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

Part 2: Consultation On Draft Regulations To Transfer The Functions And Members Of The Mhts To The Scottish Tribunals And Repeal Existing Statutory Provisions.

Background

13) Section 28(2) of the 2014 Act provides the power for the Scottish Ministers to make regulations to transfer the functions of the listed tribunals in Schedule 1 of the 2014 Act, to the First-tier Tribunal only; the Upper Tribunal only; or to the First-tier Tribunal and the Upper Tribunal.

14) Schedule 2 and section 29 of the 2014 Act provides the power for the Scottish Ministers to make regulations to transfer the members of the listed tribunals to the First-tier or Upper Tribunal.

Draft Regulations

15) The policy intent is for the MHTS to transfer into the Scottish Tribunals structure with their existing membership and functions insofar as practicable and insofar as is in line with existing legislation. Upon transfer the MHTS will be abolished and thereafter first instance decisions will be heard in the First-tier Tribunal Mental Health Chamber with appeals heard by the Upper Tribunal or the Court of Session as appropriate.

16) The draft regulations propose that the President of the MHTS transfers in as Chamber President of the First-tier Tribunal Mental Health Chamber. Medical and general members of the MHTS will transfer in as ordinary members of the First-tier Tribunal. In practice they will be allocated to the Mental Health Chamber.

17) The criteria for legal membership of the MHTS is currently set out in the Mental Health Tribunal for Scotland (Appointment of Legal Members) Regulations 2004 (the 2004 Regulations) and sets out that a legal member shall be a person–
(a) being an advocate or solicitor admitted in Scotland of at least seven years standing;
(b) having a seven year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990; or
(c) being a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least seven years standing.

18) We propose to revoke the 2004 Regulations and rely on the criteria for legal membership that is generic across the First-tier Tribunal and already set out in schedule 3 of the 2014 Act and the Scottish Tribunals (Eligibility for Appointment) Regulations 2015. Briefly, a person may only be appointed as a legal member of the Scottish Tribunals if the person is practising and has practised for a period of not less than 5 years as a solicitor or advocate in Scotland. If a person is not currently practising in Scotland, but has previously engaged in practice for not less than five years as a solicitor or advocate in Scotland, they must have subsequently engaged in exercising judicial functions in any court or tribunal, practice or employment as a lawyer of any kind or teaching or researching law at or for an educational institution. A qualification and practice in Scots law is considered an appropriate requirement when dealing with devolved case law and legislation and this change will ensure consistency across the First-tier Tribunal.

19) In order to ensure consistency across the First-tier Tribunal, we would propose to replicate the effect of the Judicial Pensions and Retirement Act 1993. Scottish Tribunals members are required to retire from the Scottish Tribunals at the age of 70, although Scottish Ministers can choose to reappoint the member for one year at a time, until they reach the age of 75, if their reappointment is in the public interest.

20) The draft regulations set out the transitional arrangements, which state that cases in progress before the MHTS on the day of transfer will be completed in the First-tier Tribunal. The First-tier Tribunal panel will be comprised of the same members as were hearing the case in the MHTS, where possible. Time limits which have started to run prior to commencement of these regulations and have not expired shall continue to apply.

21) If a party wishes to appeal a decision of the MHTS which previously would have been appealed to the Sheriff Principal, but has not exercised this right before 12 November 2018 then the appeal route will be to the Upper Tribunal as opposed to the Sheriff Principal. If a party has already exercised their right of appeal before 12 November 2018 then the appeal will not be affected by the new regulations and will be completed by the Sheriff Principal. Appeal rights to the Court of Session will remain unaffected; these appeals will not transfer to the Upper Tribunal.

22) The regulations will repeal schedule 2 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act), which set up the MHTS. Once the MHTS is transferred into the Scottish Tribunals the 2014 Act and these draft regulations will cover the operation of the Scottish Tribunals when dealing with mental health cases.

23) The draft regulations make amendments to existing legislation, replacing references to the MHTS with references to the First-tier Tribunal, and references to the Sheriff Principal with references to the Upper Tribunal.

24) The draft regulations repeal the Mental Health Tribunal for Scotland (Appointment of General Members) Regulations 2004 ^[1] , the Mental Health Tribunal for Scotland (Appointment of Medical Members) Regulations 2004 ^[2] , and the Mental Health Tribunal for Scotland (Appointment of Legal Members) Regulations 2004 ^[3] , the Mental Health Tribunal for Scotland (Disciplinary Committee) Regulations 2004 ^[4] , the Mental Health Tribunal for Scotland (Disqualification) Regulations 2004 ^[5] , as these are replaced by the eligibility criteria set out in the 2014 Act and put forward in this consultation (for ordinary members) and in the Scottish Tribunals (Eligibility for Appointment) Regulations 2015 ^[6] (for legal members).

25) The draft regulations also repeal the Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005 ^[7] , the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 ^[8] and the Mental Health Tribunal for Scotland (Delegation of the President’s Functions) Regulations 2004 ^[9] and replace those with the new Rules and Procedure for the Mental Health Chamber of the First-tier Tribunal.