Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20)
MHT video hearing guidance This document contains information under the following headings: (1) Before the hearing; (2) Listing hearings; (3) PHEs [see comments]; (4) Uncontested References where patients do not want to attend a hearing [see comments]; (5) Connecting to a video hearing; (6) The hearing; (7) At the end of the hearing; (8) The written decision.
Heading numbers relate to heading numbers in the guidance document.
1. Before the hearing
The medical records direction mentioned is 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).
The information documents mentioned are believed to be:
- (a) community patients: Not on MHLO yet.
- (b) patients with a learning disability: HMCTS et al, 'Mental Health Virtual Tribunal: An Easy Read Guide' (22/7/20).
- (c) CAMHS patients: Mental Health Tribunal, 'Important Information about your Mental Health Tribunal Hearing for CAMHS patients' (27/5/20).
- (d) Adult patients: Mental Health Tribunal, 'Help for users' (15/4/20).
This guidance was introduced following the case of Re C  MHLO 48 (FTT) in which a salaried tribunal judge decided that the Pilot Practice Direction (which pre-dates this guidance and states that no PHE is practicable) is subordinate to the rules and that in video-enabled hearings with a full panel a pre-hearing examination is practicable by that means.
The policy on PHEs in this guidance is 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". It is submitted that 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.
The guidance was incorporated into Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) and considered by the Upper Tribunal in EB v Dorset Healthcare University NHS Foundation Trust  UKUT 362 (AAC). The UT decided that circumstances are "exceptional" if, contrary to the deeming provision, a PHE is practicable, and gave some guidance on what is covered by practicability. In other words, "exceptional" merely refers to an exception to the deeming provision, and the new procedure adds nothing substantive to rule 34.
4. Uncontested References where patients do not want to attend a hearing
The policy here 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". It cites rule 2A Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 but must mean the new rule 5A of the usual tribunal rules which was inserted by rule 2 Tribunal Procedure (Coronavirus) (Amendment) Rules 2020.
The new power to dispose of proceedings without a hearing can be used when 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 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.