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)

2023-07-18 TPC Consultation on hospital-based paper hearings.pdf

Paper reference hearings for hospital-based patients (1) 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. The tribunal suggests that this would be better for patients: its proposal to the TPC talks of giving patients "the right to determine how they want their case to be considered" and "respect[ing] the autonomy of those in hospital", and the conclusion states that "[t]he most important consideration is to ensure patients in hospital are afforded the same right to privacy and dignity as those in the community". However, resources and finances are major motivations: "it is an inefficient use of the Tribunal’s resources to have an oral hearing", given that "[a] judge can typically dispose of between 4 and 8 automatic references in a single day", especially if the Mental Health Bill 2022 is passed and references triple. (2) The TPC seem aware that the proposal could make matters worse: (a) they suggest "safeguarding measures" (noting that "it may be thought that there is a limit to the number of occasions on which a reference should be dealt with on the papers without providing the opportunity for a hearing which would provide additional scrutiny" and suggesting "a requirement that every second or third reference (depending on the statutory duration of each) must be considered at an oral hearing which would be able to hear the evidence of witnesses or call for additional information as required"); (b) they suggest that the rule change might be premature prior to the Bill's enactment ("it may be considered that the proposed changes may not be appropriate if the references occur only every three years as now"); (c) they note that the Senior President of Tribunals would amend the relevant PD to ensure that, contrary to the tribunal's proposal, these decisions for hospital-based patients would be made by a full panel and not a judge alone.

Reply and further consultation

Email addresses

The email address given on the consultation PDF document is tpcsecretariat@justice.gov.uk. This is correct.

The email address given on the Gov.uk web page and on the questionnaire Word document is tpcsecretariat@justice.gsi.gov.uk. This is incorrect, as "gsi" has not been in government email addresses for years now.

Note

The tribunal's proposal refers to temporary coronavirus rule 5A which it misused to avoid oral hearings arising from uncontested references (see Mental Health Tribunal and coronavirus#New rule for urgent hearings used for uncontested renewals).

Rule 35 as shown in paragraph 8 is not the current version as it includes a change that would need to be made ("section 68" to "section 67, 68, 71 and 75") and paragraph 9 should refer to this change.

Paragraph 11 states:

The TPC is aware that the Mental Health Bill is not yet law and it may be considered that the proposed changes may not be appropriate if the references occur only every three years as now as a patient in hospital may then have an oral hearing only every 6 years. The Mental health Bill, at the proposed section 28, provides for references to the Tribunal every 12 months rather than every 3 years as is currently the case.

But under the tribunal's proposals patients might never have an oral hearing. Probably the reference to "only every 6 years" was meant to apply to a scenario in which the rule is changed alongside a "safeguard" of requiring an oral hearing for every other three-year second reference under the current law.

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Download: URL

Type: Consultation🔍

Title: 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

Organisation: Tribunal Procedure Committee🔍

Date: 18/7/23🔍

Date closed: 29/8/23🔍

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