Lack of challenge to substantive criteria at mental health tribunals: Amplifying the medical perspective?

Mental health tribunals provide legal safeguards for compulsory treatment for mental illness. Despite one of these tribunals' purposes being to give people subject to compulsory treatment a "day in court", research has shown that individuals' experience of mental health tribunals is highly negative. To understand these negative experiences, we conducted a multi-stakeholder study of the Consent and Capacity Board, a mental health tribunal in Ontario, Canada. Our research revealed that disputes in the hearings tended to focus on procedural requirements of the compulsory treatment orders, and although substantive legal criteria were addressed, the medical conclusions underlying those criteria were not directly challenged. Further, in cases where a client "wins" and the treatment order is revoked, our analysis shows the medical perspective remained authoritative. Finally, although people subject to treatment orders were given a chance to speak at hearings, in most cases theirs was the only voice challenging the psychiatrist's medical conclusions, and their contribution would usually only lessen the chance of the order being revoked. Therefore, we argue that rather than challenging medical decision-making, as may be expected, tribunal hearings unintentionally amplify the medical perspective in a manner that is likely to be upsetting for people subject to the treatment orders. We acknowledge that this effect is ingrained in the current system and will be challenging to ameliorate. Nonetheless, it is an important consideration for those in legal and clinical practice, and policy makers. We give some suggestions about how these experiences could be improved and for further research opportunities.