Disposal without hearing (MHT)
A case may not be disposed of without a hearing (rule 35(1)), subject to the following exceptions:
- Decisions under Part 5 of the Rules (‘Correcting, setting aside, reviewing and appealing Tribunal decisions’) (rule 35(2)).
- A s68 reference, where the patient is currently on a CTO, can be disposed of without a hearing if the patient is 18 or over and either:
- the patient states in writing he does not want to attend or be represented and the tribunal is satisfied he has the capacity to decide whether or not to make that decision (it is assumed this means the capacity to make the decision) or
- the representative states in writing that the patient does not want to attend or be represented (rule 35(3)).
- Striking out a case for want of jurisdiction under rule 8(3) (rule 35(4)).
The MOJ, with support from the senior HESC judiciary, proposed that mandatory references for adult patients, unless a party requests or the tribunal directs an oral hearing, should be determined by a paper review procedure; however, this proposal was rejected by the Tribunal Procedure Committee (TPC, ‘Responses to the consultation on possible changes to the Tribunal Procedure (FTT) (HESC) Rules 2008 regarding pre-hearing examinations and decisions without a hearing in the case of references by the hospital or Department of Health’ (23/10/18)).
A temporary power was added 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 (Tribunal Procedure (Coronavirus) (Amendment) Rules 2020). The tribunal’s 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” (Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20)). It was a misuse of the power for the MHT to use it to avoid hearings arising from uncontested references.
A further consultation on the matter is TPC, 'Consultation on possible amendments to the HESC Rules 2008 regarding proposed changes to the way that the FTT decides cases referred to the Tribunal pursuant to s68 MHA 1983' (consultation from 18/7/23 to 29/8/23). The tribunal wants its rule 35 power to determine reference cases on the papers (where an adult patient does not wish to attend or be represented) to be extended from community patients to hospital-based patients. Benefits for patients are cited but clearly resources and finances are major motivations.