Richardson & Machin (Reference Richardson and Machin2000) draw attention to the dual role imposed on the medical member of mental health review tribunals (MHRTs), and to the fact that, having made a preliminary examination, they are unlikely to come to a tribunal hearing with an open mind as to whether or not the patient should continue to be detained.

Having served on a great many tribunals, I can say that tribunal members understand that they must reach their decision on what they read in the reports presented to them, and what is said, in front of them, by the witnesses (including the patient) at the tribunal hearing. Anything that the patient may have said to the medical member at the preliminary medical examination is not evidence, unless it is reproduced at the hearing, and must not be taken into account.

Medical members, not having heard the views of the responsible medical officer and social worker expressed, have not necessarily formed a view of what the tribunal outcome should be before they arrive at the hearing. Moreover, there is nothing in the tribunal rules that says the medical member should discuss or even reveal what he discovered at the time of his examination of the patient, and on occasion I have refused to do so, as such discussion would clearly influence the other members' final decision.

The advantages of the preliminary examination are that it assists the medical member to ask the most appropriate questions at the hearing, and gives him or her the opportunity to peruse the clinical notes, which may contain important information not available in the reports. The disadvantage is that the preliminary examination is time-consuming, particularly if there is much travelling involved, and there are insufficient medical members of MHRTs comfortably to cover the work.

Why, 40 years ago, it was thought necessary for the medical member to make a preliminary examination is not clear, but I imagine it was primarily to allow a tribunal member to look at the hospital notes, without ruffling medical feathers. If it were possible for the notes to be made available to the whole tribunal in the half-hour before the hearing, I would have thought that we could dispense with the preliminary medical examination.