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 and directions

• 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 full text is available here and was last checked for accuracy on 16/11/22.
• Automatic disclosure of medical records. Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives and to Medical Members of the Tribunal' (17/11/21) — The changes from the earlier version are: (1) this is "[t]o limit contact and reduce risk during the Covid pandemic" rather than applying "[w]here there are restrictions on the ability of legal representatives to visit patients without undue delay and risk to themselves and others in the ongoing coronavirus pandemic"; (2) There is an extra paragraph: "The RA shall send the clinical notes to the eJudiciary email address of the Medical Member of the Tribunal no later than 3 days before the Tribunal."

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

• Recording and transcripts. Practice Guidance: Recording of hearings in the HESC and transcription of recordings (Presidential guidance note no 3 of 2003, 14/12/23) — Guidance on recording hearings and transcripts.
• 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).

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. Superseded by Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23).
• 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."
• Hospital tribunal requirements. Mental Health Tribunal, 'Minimum security requirements and amenities for tribunal hearing rooms in hospitals' (29/1/24) — There are minimal changes to the 2022 version throughout the document. The main changes seem to be: (1) New paragraph 17 under the heading "Standards of safety and security": Contact details for a named responsible officer and an emergency number should always be provided to the panel on arrival in case security is required."; (2) changed email addresses; (3) further details on reporting concerns or incidents.
• Video hearing requirements. Mental Health Tribunal, 'Requirements for video hearings' (July 2022) — The standards relate to the room, internet connection, equipment, and other matters.
• 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.
• Observing Welsh tribunals. MHRT for Wales, 'Guidance for the observation of tribunal hearings' (Carolyn Kirby, 27/1/15) — This guidance is the same as English 2009 guidance except for some minor amendments. It is still in force (confirmed during May 2022) and does not include the changes made in the English 2019 guidance (the main changes there related to the need for observation requests).
• 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
• Restricted case guidance. HMCTS and MOJ, 'Guidance for the conduct of cases before the restricted patient panel' (29/3/16) — This document sets out the responsibilities of the MoJ and MHT in the Tribunal procedure. For instance, the protocol provides that no MoJ comments are required in the following circumstances: (1) for initial reports, the MoJ have had the reports for 21 days; (2) for subsequent reports, including addendum and independent reports, the MoJ have received the reports at all.

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)

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• Changes made by MHA 2007
  • 16- or 17-year-old with capacity cannot be detained on basis of parental consent
  • Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
  • Additional safeguards for ECT introduced in new s58A
  • Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
  • Approved Mental Health Professional replaces Approved Social Worker
  • Automatic reference scheme under s68 changed
  • Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
  • Civil partners are treated as if married when determining nearest relative
  • Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
  • Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
  • Fundamental principles set out in Act and included in Code of Practice
  • Higher penalties for offences under Act
  • Hospital direction patients can no longer apply to Tribunal during first six months
  • Hospital directions under s45A apply to any mental disorder
  • Legal status of Code of Practice set out in Act
  • Limitation to the exceptions to the duty to instruct IMCA
  • Mental disorder no longer split into separate classifications
  • Minor drafting error in MCA 2005 corrected
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  • New Independent Mental Health Advocate scheme
  • New procedure for renewal of detention
  • New regulations on conflicts of interest
  • New requirements for age-appropriate accommodation for children
  • NHS Foundation Trusts discharge power problem remedied
  • Organisation of Mental Health Review Tribunal changed
  • Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
  • Patients can be transferred between places of safety under s135 and s136
  • Procedure for making of instruments by Welsh Ministers set out
  • Reference to Local Health Boards inserted into Act
  • Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
  • Restriction orders can no longer be time-limited
  • SOAD certificate becomes invalid when patient loses or gains capacity
  • Some exclusions to definition of mental disorder have been removed
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What links here:

• Mental Health Review Tribunal Rules 1983
• Practice Guidance on Procedures Concerning Handling Representations from Victims in the First-tier Tribunal (Mental Health) (1/7/11)
• Tribunals, Courts and Enforcement Act 2007
• Mental Health Review Tribunal for Wales Rules 2008
• Tribunal Procedure (Upper Tribunal) Rules 2008
• Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008
• MHT, 'Important notice: Operation of section 77(2) MHA 1983 - disregarding withdrawn applications' (8/12/08)
• MHT, 'Nursing Reports - Advice to Panels from Regional Tribunal Judges' (23/2/09)
• Tribunal Procedure (Amendment) Rules 2009
• Practice Direction: Child, Vulnerable Adult and Sensitive Witnesses (30/10/08)
• Mental Health Tribunal, 'Guidance for the observation of tribunal hearings' (5/11/09)
• Guidance: References made under section 68(7) Mental Health Act 1983 (updated 22/9/10)
• MHT, 'Guidance Booklet: Reports for Mental Health Tribunals' (published 7/9/10, updated 4/4/12)
• Practice Statement: Delegation of functions to staff on or after 2 November 2010 (2/11/10)
• Practice Note: Role of the Independent Mental Health Advocate in First-tier Tribunal (Mental Health) Hearings (May 2011)
• Practice Direction: First-tier Tribunal Health Education and Social Care Chamber: Statements and Reports in Mental Health Cases (28/10/13)
• Practice Direction and Guidance: Medical Examinations (11/3/14)
• Practice Statement: Delegation of Functions to Staff and to Registrars on or after 10 June 2014 (10/6/14)
• 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)
• Practice Guidance: Mental Health jurisdiction: Postponements and adjournments following recent changes in listing practice (published 18/7/14)
• Tribunal Policy: Withdrawals (23/2/15)
• Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 (27/4/15)
• Tribunal Procedure: Failure to submit reports to the tribunal on time (17/4/15)
• Practice Guidance: Enforcement Procedure, Directions and Summonses (24/7/17)
• 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)
• Practice Statement: Delegation of Functions to Registrars, Tribunal Case Workers and Authorised Tribunal Staff on or after 8 July 2016 (7/7/16)
• Uncategorised pages
• Tribunal Procedure (Coronavirus) (Amendment) Rules 2020
• RCPsych and Tribunals Judiciary, 'A Guide to Mental Health Tribunals for Young People' (11/2/16)
• HMCTS et al, 'Mental Health Tribunal: An Easy Read Guide' (22/7/20)
• Practice Direction: Statements and reports for MHRTs in Wales (October 2019)
• 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)
• Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21)
• Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21)
• MHRT for Wales, 'Guidance for the observation of tribunal hearings' (Carolyn Kirby, 27/1/15)
• Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives and to Medical Members of the Tribunal' (17/11/21)
• Mental Health Tribunal, 'Requirements for video hearings' (July 2022)
• Mental Health Tribunal, 'Minimum security requirements and amenities for tribunal hearing rooms in hospitals' (June 2022)
• HMCTS and MOJ, 'Guidance for the conduct of cases before the restricted patient panel' (29/3/16)
• Courts and Tribunals Judiciary, 'Practice Guidance: Procedure for handling representations from victims in the Mental Health jurisdiction (HESC)' (23/8/23)
• Practice Guidance: Recording of hearings in the HESC and transcription of recordings (Presidential guidance note no 3 of 2003, 14/12/23)
• Mental Health Tribunal, 'Minimum security requirements and amenities for tribunal hearing rooms in hospitals' (29/1/24)