Doctors have been found wanting when it comes to understanding legislation relating to mental health review tribunals (Reference Nimmagadda and JonesNimmagadda & Jones, 2008). However, it is clear that Nimmagadda & Jones (Reference Nimmagadda and Jones2008) also are lacking in legal knowledge with regard to the status of doctors as responsible medical officers (RMOs) at mental health review tribunals.

The question of the status of RMOs appearing before tribunals became so controversial that regional chairs of tribunals issued the following guidelines based on the old tribunal rules (J. Wright, personal communication, 2005).

1. 1. The RMO does not have an automatic right to represent the authority.

2. 2. The RMO is entitled to represent the authority under the provisions of rule 10 of the Mental Health Review Tribunal Rules 1983. This is the only means by with the RMO can acquire full rights of representation.

3. 3. The RMO may be permitted by the tribunal to take such part in the proceedings as the tribunal thinks proper pursuant to rule 22(4). This amounts to a form of ‘quasi-representation’ the circumstances and parameters being set by the tribunal.

4. 4. Rule 22(1) states:‘the tribunal may conduct the hearing in such manner as it considers most suitable bearing in mind the health and interest of the patient and it shall, so far as appears to it appropriate, seek to avoid formality in its proceedings’.

The authors make no mention of the potential harm to the therapeutic alliance between doctor and patient by the RMO adopting an adversarial, quasi-legal role at mental health review tribunals (Reference Nimmagadda and JonesNimmagadda & Jones, 2008).

I am not aware of any provision in the new rules coming into force on 3 November 2008 which alters the position (Office of Public Sector Information, 2008). The critical issue was whether the RMO was witness, representative of the responsible authority or both?

Finally, it is important to note that there are also financial risks in representing the responsible authority. Under rule 10 of the new rules, the tribunal may make a wasted costs order, which would be liable upon the individual representing the responsible authority (Office of Public Sector Information, 2008). This could occur owing to lapses leading to adjourned hearings for example.

If members are faced with complex high-risk tribunals where representation under the old rule 10 is necessary, my advice is to instruct a competent and skilled lawyer.