Mental Health Tribunal and coronavirus

See also: Coronavirus resources#Newer resources

This page summarises the changes made because of the coronavirus pandemic and lists the various relevant resources. If you have any further or updated information then please send it in.

Information

Pre-hearing medical examinations

Tribunal rule 34 states that a pre-hearing medical examination must take place "so far as practicable" in certain circumstances. The rule is still in force.

It was decided that it will not be "practicable" under rule 34 for any pre-hearing medical examinations to take place during the pandemic: Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20). The Practice Direction was to last for an initial period of six months (it was superseded by the Amended Pilot Practice Direction mentioned below). No mention was made of video or telephone conferencing, which makes it practicable to hold a full hearing. The reason given in Mental Health Tribunal, 'Help for users' (15/4/20) is that "people cannot meet together".

There was no mechanism stated in the Practice Direction for seeking a medical examination in individual cases. However, following a challenge to an initial decision made under this Practice Direction, a salaried tribunal judge decided that the Practice Direction is subordinate to the rules and that in video-enabled hearings with a full panel a pre-hearing examination is practicable by that means: Re C [2020] MHLO 48 (FTT). Thanks to Ben Conroy of Conroys Solicitors for sending that decision.

After that case, the tribunal published a policy that "it is not practicable under rule 34 of the 2008 Rules for automatic prehearing examinations to take place, unless the Chamber President, Deputy Chamber President or an authorised salaried Judge direct that in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns". This gives no reason for the assertion that PHEs in other circumstances are "not practicable" and no guidance on what is considered "exceptional". PHEs should be requested and taking place in the circumstances set out in rule 34, which is still in force, and which applies to all section 2 patients and other patients who make a request. See Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

That policy is now reflected in Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 15/9/20).

Decisions by single judge

The original Pilot Practice Direction stated that, for an initial six-month period from 19/3/20, every decision, including those that dispose of proceedings, would be made by a judge alone, unless the Chamber President, Deputy Chamber President or authorised salaried judge appoint two or three people: Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20). Panels of one of two may seek the advice of one or more non-legal members to assist in decision-making, provided the advice is recorded and disclosed to the parties. Anecdotal evidence suggests that tribunal judges are reluctant to make use of this facility. It was still possible to argue for a two- or three-member panel.

For the purposes of the general Pilot Practice Direction, former Salaried Tribunal Judges are interpreted as falling within the definition of salaried judges: Pilot Practice Direction: The use of former Salaried Judges (26/3/20).

Hearings taking place on or after 1/6/20 will be heard by a three-member panel (this was stated at the Mental Health Jurisdictional Stakeholders Meeting on 6/5/20). Three-member panels for s2 cases will commence in May (email from MHLA to membership, 11/5/20).

The amended PPD now states that a judge alone may make any decision, as directed by the Chamber President or other approved judge: Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 15/9/20).

Community patient hearings postponed

A decision was made on 26/3/20 to postpone the hearings for adult community patients whose case had not been listed for paper review and whose case was a result of the patient's application or a periodic mandatory reference: Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20). The reasons given state that it is "not feasible or practicable for a community patient under the government's 'stay at home' policy to attempt to participate in a hearing" and mention that deprivation of liberty cases are being prioritised. The postponement decision was stated to last until the expiry of the 19/3/20 Pilot Practice Direction, or earlier if the tribunal directs, and at that point patients or representatives are expected to contact the tribunal with an agreed date. The decision states that parties are at liberty to apply to vary the order and directions in exceptional cases. For an example of a successful appeal against postponement, see Re B [2020] MHLO 18 (FTT).

On 6/5/20 it was decided to list all the postponed hearings because the tribunal had by then "achieved a level of administrative support to be able to list cases for community patients": Mental Health Tribunal, 'Order and directions for listing of community hearings' (6/5/20). The order and directions set out the duties on patients' representatives and responsible authorities in relation to reports, consideration of paper hearings, agreed hearing dates, and remote hearing practicalities. See also this earlier press release: Conroys Solicitors, 'Listing of community hearings' (press release, 6/5/20).

Paper hearings for CTO patients

The existing Tribunal rule 35 allows a CTO case to be determined without a hearing in certain circumstances. This has not changed.

The general Pilot Practice Direction (not the MH-specific one) states that decisions should usually be made without a hearing where the rules permit: Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20).

It appears that the tribunal will actively be suggesting paper hearings to CTO patients: Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20).

New rule for urgent hearings used for uncontested renewals

There is a new power in new rule 5A to dispose of proceedings without a hearing if the matter is urgent, it is not reasonably practicable to hold a hearing (including a remote hearing) and it is in the interests of justice to do so. This was inserted by Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 on 10/4/20. These amendment rules will expire on the same day as s55(b) Coronavirus Act 2020.

Following some anecdotal evidence that it was already happening, the tribunal has stated that its policy is: "If your client is not contesting continuing detention (or a community treatment order) then the case can be decided by a single judge on the papers, without the need for a hearing". This power, intended for urgent matters, has been added to the rules across many First-tier Tribunal chambers. It is a misuse of the power for the MHT to use it to avoid hearings arising from uncontested references. See Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

Timeframe for s2 hearings

Tribunal rule 37 required the tribunal to start s2 cases within 7 days after the date on which it received the application notice.

This was changed to 10 days by Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 on 10/4/20. The amended rules allow the tribunal to ignore the new deadline if it is "not reasonably practicable". These amendment rules will expire on the same day as s55(b) Coronavirus Act 2020.

The change to 10 days (though not the explicit ability to circumvent it) was the subject matter of a consultation which expired on 7/4/20: see Tribunal Procedure Committee, 'Consultation on possible amendments to the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 on the timescale for listing Section 2 hearings' (from 11/2/20 to 7/4/20). The TPC will monitor the effects of the change before making a final decision: Tribunal Procedure Committee, 'Responses to the consultation (on changes to the s2 listing window) and reply from the TPC' (23/6/20).

Listing of cases

On 1/4/20 it was stated that section 2, conditional discharge recall, and CAMHS cases were the priority for listing, and that while other cases were not being listed it was expected that s3 and restricted cases should begin to be listed: Mental Health Tribunal, 'Further update on coronavirus situation' (1/4/20). The tribunal secretariat started to catch up over the summer months.

Remote hearings - guidance

The general Pilot Practice Direction states that all hearings should be held remotely where it is reasonably practicable and in accordance with the overriding objective: Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20).

Guidance for telephone hearings from 23/3/20 was provided in Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20).

Guidance in relation to video hearings, which it was proposed would start to be listed from 13/4/20, was provided in Mental Health Tribunal, 'Video Conference Hearings' (6/4/20).

Guidance for patients can be found in Mental Health Tribunal, 'Help for users' (15/4/20) and Mental Health Tribunal, 'Important Information about your Mental Health Tribunal Hearing for CAMHS patients' (27/5/20).

Guidance for representatives can be found in Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

Other guidance is set out below under the relevant headings.

Announcement of tribunal decision

The initial guidance was that, in order to reduce risk to the clinical team, the decision will not be announced after the hearing in the patient's presence, but instead a short decision to be sent the same day: Mental Health Tribunal, 'Message to the Royal College of Psychiatrists' (Sarah Johnston and Joan Rutherford, 26/3/20). The secretariat sent an email on 1/4/20 stating that they had "asked our Judiciary to take note of a secure email address for those who should receive a copy of the decision".

The current guidance allows the tribunal to decide whether to announce the decision, and either provide a time for the oral decision, or email the decision to the representative and the MHAA: Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

Disclosure of medical records

Responsible authorities are required to allow immediate access to patients' medical records upon receipt of the CNL1 form containing the representative's name and to email without delay any notes specified by the representative: Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives in all cases for the duration of the Pilot Practice Direction' (25/3/20).

Interpreters and BSL

An email sent by the secretariat on 1/4/20 stated that "where an Interpreter is required they will be sent the dial in details through their Agency".

All cases with language interpreters or BSL signers will be allocated a full day's hearing: Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

Sources of information

Case law

  • Direction for postponement of CTO hearing set aside. Re B [2020] MHLO 18 (FTT)The initial decision indefinitely to postpone a CTO patient's hearing (in accordance with Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20)) was set aside by the First-tier Tribunal.
  • Remote pre-hearing examinations are practicable. Re C [2020] MHLO 48 (FTT)(1) A salaried tribunal judge initially refused to allow a pre-hearing examination (PHE) because the coronavirus Pilot Practice Direction states: "During the Covid-19 pandemic it will not be 'practicable' under rule 34 of the 2008 Rules for any PHE examinations to take place, due to the health risk such examinations present." (2) Having treated the rule 46 application for permission to appeal as a rule 6 challenge, a different salaried tribunal judge decided that: (a) the practice direction is subordinate to the rules and overriding objective; (b) in video-enabled hearings with a full panel a PHE is practicable by that means; (c) hearings and PHEs should be conducted remotely as, even if the hospital would allow access, the tribunal will not put its members at risk of contracting or spreading coronavirus; (d) in this case, the PHE would take place by video link on the morning of the hearing. [First-tier Tribunal decisions are not binding.]

Legislation

  • Coronavirus legislation. Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 — Rule 2 amends the MHT's rules: (1) new power in new rule 5A to dispose of proceedings without hearing if the matter is urgent, it is not reasonably practicable to hold a hearing (including a remote hearing) and it is in the interests of justice to do so. (2) section 2 hearings to start within 10 days rather than 7 days, with an explicit power to ignore this deadline if the tribunal considers it "not reasonably practicable". In force 10/4/20. These rules will expire on the same day as section 55(b) of the Coronavirus Act 2020 (public participation in proceedings conducted by video or audio). (3) A further change, relating to public/private hearings is inserted into the part of the HESC rules which do not apply to mental health cases.

Practice Directions and related guidance

Orders and directions

  • Automatic disclosure of medical records. Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives in all cases for the duration of the Pilot Practice Direction' (25/3/20) — Owing to the fact that representatives cannot arrange for patients to sign consent forms, this direction requires the responsible authority: (1) to allow immediate access to the patient's medical and nursing notes upon receipt of the CNL1 form containing the representative's name; (2) to email without delay any notes specified by the representative; and (3) to highlight any information in the notes not to be disclosed to the patient (the representative must not disclose this information without further order of the tribunal).
  • Hearing postponement for certain community patients. Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20) — (1) The hearings of certain community patients will be postponed, unless they have already been listed for paper review. (2) It applies to patients “over 18” (this is meant to mean 18 or over) presumably at the time of the application or reference. (3) The following will be postponed: (a) applications by CTO patients (s66(1)); (b) applications by conditionally-discharged (C/D) patients (s75(2)); (c) periodic mandatory references in the cases of CTO patients (s68(2) and s68(6)). (4) The following will not be postponed: (a) discretionary references for CTO patients (s67(1)); (b) discretionary references for C/D patients (s71(1)); (c) revocation references for CTO patients (s68(7)); (d) recall references for C/D patients (s75(1)). (5) The order purports to postpone periodic mandatory references for C/D patients (s71(2)) but these references are only made for a "restricted patient detained in a hospital". (6) The hearings will take place on the first convenient date after revocation of the Pilot Practice Direction, or earlier if the tribunal orders (the parties are to agree a new listing window after revocation and apply for a new date). (7) All parties are at liberty to apply to vary the order and directions in exceptional cases. (8) The reason given for the order is that (a) it is "not feasible or practicable for a community patient under the government's 'stay at home' policy to attempt to participate in a hearing"; (b) cases where the patient is deprived of his liberty are being prioritised for listing; (c) postponement is proportionate to the "extreme demands being placed on health, social care and justice services by the pandemic"; (d) the case will be relisted as soon as practicable "having regard to any temporary regulations or other priorities that may prevail during the coronavirus emergency".

Guidance for patients

  • MHT coronavirus guidance. Mental Health Tribunal, 'Update on coronavirus situation' (18/3/20) — The position set out in this guidance is that: (1) hearings will continue as planned; (2) hearings require all three panel members, but this may change as part of the contingency plan being prepared; (3) requests to give evidence via telephone should be sent to the mhtcorrespondence email address; (4) hearings are being arranged as telephone conferences when hospitals are in lock-down; (5) listing window extension requests should be submitted to mhtcasemanagementrequests, but extended windows may be part of the contingency plan; (6) the tribunal is pushing for greater provision for paper hearings; (7) pre-hearing medical examinations are continuing, subject to the circumstances of each case, but these could cease if all hearings become telephone reviews. Largely superseded by: Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20).
  • MHT coronavirus telecon procedure. Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20) — The following procedure will apply to hearings from Monday 23/3/20: (1) section 2 and conditional discharge recall hearings will be prioritised; (2) no pre-hearing examinations will take place; (3) new cases will be listed as a telephone conference before a single judge; (4) the judge can seek advice by telephone from that day's allocated medical or lay member, then repeat that advice in the telecon and allow submissions; (5) it is suggested that an unrepresented patient be allowed to speak to the judge without others in the room; (6) it is suggested that the decision is not announced. (See the document for full details.)
  • Guidance to psychiatrists about remote hearings. Mental Health Tribunal, 'Message to the Royal College of Psychiatrists' (Sarah Johnston and Joan Rutherford, 26/3/20) — (1) This guidance to psychiatrists includes the following: all evidence will be taken before a tribunal judge alone, using phone (BT MeetMe) or video; the doctor giving evidence will released after giving evidence except in all but exceptional cases; the patient will not be given the decision orally. (2) To help the tribunal, clinical teams should: (a) submit s2 reports the day before the hearing (to avoid delays); (b) advise the tribunal judge if the patient will be unable to stay in the room or should give evidence first; (c) tell the tribunal judge whether the patient can remain as a voluntary patient (which is no longer possible in many areas); (d) emphasise any limitations of the evidence (for instance if the patient has recently been moved between "clean" and "dirty" coronavirus wards); (e) focus on the statutory criteria; (f) suggest delayed discharge for follow-up to be arranged; (g) give evidence from a private area. (3) The tribunal are encouraging wing members to return to clinical work, and are looking at formats for shorter reports.
  • MHT update including listing. Mental Health Tribunal, 'Further update on coronavirus situation' (1/4/20) — (1) All hearings have been postponed for certain community patients (CTO and conditional discharge), unless they have already been listed for paper review, until the revocation of the coronavirus pilot PD, or earlier if the tribunal directs. (The original summary here wrongly said "all community patients" - apologies.) (2) Section 2, conditional discharge recall, and CAMHS cases are the priority for listing; other cases were not being listed, but s3 and restricted cases should now begin to be listed. (3) Representatives are requested not to call the tribunal unless absolutely necessary, and to seek directions for late reports.
  • MHT telephone hearing guidance. Mental Health Tribunal, 'First-tier Tribunal (Mental Health) update' (2/4/20) — Information in this update includes: (1) all face to face hearings will be changed to telephone hearings for the foreseeable future; (2) the telephone attendee form, including the patient's number, is required 6 days before the hearing (24 hours for s2); (3) at the hearing the tribunal judge will telephone the patient with an invitation to join the call.
  • Public/private hearings and access to recordings. Pilot Practice Direction: Video/Audio Hearings in the First-Tier Tribunal and the Upper Tribunal (2/4/20) — (1) In Senior President of Tribunals, 'Judges' and Members' Administrative Instruction No 4' (14/4/20) it is stated that following the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 amendments there is no need to refer to this PD. (2) This PD, which applies to the FTT and UT, states that (paraphrased): (a) where it is not practicable to broadcast a remote hearing in a court or tribunal building, the tribunal may direct that the hearing will take place in private; (b) where a media representative is able to access proceedings remotely then the hearing is a public hearing; (c) any such private hearing must be recorded if practicable, and the tribunal may consent to any person accessing that recording. (3) None of these changes will have any impact on normal MHT hearings, which are private by default rather than because of this PD; also, the related changes to the HESC rules made by Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 were inserted into the part of those rules which do not apply to mental health cases.
  • MHT video hearings. Mental Health Tribunal, 'Video Conference Hearings' (6/4/20) — From 13/4/20 all cases will be listed as video hearings using the Common Video Platform (CVP), instead of telephone hearings. Telephone hearings had taken longer and made communication more difficult, and it is hoped that video hearings will be an improvement.
  • Further coronavirus guidance. Senior President of Tribunals, 'Judges' and Members' Administrative Instruction No 4' (14/4/20) — This guidance refers to: (1) the Mental Health Tribunal, 'Help for users' (15/4/20) document; (2) the rule changes in Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 (paper hearings, s2 timeframes, and public/private hearings); (3) plans for further or intermittent lockdown, the relaxation of lockdown restrictions, and both the return of existing business and new business; (4) paper case files; (5) some other matters irrelevant to mental health.
  • MHT remote hearings. Mental Health Tribunal, 'Ensuring patients can access justice' (Sarah Johnston DCP, 22/5/20) — This article on the Judiciary website explains the adoption of remote hearing procedures by the MHT.

Guidance for others

  • MHT remote hearing CAMHS guidance. Mental Health Tribunal, 'Important Information about your Mental Health Tribunal Hearing for CAMHS patients' (27/5/20) — This document explains remote hearings in simple language.
  • MHT guidance for patients. Mental Health Tribunal, 'Help for users' (15/4/20) — This guidance explains that hearings will be heard via telephone/video, by a tribunal judge alone ("because we have less support because of the coronavirus"), there will be no medical examination (because "people cannot meet together"), and community hearings will not take place ("because of the difficulties we have in organising hearings here everyone can participate" - unless the patient or representative explains "why your case must go ahead"). Superseded by Mental Health Tribunal, 'Help for Users' (updated, 28/7/20).
  • Tribunal guidance for patients. HMCTS et al, 'Mental Health Virtual Tribunal: An Easy Read Guide' (22/7/20) — "This document will help explain what you can expect if you attend a virtual Mental Health Tribunal hearing."
  • MHT video hearing guidance. Mental Health Tribunal, 'Video Hearing Guidance for Participants in Mental Health Tribunals' (24/8/20) — This document contains the following headings: (1) To connect; (2) The hearing; (3) At the end of the hearing; (4) The written decision.
  • FAQs about HESC hearings. HMCTS, 'Frequently asked questions about hearing arrangements during the coronavirus pandemic' (July-August 2020) — There are FAQs about technology, hearings and mental health tribunals. (1) The technology questions are: (a) What is Kinly CVP? (b) How do I prepare for a Kinly CVP video hearing? (c) Can I test my connection beforehand? (d) I can’t connect to Kinly CVP from my laptop/computer. What do I do? (e) What browser is best for Kinly CVP on my laptop or PC? (f) Can I use a smartphone? (2) The hearings questions are: (a) What if I want a friend to support me at the hearing? (b) What if my hearing requires interpreters or British Sign Language (BSL) interpreters? (3) The mental health questions are: (a) I would prefer to have a face to face hearing; can this be arranged? (b) I want to see the tribunal doctor before the hearing - can this be arranged? (c) I am a community patient and I cannot afford to join the hearing; (d) I need a full day’s hearing; (e) I have had my case referred to the Tribunal but I don’t want to contest it. What should I do? [Unrepresented patients referred to the tribunal "should contact the HMCTS ... and let them know that you are not contesting"!]; (f) Are the hearings private? (g) How will I be given the decision?

See also