The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005
| Year | 2005 |
2005 No. 519
MENTAL HEALTH
The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005
Made 6th October 2005
Laid before the Scottish Parliament 21th October 2005
Coming into force 14th November 2005
The Scottish Ministers, in exercise of the powers conferred by section 21(4) and 326 of, and paragraph 10 of schedule 2 to, the Mental Health (Care and Treatment) (Scotland) Act 20031and after consultation with the Council on Tribunals and its Scottish Committee in accordance with section 8(1) and (3) of the Tribunals and Inquiries Act 19922, hereby make the following Rules:
PART I
INTRODUCTION
Citation and commencement
1. These Rules may be cited as the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 and shall come into force on 14th November 2005.
Interpretation
2.—(1) In these Rules—
“the Act” means the Mental Health (Care and Treatment) (Scotland) Act 2003;
“appellant” means a person who appeals to the Tribunal under or by virtue of any of the sections of the Act specified in Part III of these Rules;
“applicant” means a person who makes an application to the Tribunal under the Act;
“Clerk” means a member of staff of the Tribunal employed to carry out the administration of the Tribunal or to act as clerk at a hearing of the Tribunal;
“Convener” means the President or a person selected by the President from the panel mentioned in paragraph 1(1)(a) or 2 of schedule 2 to the Act;
“electronic communication” has the meaning given to it by section 15(1) of Electronic Communications Act 20003and “electronic signature” has the same meaning as in section 7 of that Act;
“hearing” means a sitting of the Tribunal for the purpose of enabling the Tribunal to take a decision on any matter relating to the case before it;
“notice” means notice in writing;
“the overriding objective” means the overriding objective described in rule 4;
“party” means–
(a) the person who initiated the proceedings before the Tribunal;
(b) the patient to whom the proceedings relate;
(c) the named person of the patient to whom the proceedings relate;
(d) any person whose decision (which shall include any direction or order, determination or grant of a certificate, but does not include a decision by a court) is the subject of the proceedings before the Tribunal; and
(e) any person added as a party under rule 48;
“patient” means the patient to whom the proceedings relate;
“relevant person” means any party and any other person who sends a notice of response under Part II, IV or V of these Rules indicating a wish to make representations or to lead or produce evidence;
“President” means the President of the Tribunal;
“referee” means a person who makes a reference to the Tribunal under the Act;
“respondent” means the person who made the decision which is the subject of appeal under or by virtue of Part III of these Rules;
“Tribunal” means the Mental Health Tribunal for Scotland and “tribunal” means a tribunal constituted under sub paragraph (1) of paragraph 7 of schedule 2 to the Act to discharge the functions of the Tribunal; and
“working day” means a day which is not–
(a) a Saturday;
(b) a Sunday; or
(c) a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 19714.
(2) Any reference in these Rules to a rule is a reference to a rule in these Rules, and in any rule a reference to a paragraph or sub paragraph is, unless otherwise expressly provided, a reference to a paragraph or sub paragraph in the rule.
(3) Where the time specified by these Rules for doing any act ends on a Saturday, Sunday or a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971 that act is done in time if it is done on the next day which is not a Saturday, Sunday or bank holiday.
Scope of the Rules
3. These Rules apply to the following proceedings:–
(a) applications to the Tribunal;
(b) references to the Tribunal;
(c) appeals to the Tribunal;
(d) reviews by the Tribunal; and
(e) cases remitted to the Tribunal under section 324(5)(b)(ii) of the Act.
The overriding objective
4. The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, expeditiously and efficiently as possible.
PART II
APPLICATIONS TO THE TRIBUNAL
Short-term detention
Application for revocation of short term detention certificate or extension certificate under section 50 of the Act
5.—(1) An application to the Tribunal for revocation of a short term detention certificate under section 50 of the Act shall be made in writing.
(2) The application shall state–
(a)
(a) the name and address of the applicant;
(b)
(b) the name and address of the patient;
(c)
(c) the name and address of the patient’s named person;
(d)
(d) the name and address of the hospital where the patient is detained; and
(e)
(e) a brief statement of the reasons for the application.
(3) The applicant shall sign the application.
(4) The Clerk shall send a copy of the application to the parties.
(5) Upon receipt of the application the Clerk shall fix a hearing as soon as possible.
(6) The Clerk shall send notice of the application to the following persons–
(a)
(a) the patient;
(b)
(b) the patient’s named person;
(c)
(c) any guardian of the patient;
(d)
(d) any welfare attorney of the patient;
(e)
(e) the approved medical practitioner who granted the short term certificate;
(f)
(f) the mental health officer who was consulted under section 44(3)(c) of the Act;
(g)
(g) if the patient has a responsible medical officer, the responsible medical officer;
(h)
(h) any curatorad litem appointed in respect of the patient by the Tribunal; and
(i)
(i) any other person appearing to the Tribunal to have an interest in the application.
(7) Notice under paragraph (6) shall inform the persons–
(a)
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b)
(b) that they are being afforded the opportunity–
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence;
(c)
(c) of the date, time and place of the hearing; and
(d)
(d) that if they wish to make representations or lead or produce evidence, they must respond to the notice within the period specified in the notice.
(8) If a person mentioned in paragraph (6) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall within the period specified in the notice–
(a)
(a) send a notice of response to the Tribunal; and
(b)
(b) send to the Tribunal a copy of any documents the person intends to rely upon at the hearing.
(9) The Clerk shall send a copy of each notice of response and any documents received under paragraph (8) to each party.
(10) Where at the hearing on an application to which this rule applies the Tribunal does not decide the application, it shall fix a further hearing.
(11) The Tribunal may on fixing a further hearing under paragraph (10) do any of the following as it thinks fit:–
(a)
(a) it may give directions as to–
(i) any issues on which the Tribunal requires evidence;
(ii) the nature of the evidence which the Tribunal requires to decide those issues;
(iii) the way in which the evidence is to be led before the Tribunal;
(iv) the exclusion of any evidence which is irrelevant, unnecessary or improperly obtained;
(v) the dates by which any documents or other evidence upon which any relevant person is intending to rely shall be sent to the Tribunal;
(vi) the date by which a relevant person shall send any written representations on the case to the Tribunal; and
(vii) any other matter as is necessary to enable the Tribunal to decide the application as soon as possible;
(b)
(b) take any steps required by rule 53 to secure the needs of a person with communication difficulties;
(c)
(c) appoint a curatorad litem as necessary to meet the circumstances narrated in rule 55(2);
(d)
(d) decide any request or interim application made by any relevant person in relation to the case before the Tribunal.
(12) Before fixing a further hearing and doing any of those things referred to in paragraph (11), the Tribunal shall afford the relevant persons who are present an opportunity to be heard.
Compulsory treatment orders
Application for compulsory treatment order under section 63 of the Act
6.—(1) An application for a compulsory treatment order shall state the matters specified in section 63(2) of the Act.
(2) The Clerk shall send a copy of the application and any accompanying documents mentioned in section 63(3) of the Act to the patient and the patient’s named person.
(3) The Clerk shall send a notice of the application to the following persons:–
(a)
(a) the patient;
(b)
(b) the patient’s named person;
(c)
(c) any guardian of the patient;
(d)
(d) any welfare attorney of the patient;
(e)
(e) the mental health officer;
(f)
(f) the medical practitioners who submitted the mental health reports which accompany the application;
(g)
(g) if the patient has a responsible medical officer, that officer;
(h)
(h) the patient’s primary carer;
(i)
(i) any curatorad litem appointed in respect of the patient by the Tribunal; and
(j)
(j) any other person appearing to the Tribunal to have an interest in the application.
(4) Notice under paragraph (3) shall inform the persons–
(a)
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b)
(b) that an application has been made...
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