Tribunal Rules

On 3/11/08 the Tribunal systems in both England and Wales changed, but in different ways. In England, the Mental Health Review Tribunals were abolished and became part of the Health Education and Social Care chamber of the First Tier Tribunal. In Wales, the Tribunal remained the Mental Health Review Tribunal for Wales.

England - First-tier Tribunal

Rules

• Tribunal legislation. Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 — These are the rules for the new Health, Education and Social Care Chamber which came into force on 3/11/08. The changes made by the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 have been added to the text below (before that the last update was on 16/8/15).

Coronavirus

• To avoid duplication, all the coronavirus-related documents such as Practice Directions are currently located on the following page: Mental Health Tribunal and coronavirus. In particular, see Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 which amend the MHT's rules.

Practice Directions/Guidance

• PD on Reports. Practice Direction: First-tier Tribunal Health Education and Social Care Chamber: Statements and Reports in Mental Health Cases (28/10/13) — This Practice Direction relates to the contents of reports required for mental health cases. In force 28/10/13 (superseding previous versions).
• Medical examinations. Practice Direction and Guidance: Medical Examinations (11/3/14) — This document, dated 11/3/14, explains the regime in relation to medical examinations in cases received by the tribunal on or after 6/4/14. This page of the website contains a detailed summary of the changes.
• Delegation of tribunal functions. Practice Statement: Delegation of Functions to Registrars, Tribunal Case Workers and Authorised Tribunal Staff on or after 8 July 2016 (7/7/16) — Supersedes Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 (27/4/15).
• Postponements and adjournments. Practice Guidance: Mental Health jurisdiction: Postponements and adjournments following recent changes in listing practice (published 18/7/14) — This document (dated June 2014, published 18/7/14) is based on internal guidance (in January 2014) to salaried tribunal judges and registrars which had set out factors which they 'may wish to take into account' when considering requests to postpone and adjourn a hearing.
• Late reports. Tribunal Procedure: Failure to submit reports to the tribunal on time (17/4/15) — This letter to MHA Administrators sets out their duties in relation to an amended HQ1 form (which must be used from 5/5/15) and a related email to "stakeholders" sets out the duties of representatives. (1) The CNL1 letter will direct MHA Administrators to (a) provide contact details for all the responsible authority's witnesses, including any out-of-area social circumstances report author; (b) advise the tribunal if any details change; (c) certify that the information can be relied upon by the tribunal for service of directions and summonses. (2) When a report or statement is not received within the three-week deadline, a specific direction will be sent - generally by secure email - to the person at fault, requiring the evidence within 7 days, and warning that a referral may be made to the Upper Tribunal for consideration of a personal penalty. (3) If the required contact details have not been provided then any directions or summonses will be sent to the Chief Executive or Medical Director. (4) Representatives need only complete the patient details and listing parts of form HQ1 and, while form HQ2 is no longer required, the CNL2 letter will contain a reminder to (a) make representations if half a day is not a suitable time estimate; (b) inform the tribunal early if an interpreter is required; (c) use best endeavours to request any withdrawal at least two full working days before the hearing start time, and provide reasons for requests within that period.
• Enforcement procedure. Practice Guidance: Enforcement Procedure, Directions and Summonses (24/7/17) — This document contains the following headings: (1) The Responsible Authority’s duty to provide its written evidence within 3 weeks; (2) The Responsible Authority’s duty to cooperate with the tribunal, and provide the full identity and secure contact details of its statement and report writers; (3) The Responsible Authority’s duty to arrange for the attendance of witnesses; (4) The Legal Representative’s Duties; (5) What will the tribunal do to enforce compliance? (6) The MH5 direction to a named person to immediately provide written evidence; (7) Failure to comply with a personal MH5 Direction to give written evidence; (8) Summonses.
• Tribunal guidance for patients. HMCTS et al, 'Mental Health Tribunal: An Easy Read Guide' (22/7/20) — "This document will help explain what you can expect if you attend a face-to-face Mental Health Tribunal hearing."
• Withdrawal guidance. Tribunal Policy: Withdrawals (23/2/15) — (1) Late withdrawals (where the request is received less than 48 hours, not counting non-working days, before the hearing) and "merely tactical" withdrawals ("such as where the case is part-heard, or if there are two cases that ought to be heard together and an attempt is made to withdraw one of them, or if an application for a postponement or adjournment has been made and refused and the withdrawal appears to be an attempt to get round the refusal") will be referred either to a registrar, salaried judge, or panel. (2) For late withdrawals: (a) the tribunal must be provided with full reasons why the patient wants to withdraw the application (and thus agrees to the continuation of detention or MHA order); (b) the tribunal will bear in mind that the need for, and right to, a periodic review of a patient's detention is an important safeguard which is necessary for Article 5 ECHR purposes, and which should not be abandoned lightly, especially if the hearing may achieve some good, and if in doubt the tribunal should refuse to consent. (3) Requests received after 4.30pm on the working day before the hearing will be considered by the panel.
• Tribunal guidance on references. Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) — The DHSC has agreed to make an urgent reference on the day of a hearing when the tribunal find that the patient lacked capacity to make the application but the hearing should go ahead.
• Devon case tribunal guidance. Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21) — If tribunal proceedings began in relation to an unlawful section (based on a remote assessment) but the patient now is on a new section and wishes the hearing to go ahead, the tribunal is likely to strike out the initial application/reference but facilitate the patient in making a new application. The guidance focusses on the patient making an application, rather than seeking a reference to preserve the right to make a later application (see Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) for the ability to seek an urgent reference in another context), or the argument mentioned in this forum topic that the changed section could be treated in the same way as other changes of status.

Other guidance

• Tribunal victims policy. Practice Guidance on Procedures Concerning Handling Representations from Victims in the First-tier Tribunal (Mental Health) (1/7/11) — This guidance sets out the procedures for handling representations from victims. In force 1/7/11.
• Observation guidance. Mental Health Tribunal, 'Guidance for the observation of tribunal hearings in the First-tier Tribunal Health Education and Social Care Chamber (mental health jurisdiction)' (10/1/19) — This guidance supersedes Mental Health Tribunal, 'Guidance for the observation of tribunal hearings' (5/11/09), the main difference being that it is no longer necessary for observation requests by solicitors, barrister, nurses, doctors, social workers etc to be made in advance to the Deputy Chamber President.
• Tribunal composition. Practice Statement: Composition of Tribunals in relation to matters that fall to be decided by the Health, Education and Social Care Chamber on or after 16/12/15' (18/12/15) — This Practice Statement sets out the composition of Tribunals required for the taking of various decisions. In relation to mental health, no change has been made since the 2009 version.
• IMHAs at tribunals. Practice Note: Role of the Independent Mental Health Advocate in First-tier Tribunal (Mental Health) Hearings (May 2011) — This guidance, issued in May 2011, clarifies the role that IMHAs should play in tribunal hearings. It contains the following main headings: (1) Introduction; (2) What Problems have Arisen?; (3) What is the Role of the IMHA?; (4) Attendance at the Hearing; (5) Relationship with the Legal Representative; (6) Giving Evidence; and (7) Access to the Tribunal’s Decision. The guidance, while acknowledging that an IMHA may be a 'representative' within the Tribunal Procedure Rules, is based on an expectation that ordinarily the IMHA should play a role distinct from the role of the legal representative.
• Medical examinations. Direction applicable to all Applications and References in Mental Health Cases received by the Tribunal on or before 4 April 2014 but not finally disposed of by the Tribunal on or before date (6/4/14) — The text of this direction, dated 6/4/14, is as follows: "In accordance with Rule 5(1) and (2), and Rule 34(2)(c) I direct that: (1) In relation to all applications and references in mental health cases received by the tribunal on or before 4th April 2014 but not finally disposed of by the tribunal on or before that date, the appointed Panel Medical Member must, so far as practicable and having regard to any expressed wishes of the patient, examine the patient in advance of the hearing in order to form an opinion of the patient’s mental state; (2) In any such case, the Panel Medical Member may interview the patient in private."
• Requirements imposed on hospitals. HMCTS, 'Minimum requirements for tribunal hearings to be held in hospitals' (11/4/18) — This document states that "[a] hearing room is as essential to a psychiatric hospital as an operating theatre is to a surgical hospital" and that if hospitals do not adhere to the minimum requirements or obtain a written exemption then the tribunal "may consider holding its judicial hearings elsewhere". The main headings are (1) Minimum standards of safety and security, and (2) Minimum requirements for facilities and amenities.
• MHT guidance for young people. RCPsych and Tribunals Judiciary, 'A Guide to Mental Health Tribunals for Young People' (11/2/16) — This document contains a simplified description of the tribunal process for civil sections.

Older documents

• MHT, 'Nursing Reports - Advice to Panels from Regional Tribunal Judges' (23/2/09)
• Practice Statement: Delegation of functions to staff on or after 2 November 2010 (2/11/10)
• MHT, 'Guidance Booklet: Reports for Mental Health Tribunals' (published 7/9/10, updated 4/4/12)
• Guidance: References made under section 68(7) Mental Health Act 1983 (updated 22/9/10)
• MHT, 'Important notice: Operation of section 77(2) MHA 1983 - disregarding withdrawn applications' (8/12/08)
• Practice Statement: Delegation of Functions to Staff and to Registrars on or after 10 June 2014 (10/6/14)

Wales - MHRT for Wales

Rules and Practice Directions

• Tribunal legislation. Mental Health Review Tribunal for Wales Rules 2008 — These new rules for the Mental Health Review Tribunal for Wales came into force on 3/11/08. See MHRT for Wales and coronavirus for updates.
• Welsh tribunal report PD. Practice Direction: Statements and reports for MHRTs in Wales (October 2019) — This practice direction, which is based on and is similar to the English 2013 equivalent, sets out what is required of tribunal reports.
• Practice Direction: Use of the Welsh language in Tribunals in Wales - Tribunals website

Coronavirus

• See MHRT for Wales and coronavirus.

Appeals

• Appeals go to the Upper Tribunal.

Other links

• Consultation on Draft Welsh rules (closed) and the Draft Welsh rules

Upper Tribunal

• Tribunal legislation. Tribunal Procedure (Upper Tribunal) Rules 2008 — These are the rules for the new Upper Tribunal, which come into force on 3/11/08. The amendments made by the Tribunal Procedure (Amendment) Rules 2009, with effect from 1/4/09 are reflected in the text below; further amendments have since been made.The Upper Tribunal (Administrative Appeal Chamber) replaces judicial review in relation to Tribunal decisions.
• Upper Tribunal website - reported decisions
• Practice Direction: Transcripts of Proceedings - Tribunals website
• Guidelines for reporting - text dated December 2009, file dated 19/4/10

First-tier and Upper Tribunals

• Vulnerable witnesses. Practice Direction: Child, Vulnerable Adult and Sensitive Witnesses (30/10/08) — This practice direction defines the three relevant categories of witnesses, then gives details of the circumstances under which they may give evidence, and the manner in which evidence is given. It applies both to the First-tier and Upper Tribunals, and is dated 30/10/08.
• Practice Statement: Form of decisions and neutral citation: First-tier Tribunal and Upper Tribunal on or after 3 November 2008 - Judiciary website

Legal Action articles

Reproduced by kind permission.

• Christopher Curran, Malcolm Golightley and Phil Fennell, 'Social circumstances reports for mental health tribunals - Part 1' (Legal Action, June 2010)
• Christopher Curran, Malcolm Golightley and Phil Fennell, 'Social circumstances reports for mental health tribunals - Part 1' (Legal Action, July 2010)
• Christopher Curran, Phil Fennell and Simon Burrows, 'Responsible authority statements for mental health tribunals' (Legal Action, March 2012)

Old rules

• Until 3/11/08, the Mental Health Review Tribunal Rules 1983 apply to the MHRT in both England and Wales.

Related legislation

• See all Tribunal legislation

See also

• Mental Health Tribunal - England
• Mental Health Review Tribunal for Wales - Wales
• Tribunal forms

Other external links

• Tribunals website home page
• Upper Tribunal (Administrative Appeals Chamber) website
• Tribunal Procedure Committee
• Practice Directions made by the Senior President of Tribunals
• "The new unified Tribunals system" - Tribunal website
• "Changes to the Tribunal system from November 2008" - Tribunal website
• Judiciary website: Publications: Filtered by Jurisdiction matching "Mental Health" (Practice Directions and Statements)

INFORMATION

• Aftercare
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