and especially in terms of time taken by the panel to reach their decision…due process is important and so is the client's perception of this." (MHA02, legal representative)

At the time of writing, the MHTS's ambition was that, now remote hearings are not necessitated by the pandemic, patients should have choice over the mode of hearing.^[125] However, the loss of tribunal suites within hospitals during Covid and the lack of tribunal centres or suitable locations for hearings outside of the central belt, particularly in remote and rural areas, were raised as restrictions on choice if the party wanted an in-person or video hearing.

Security risks

Tribunal members mentioned potential additional security risks to the confidentiality of MHTS proceedings relating to telephone hearings. Examples given included that of a rogue participant being on a call and parties joining early/staying later when the panel were engaged in confidential discussions:

"…on two spectacular occasions somebody had logged into the call early, so that the panel had their discussion unaware that there was another person on the call. Now the clerk had the ability to spot the number of people on the call, but on both of these occasions had actually missed that there was an extra person on the call." (MMH03, MHTS tribunal member)

Views on other current and potential adaptations

Tribunal members and IAs reflected on the impacts of moving to electronic documents, largely through the lens of impacts on efficiency. Although the MHTS has always been a paper-free tribunal in its civil work, in hearings relating to an order made by a criminal court (a compulsion order and a restriction order or 'CORO') papers were, until recently, printed and sent out to tribunal members in advance of the hearing. This practice has been discontinued over the past year for reasons of information security unrelated to the pandemic. The increased use of electronic documents was generally welcomed by tribunal members but, as in other contexts, it was reported that managing the volume of papers in a bundle can be challenging in remote hearings, sometimes requiring the simultaneous use of screen, printouts and phone. The paperwork required for MHTS hearings could be lengthy and complex, for example a CORO can be 300+ pages long. The difficulty in managing everything on screen was exacerbated for some tribunal members as not all have the same level of IT skills and/or technical knowledge.

Legal representatives agreed that administration was easier to manage since the paperwork was handled electronically – seen as "one improvement since Covid" (although, as noted above, the increased use of electronic documents has not in fact been led by the pandemic in this context). However, the views of IAs were more mixed. The electronic submission of written advocacy statements and the increased use of email had improved things for some. On the other hand, this group also noted that delays in the party receiving paperwork, including the application papers for CTOs^[126] (which were reported to be received very close to the hearing in many cases), meant the written statement, which must be submitted in advance of the hearing, often had to be prepared "very last minute". Once prepared, the statement is submitted electronically, in advance of the hearing, but:

"I never get a receipt…I have to phone to check whether it was received." (MHA04, independent advocate)

The increased emphasis on written statements associated with remote hearings meant these were experienced as additional pressures.

Panel members had a long discussion on the methods of circulation of the FFR which can vary somewhat depending on different conveners' practices. The shared view is that this should be standardised using secure email for correspondence and circulation with the use of text messaging in this context, however minimal, completely eliminated.

Conclusions

As the survey and interview data show, there are mixed views across the different groups who participated in this research on the past and future use of remote hearings in the MHTS. Given the size and diversity of the tribunal's jurisdiction, this is unsurprising and points toward the need for choice and flexibility regarding mode of hearing and associated arrangements. Many of the research participants offered views on suggested improvements that could be made to remote hearings in the MHTS. These are included in chapter 7.