TPC, 'Reply to Consultation and Further Consultation on possible amendments to the TPR regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s.68 MHA' (consultation from 19/12/23 to 13/2/24)
Paper reference hearings for hospital-based patients The Tribunal Procedure Committee seem aware that paper hearings are inferior to oral hearings and that their proposal would undermine the important statutory protection provided by automatic tribunal references, so now propose to co-opt legal representatives into the so-called "safeguarding measures". Maybe it is hoped that representatives who object on principle will not bother to respond yet again, and other representatives might be happy to receive the same L1+L2 fixed fee (£450) for advising on a potential paper hearing as for fully preparing for an oral hearing. The proposal is "to allow the Tribunal to make a decision on a reference hearing, in respect of a patient detained in hospital aged 18 or over, with capacity and is legally represented, and who has made a written request that they do not wish to attend or be represented at a hearing of their reference, and the Tribunal is satisfied that the patient has the capacity to make that decision".
Extract
19. The TPC understands those concerns but also recognises the right of an individual to choose not to have a hearing if they do not want one and they have the capacity to make that decision.
20. Accordingly, prior to the TPC reaching a decision on this rule change it would like to further consult on including safeguarding measures in the rules. In particular, that in addition to only those patients with capacity being able to request that the case be decided on the papers, it should also be only those patients who are also legally represented. In that way the TPC considers that the representative can challenge the issue of capacity if they deem the client to lack capacity. They can also raise questions concerning the adequacy of reports and the possible need for addenda thereto. It is of course always possible for a patient to change their mind prior to a decision and to request a hearing. However, if a legally represented patient with capacity decides that they do not want a hearing the TPC is of the view that such a decision should be respected.
21. It is therefore proposed that rule 35 is amended to allow the Tribunal to make a decision on a reference1 hearing, in respect of a patient detained in hospital aged 18 or over, with capacity and is legally represented, and who has made a written request that they do not wish to attend or be represented at a hearing of their reference, and the Tribunal is satisfied that the patient has the capacity to make that decision.
Previous consultation
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Type: Consultation🔍 · Consultation reply🔍
Title: Reply to Consultation and Further Consultation on possible amendments to the TP (FTT) (HESC) Rules 2008 regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s.68 MHA
Organisation: Tribunal Procedure Committee🔍
Date: 19/12/23🔍
Date closed: 13/2/24🔍
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