Mental Health Tribunals - Rules of Procedure
| Author | Michael Butler |
| Pages | 147-159 |
Chapter 15
Mental Health Tribunals – Rules of Procedure
15.1 INTRODUCTION
MHT procedure is decided according to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/ 2699). These Rules, which apply to all First-tier Tribunal hearings within that chamber, are divided into five parts, Parts 1, 2 and 5 being of general application, Part 4 of specific application to MHTs, and Part 3 of application to non-MHT cases. They are supplemented by Practice Directions, issued by the Senior President of Tribunals. This chapter identifies some of the more significant rules, and considers them alongside some fundamental common law principles which apply to the conduct of hearings.
15.2 OVERRIDING OBJECTIVE
Rule 2 of the Tribunal Procedure Rules 2008 provides that the overriding objective of the Rules ‘is to enable the tribunal to deal with cases fairly and justly’. The MHT is expected to give effect to the overriding objective whenever exercising its powers, and parties are expected to help the MHT to achieve this. According to rule 2(2), this means:
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring so far as practical that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively;
(e) avoiding delay, so far as compatible with proper consideration of the issues.
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15.3 PRE-HEARING PROCEDURAL RULES
The following rules regarding pre-hearing procedure are of particular note.
15.3.1 Parties
The parties to MHT proceedings will be (rule 1(3) of the Tribunal Procedure Rules 2008):
the patient, the responsible authority, the Secretary of State (if the patient is a restricted patient or in a reference under rule 32(8) (seeking approval under section 86 of the Mental Health Act 1983)), and any other person who starts a mental health case by making an application.
In the case of a detained patient, the responsible authority will be the hospital managers, in the case of a patient subject to guardianship, it will be the LSSA, and in the case of a CTO patient, it will be the managers of the hospital in which he was detained immediately before the CTO was made (rule 1(3) of the Tribunal Procedure Rules 2008). The nearest relative will only be a party to the proceedings if he makes the application himself.
The Tribunal Procedure Rules 2008 set out that anyone who is a party to the proceedings may:
• receive a copy of any application or reference (rule 32(3));
• appoint a representative to act in the proceedings (rule 11);
• receive a copy of any document provided to the tribunal by any other party (rule 32(3));
• apply to the MHT for a direction (rule 6);
• receive written notice of any direction made by the MHT (rule 6);
• attend the hearing (rule 36);
• receive reasonable notice of the time and place of the hearing (rule 37).
15.3.2 Case management powers
Under rule 5(1) of the Tribunal Procedure Rules 2008, the MHT is given the general power to regulate its own procedure. Under rule 5(2), it ‘may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction’. Examples of directions that the MHT may make are provided in rule 5(3). They include:
• consolidating two or more sets of proceedings;
• dealing with an issue as a preliminary issue;
• holding a hearing to consider any matter;
• adjourning or postponing a hearing.
15.3.3 Provision of reports and other written material
The Tribunal Procedure Rules 2008 place no duty on the patient (or nearest relative) to submit any written material in support of any application or reference, but do require written material from the responsible authority and, in restricted cases, the SSJ.
Information to be supplied by the responsible authority
Written reports should be supplied by the responsible authority within 3 weeks of the application or reference (rule 32(6) of the Tribunal Procedure Rules 2008), or in cases under section 2, ‘as soon as practicable’ (rule 32(5)(b)). These reports will then form the written evidence for consideration at the hearing. Once received by the tribunal, and subject to rule 14(2) (see below), any reports should be circulated to all other parties. The reports to be supplied by the responsible authority are:
• a statement of information about the patient (to include name, date of birth, where the patient is detained, date of admission, name of RC, name of body responsible for aftercare services, name of care coordinator);
• a report from the patient’s RC;
• a social circumstances report;
• a nursing report (where the patient is detained).
Guidance on the content of reports is found in the Practice Direction, ‘First-tier Tribunal, Health, Education and Social Care Chamber, Statements and Reports in Mental Health Cases’, last issued by the Senior President of Tribunals on
28 October 2013.
Information to be supplied by the Secretary of State for Justice
In addition, in all restricted cases, rule 32(7B) of the Tribunal Procedure Rules 2008 requires the SSJ to prepare:
• a summary of the offence or alleged offence;
• a record of any criminal convictions or findings recorded against the patient;
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• full details of the patient’s liability to detention under the MHA 1983 since the restrictions were imposed;
• any further information in the SSJ’s possession that he considers relevant to the proceedings.
15.3.4 Timing of the hearing
Where a patient is detained under section 2, the hearing of the case ‘must start within 7 days after the date on which the tribunal received the application notice’ (rule 37(2) of the Tribunal Procedure Rules 2008). Where a conditionally discharged patient is recalled to hospital, the recall hearing will start at least 5 weeks but no more than 8 weeks from the date on which the tribunal received the reference under section 75(1) of the MHA 1983 (rule 37(2)). Otherwise, the Rules do not stipulate when a hearing must take place, but guidance from HMCTS is that an unrestricted case will be listed for hearing within 8 weeks of any application or reference...
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