Draft regulations transferring the Mental Health Tribunal for Scotland to the Scottish Tribunals: consultation

Part 1: Background

1) The Tribunals (Scotland) Act 2014 (the 2014 Act) creates a new, simplified statutory framework for tribunals in Scotland, bringing existing tribunal jurisdictions together and providing a structure for new jurisdictions. The 2014 Act creates two new tribunals, the First-tier Tribunal for Scotland (First-tier Tribunal) and the Upper Tribunal for Scotland (Upper Tribunal), known collectively as the Scottish Tribunals.

2) The 2014 Act provides a mechanism for regulations to transfer the functions of existing tribunals and their membership to the First-tier Tribunal and/or the Upper Tribunal. Alternatively, functions may be directly conferred on the First-tier Tribunal and/or the Upper Tribunal for newly created jurisdictions or extensions of jurisdiction. The 2014 Act also provides for the First-tier Tribunal to be organised into a number of subject-specific Chambers.

3) The Mental Health Tribunal for Scotland ( MHTS) was established by the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act). The primary role of the Tribunal is to consider and determine applications for compulsory treatment orders ( CTOs) under the 2003 Act, and to consider appeals against compulsory measures made under the 2003 Act. The Tribunal also plays a monitoring role, periodically reviewing the compulsory measures in place for an individual.

4) It is proposed that the functions and members of the MHTS will transfer into the Scottish Tribunals on 12 ^th November 2018. The First-tier Tribunal will have a Mental Health Chamber for hearing these cases. The MHTS as it presently stands will then be abolished.

5) Legal aid will continue to be available in the First-tier Tribunal Mental Health Chamber and the Upper Tribunal.

6) The draft regulations are attached at Annexes A, B, C, D, E and F. To note, the foot notes for the draft regulations will be completed after the consultation.

7) The draft regulations in Annex A provide for:

• The transfer of functions of the MHTS to the Scottish Tribunals;
• Transitional arrangements to regulate how cases in progress before the MHTS on 12 ^th November will be dealt with;
• Consequential amendments and repeals required in light of the transfer of functions;
• The transfer of members of the MHTS to the Scottish Tribunals.

8) The draft regulations in Annex B set out the Rules of Procedure for the First-tier Tribunal Mental Health Chamber.

9) The draft regulations in Annex C set out the Rules of Procedure for the Upper Tribunal when hearing cases from the First-tier Tribunal Mental Health Chamber.

10) The draft regulations in Annex D set out the composition, by type and number of members, of the First-tier Tribunal Mental Health Chamber, and the Upper Tribunal when hearing appeals from the First-tier Tribunal Mental Health Chamber.

11) The draft regulations in Annex E set out the eligibility criteria for membership of the First-tier Tribunal Mental Health Chamber and the Upper Tribunal when hearing cases from the First-tier Tribunal Mental Health Chamber.

12) The draft regulations in Annex F set out the time limits for seeking permission to appeal a decision of the First-tier Tribunal Mental Health Chamber.