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

Annex B

Scottish Statutory Instruments
2018 No.
TRIBUNALS AND INQUIRIES

The First-tier Tribunal for Scotland Mental Health Chamber (Procedure) Regulations 2018

Made - - - - 2018
Laid before the Scottish Parliament 2018
Coming into force - - 12th November 2018

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 55(1), 61(2) and 80(1) and paragraph 4(2) of schedule 9 of the Tribunals (Scotland) Act 2014( a) and all other powers enabling them to do so.

In accordance with paragraph 4(3) of schedule 9 of that Act, they have consulted the President of Tribunals and such other persons as they have considered appropriate.

Citation and commencement

1. —(1) These Regulations may be cited as the First-tier Tribunal for Scotland Mental Health Chamber (Procedure) Regulations 2018 and the Rules set out in the schedule may be cited as the First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018.
(2) These Regulations come into force on 12th November 2018.

Application of the First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018

2. The First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018 set out in the schedule apply to proceedings before the First-tier Tribunal for Scotland Mental Health Chamber when exercising the functions transferred or allocated to it by —
(a) the First-tier Tribunal (Transfer of Functions and Members of the Mental Health Tribunal for Scotland) Regulations 2018( b); and
(b) the Mental Health (Care and Treatment) (Scotland) Act 2003( c).

Transitional provisions

3. Any application, review, appeal or reference to the First-tier Tribunal for Scotland Mental Health Chamber received prior to 12th November 2018 is to be treated as if it were received on or after that day.
4. A reference in the First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018 to a curator ad litem appointed by the First-tier Tribunal includes a curator ad litem appointed by the Mental Health Tribunal for Scotland in respect of the same proceedings.

A member of the Scottish Government
St Andrew’s House,
Edinburgh
2018

Schedule

The First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018

Contents

Part 1
Introduction

1. Interpretation

Part 2
Applications to the First-Tier Tribunal

2. Scope of this Part
3. Withdrawal of application
4. Amendment of application
Short-term detention
5. Application under section 50 (revocation of short term detention certificate or extension certificate)
6. Application for compulsory treatment order under section 63
7. Application for interim compulsory treatment order under section 65
8. Determination of application for compulsory treatment order where section 68 applies: special case
9. Application for extension and variation of compulsory treatment order under section 92 and variation of compulsory treatment order under section 95
10. Application by patient etc. under section 99 for revocation of determination extending compulsory treatment order and for revocation or variation of a compulsory treatment order under section 100
11. Application by patient etc. under section 120 for revocation of certificates under sections 114(2) and 115(2)
Compulsion orders
12. Application by responsible medical officer under sections 149, 158 and 161
13. Application by patient etc. for revocation of determination extending compulsion order under section 163, for revocation or variation of a compulsion order under section 164 or under section 120 for revocation of a certificate under section 114(2) as applied with modifications by section 177
Compulsion orders and restriction orders
14. Application under section 191 by the Scottish Ministers for an order under section 193
15. Application by patient etc. under section 192 for order under section 193
Hospital directions and transfer for treatment directions
16. Application by patient and named person for revocation of hospital direction or transfer for treatment direction under section 214(2)
Named person
17. Application by mental health officer under section 255, and patient etc. under section 256, for appointment of named person
Detention in conditions of excessive security
18. Application that detention in hospital is in conditions of excessive security
19. Application that detention in hospital is in conditions of excessive security: medical report
20. Hearings under section 265(2) or 269(2)
21. Application under section 267 or 271 for recall of an order
Informal patients
22. Application to First-tier Tribunal under section 291 in relation to unlawful detention

Part 3
Appeals to the First-Tier Tribunal

23. Scope of this Part
24. Initiating appeals to the First-tier Tribunal
25. Notice of the appeal
26. Withdrawal of appeal
27. Amendment of appeal

PART 4
References to the First-Tier Tribunal

28. Scope of this Part
29. Notice of the reference
30. Amendment of reference

PART 5
REVIEWS

31. Scope of this Part
32. Notice of review

PART 6
GENERAL RULES

33. Scope of this Part
34. Disqualification
35. Preliminary or procedural matters
36. Transfer to the Upper Tribunal
37. Incompetent case
38. Lodging of documents etc.
39. Distribution of documents
40. Requests to the First-tier Tribunal for non-disclosure of documents
41. Submissions and evidence from persons who are not a party to proceedings
42. Directions
43. Directions on fixing another hearing
44. Varying or setting aside of directions
45. Power on failure to comply with directions
46. Other case management powers
47. Assistance to persons with communication difficulties
48. Representation
49. Curator ad litem
50. Notices
51. Alteration of hearing
52. Power to decide a case without oral representations and oral evidence
Evidence
53. Production of documents etc.
54. Evidence of witnesses
55. Attendance of witnesses
56. Expert reports
The Hearing
57. Accommodation
58. Procedure
59. Absence of a member of the First-tier Tribunal
60. Adjournment of the hearing
61. Hearings in public or private
62. Publicity
63. Exclusion of persons from hearings in exceptional circumstances
64. Exclusion of persons disrupting hearing
65. Failure of a party to attend
66. Inability to attend
67. Decisions of the First-tier Tribunal
68. Intimation of decisions of the First-tier Tribunal
69. Publication
70. Application for permission to appeal a decision of the First-tier Tribunal
71. First-tier Tribunal’s consideration of application for permission to appeal
72. Review of a decision
Miscellaneous
73. Performance of the First-tier Tribunal’s functions
74. Relief from failure to comply with the Rules
75. Signature of documents
76. Proof of documents
77. Method of delivering and receipt of notices and documents
78. Transfer of case

Part 1
Introduction

Interpretation

1. —(1) In these Rules—

"the 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003;
"the 2014 Act" means the Tribunals (Scotland) Act 2014;
"appellant" means a person who appeals to the First-tier Tribunal under or by virtue of any of the sections specified in Part III of these Rules;
"applicant" means a person who makes an application to the First-tier Tribunal under the 2003 Act;
"Chamber President" means the Chamber President of the First-tier Tribunal;
"Clerk" means a member of staff of the Scottish Courts and Tribunals Service employed to carry out the administration of the First-tier Tribunal or to act as Clerk at a hearing of the First-tier Tribunal;
"Commission" means the Mental Welfare Commission for Scotland;
"convener" means the Chamber President, a legal member selected by the Chamber President or a judicial member selected by the Chamber President;
"electronic communication" has the meaning given to it by section 15(1) of the Electronic Communications Act 2000( a); and
"electronic signature" has the meaning given to it by section 7 of the Electronic
Communications Act 2000( b);
"First-tier Tribunal" means the First-tier Tribunal for Scotland Mental Health Chamber;
"hearing" means a sitting of the First-tier Tribunal for the purpose of enabling the First-tier Tribunal to take a decision on any matter relating to the case before it;
"judicial member" means a sheriff who is authorised by the President of Tribunals for the purpose of section 17(3)(a) of the 2014 Act;
"legal member" means an individual holding membership of the First-tier Tribunal in accordance with section 15(2) of the 2014 Act.
"notice" means notice in writing;
"party" means—
(a) the person who initiated the proceedings before the First-tier Tribunal except a person who initiated them by virtue of a provision giving a listed initiator authority to act;
(b) the patient to whom the proceedings relate;
(c) the named person of the patient to whom the proceedings relate;
(d) any person whose decision (which must include any direction or order, determination or grant of a certificate, but does not include a decision by a court) is the subject of the proceedings before the First-tier Tribunal;
(e) only in respect of proceedings relating to a relevant patient, the Scottish Ministers; and
(f) only in respect of proceedings under sections 264 to 271, the relevant Health Board;
"patient" means the patient to whom the proceedings relate;
"principles in the 2003 Act" means the principles for discharging certain functions set out in section 1;
"referee" means a person who makes a reference to the First-tier Tribunal under, or by virtue of, the 2003 Act;
"relevant Health Board" and "relevant patient" are to be interpreted in accordance with section 273;
"representative" means, unless otherwise indicated, a legal representative or lay representative;
"respondent" means the person who made the decision which is the subject of appeal under or by virtue of Part 3 of these Rules; and
"working day" means a day which is not a Saturday, a Sunday or a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971( c).
(2) The "listed initiator requirement" means that the application or appeal must be accompanied by—
(a) a written statement by an approved medical practitioner confirming that in the opinion of that practitioner the patient is incapable in relation to a decision as to whether to initiate an application or appeal; and
(b) a written statement from the person making the application or appeal stating—
(i) that the patient has attained the age of 16 years and has no named person;
(ii) which of the categories of person who may initiate the appeal or application by virtue of the provision giving a listed initiator authority to act the person falls within; and
(iii) that the patient has not made a written declaration which precludes the person from initiating the appeal or application by virtue of that provision.
(3) A reference in these Rules to a provision giving a listed initiator authority to act is a reference to—
(a) section 257A;
(b) regulation 8A of the Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008; and
(c) regulation 13A of the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005.
(4) References in these Rules to sections or subsections are to sections and subsections of the 2003 Act unless otherwise specified.
(5) Where the time specified by these Rules for doing any act ends on a Saturday, Sunday or a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971 that act is done in time if it is done on the next day which is not a Saturday, Sunday or bank holiday.

Part 2
Applications to the First-Tier Tribunal

Scope of this Part

2. This Part applies to applications to the First-tier Tribunal under, or by virtue of, the following provisions:—
(a) section 50 (application for revocation of short term detention certificate or extension certificate);
(b) section 63 (application for compulsory treatment order);
(c) section 65 (application for interim compulsory treatment order);
(d) section 92 (application for extension and variation of compulsory treatment order);
(e) section 95 (application for variation of compulsory treatment order);
(f) section 99 (application by patient etc. for revocation of determination extending compulsory treatment order);
(g) section 100 (application by patient etc. for revocation or variation of a compulsory treatment order);
(h) section 120 (Application by patient etc. for revocation of certificates under section 114(2) or 115(2));
(i) section 149, 158 or 161 (applications by responsible medical officer);
(j) section 163 (application by patient etc. for revocation of determination extending compulsion order);
(k) section 164 (application by patient etc. for revocation or variation of a compulsion order); (l) section 120 (application by patient etc. for revocation of a certificate under section 114(2) as applied with modifications by section 177);
(m) section 191 (application by the Scottish Ministers for an order under section 193);
(n) section 192 (application by patient etc. for an order under section 193);
(o) section 214(2) (application by patient and named person for revocation of hospital direction or transfer for treatment direction);
(p) section 264 or 268 (application that detention in hospital is in conditions of excessive security);
(q) section 267 or 271 (application for recall of an order); and
(r) section 291 (application in relation to unlawful detention).

Withdrawal of application

3. —(1) This rule applies to all applications made under this Part.
(2) Where an application is made to the First-tier Tribunal, an applicant may make a motion to withdraw that application—
(a) at any time before the hearing of the application, by sending to the Clerk a notice signed by the applicant; or
(b) at the hearing on the application.
(3) On receipt of any such notice, the Clerk must send a copy to the parties and to the persons listed in the rule to which the application relates.
(4) Where an applicant makes such a motion under paragraph (2), the First-tier Tribunal may:
(a) terminate the proceedings without making any order; or
(b) refuse the motion and proceed to make a decision on the application.

Amendment of application

4. —(1) This rule applies to all applications made under this Part.
(2) A party may, at any time before notification of the date of the hearing of the application, amend the application by sending notice of any amendment to the Clerk.
(3) Any amendment under paragraph (2) must be signed by the party.
(4) A party may amend the application with the permission of the First-tier Tribunal at any time after receiving notification of the date of the hearing or, with the permission of the Convener, at the hearing itself.
(5) On receipt of any amendment, the Clerk must send a copy to the parties.

Short-term detention

Application under section 50 (revocation of short term detention certificate or extension certificate)

5. —(1) An application to the First-tier Tribunal for revocation of a short term detention certificate under section 50 must be made in writing.
(2) An application must state-
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital, if any, where the patient is detained or apparently detained;
(e) where the patient is required to reside at a specified place, the address of that specified place; and
(f) a brief statement of the reasons for the application.
(3) The applicant must sign the application.
(4) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.
(5) The Clerk must send a copy of the application to the parties.
(6) Upon receipt of the application the Clerk must fix a hearing as soon as possible.
(7) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) any approved medical practitioner who granted the short term certificate;
(f) the mental health officer who was consulted under section 44(3)(c);
(g) if the patient has a responsible medical officer, the responsible medical officer;
(h) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(i) any other person appearing to the First-tier Tribunal to have an interest in the application.
(8) The notice under paragraph (7) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence;
(c) of the date, time and place of the hearing; and
(d) that if they wish to make representations or lead or produce evidence, they must respond to the notice within the period specified in the notice.
(9) If a person mentioned in paragraph (7) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within the period specified in the notice send to the First-tier Tribunal—
(a) a notice of response; and
(b) a copy of any documents the person intends to rely upon at the hearing.
(10) The Clerk must send to each party a copy of each notice of response and copies of any documents received under paragraph (8) except where the person sending the documents under paragraph (8) has made a request for non-disclosure of the documents in accordance with rule 40.

Application for compulsory treatment order under section 63

6. —(1) An application for a compulsory treatment order under section 63 must state the matters specified in section 63(2).
(2) The Clerk must send a copy of any accompanying documents mentioned in section 63(3) to the patient and the patient’s named person.
(3) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) the medical practitioners who submitted the mental health reports which accompany the application;
(g) if the patient has a responsible medical officer, the responsible medical officer;
(h) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(i) any other person appearing to the First-tier Tribunal to have an interest in the application.
(4) The notice under paragraph (3) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that an application has been made by the mental health officer;
(c) of the measures that are sought in relation to the patient in respect of whom the application is made;
(d) of the date, time and place of the hearing;
(e) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(6) The Clerk must send to each party a copy of each notice of response.

Application for interim compulsory treatment order under section 65

7. An application under section 65 for an interim compulsory treatment order may be made orally at a hearing of the First-tier Tribunal or in writing sent to the First-tier Tribunal.

Determination of application for compulsory treatment order where section 68 applies: special case

8. —(1) This rule applies where an application is made under section 63 and section 68 applies.
(2) Before the expiry of the period of 5 days referred to in section 68(2)(a), the First-tier Tribunal must hold a hearing in order to determine whether an interim compulsory order should be made and, if it determines it should not be made, to determine the application.
(3) Where the First-tier Tribunal—
(a) makes an interim compulsory treatment order that authorises the detention of the patient in hospital; and
(b) does not determine that a compulsory treatment order should not be made,

it must fix a further hearing.
Application for extension and variation of compulsory treatment order under section 92 and variation of compulsory treatment order under section 95

9. —(1) An application for extension and variation of a compulsory treatment order under section 92, and an application for variation of a compulsory treatment order under section 95, must state the matters mentioned in section 92(a) or, as the case may be, section 95(a).
(2) The Clerk must send a copy of the application and any accompanying documents prescribed by virtue of section 92(b) or, as the case may be, section 95(b) to the patient and the patient’s named person.
(3) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) the patient’s responsible medical officer;
(g) the patient’s primary carer;
(h) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(i) any other person appearing to the First-tier Tribunal to have an interest in the application.
(4) The notice under paragraph (3) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that the application has been made and the orders sought in the application;
(c) of the terms of the existing compulsory treatment order;
(d) of the date, time and place of the hearing; and
(e) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(6) The Clerk must send to each party a copy of each notice of response.

Application by patient etc. under section 99 for revocation of determination extending compulsory treatment order and for revocation or variation of a compulsory treatment order under section 100

10. —(1) An application under section 99 or 100 must state—
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital, if any, where the patient is detained or is apparently detained;
(e) where the patient is required to reside at a specified place, the address of that specified place; and
(f) a brief statement of the reasons for the application.
(2) The applicant must sign the application.
(3) The Clerk must send a copy of the application to the patient’s responsible medical officer.
(4) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.
(5) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) the patient’s responsible medical officer;
(g) the patient’s primary carer;
(h) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(i) any other person appearing to the First-tier Tribunal to have an interest in the application.
(6) The notice under paragraph (5) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that the application has been made;
(c) of the orders sought in the application;
(d) of the terms of the existing compulsory treatment order;
(e) of the date, time and place of the hearing; and
(f) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(7) If a person mentioned in paragraph (5) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(8) The Clerk must send to each party a copy of each notice of response.

Application by patient etc. under section 120 for revocation of certificates under sections 114(2) and 115(2)

11. —(1) An application under section 120 to the First-tier Tribunal for revocation of a certificate under section 114(2) or 115(2) must be in writing.
(2) The application must state—
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital, if any, where the patient is detained or is apparently detained;
(e) where the patient is required to reside at a specified place, the address of that specified place; and
(f) a brief statement of the reasons for the application.
(3) The applicant must sign the application.
(4) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.
(5) The Clerk must send a copy of the application and notice of the application to the parties.
(6) The notice under paragraph (5) must inform the parties—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence;
(c) of the date, time and place of the hearing.
(7) If a party wishes to make representations (whether orally or in writing) or to lead or produce evidence, that party must within the period specified in the notice send to the First-tier Tribunal-
(a) a notice of response; and
(b) a copy of any documents the party intends to rely upon at the hearing.
(8) The Clerk must send to each party a copy of each notice of response and copies of any documents received under paragraph (7) except where the party sending the documents under paragraph (7) has made a request for non-disclosure of the documents in accordance with rule 40.

Compulsion orders

Application by responsible medical officer under sections 149, 158 and 161

12. —(1) An application by a patient’s responsible medical officer to the First-tier Tribunal—
(a) for an extension of a compulsion order following first review under section 149 must state the matters mentioned in section 149(a);
(b) for extension and variation of a compulsion order under section 158 must state the matters mentioned in section 158(a); and
(c) for an order varying a compulsion order under section 161 must state the matters mentioned in section 158(a) of that Act.
(2) The Clerk must send a copy of the application and any accompanying documents prescribed in respect of each application by regulations under section 149(b), 158(b) or 161(b), as the case may be, to the patient and the patient’s named person.
(3) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) the patient’s responsible medical officer;
(g) the patient’s primary carer;
(h) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(i) any other person appearing to the First-tier Tribunal to have an interest in the application.
(4) The notice under paragraph (3) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that the application has been made and the orders sought in the application;
(c) of the terms of the existing order;
(d) of the date, time and place of the hearing, if known;
(e) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(6) The Clerk must send to each party a copy of each notice of response.

Application by patient etc. for revocation of determination extending compulsion order under section 163, for revocation or variation of a compulsion order under section 164 or under section 120 for revocation of a certificate under section 114(2) as applied with modifications by section 177

13. —(1) An application must be in writing—
(a) for revocation of a determination extending a compulsion order under section 163 or for revocation and variation of a compulsion order under section 164; or
(b) under section 120 as applied with modifications by section 177 to the First-tier Tribunal for revocation of a certificate under section 114(2).
(2) The applicant must sign the application.
(3) The application must state—
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital, if any, where the patient is detained or is apparently detained;
(e) where the patient is required to reside at a specified place, the address of that specified place; and
(f) a brief statement of the reasons for the application.
(4) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.
(5) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) the patient’s responsible medical officer;
(g) the patient’s primary carer;
(h) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(i) any other person appearing to the First-tier Tribunal to have an interest in the application.
(6) The notice under paragraph (5) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that the application has been made and the orders sought in the application;
(c) of the terms of the existing order;
(d) of the date, time and place of the hearing;
(e) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(7) Where paragraph (1)(a) applies to the application, if a person mentioned in paragraph (5) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(8) Where paragraph (1)(b) applies to the application, if a person mentioned in paragraph (5) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response and a copy of any documents the person intends to rely upon at the hearing.
(9) The Clerk must send to each party a copy of each notice of response and copies of any documents received under paragraph (7) or (8), as the case may be, except where the person sending the documents under paragraph (8) has made a request for non-disclosure of the documents in accordance with rule 40.

Compulsion orders and restriction orders

Application under section 191 by the Scottish Ministers for an order under section 193

14. —(1) An application under section 191 by the Scottish Ministers for an order under section 193 must state the matters mentioned in section 191(a).
(2) The Clerk must send a copy of the application and any accompanying documents prescribed by virtue of section 191(b) to the patient and the patient’s named person.
(3) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the patient’s primary carer;
(f) the mental health officer;
(g) the patient’s responsible medical officer;
(h) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(i) any other person appearing to the First-tier Tribunal to have an interest in the application.
(4) The notice under paragraph (3) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that the application has been made and the order, or orders, sought in the application;
(c) of the terms of the existing order;
(d) of the date, time and place of the hearing, if known;
(e) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(6) The Clerk must send to each party a copy of each notice of response.

Application by patient etc. under section 192 for order under section 193

15. —(1) An application under section 192 for an order under section 193 must be in writing.
(2) The application must state—
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital, if any, where the patient is detained or is apparently detained;
(e) where the patient is required to reside at a specified place, the address of that specified place;
(f) the name of the patient’s responsible medical officer;
(g) the order sought; and
(h) a brief statement of the reasons for the application.
(3) The applicant must sign the application.
(4) The Clerk must send a copy of the application to the patient’s responsible medical officer and the Scottish Ministers.
(5) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.
(6) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) the patient’s primary carer;
(d) any guardian of the patient;
(e) any welfare attorney of the patient;
(f) the Scottish Ministers;
(g) the patient’s responsible medical officer;
(h) the mental health officer;
(i) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(j) any other person appearing to the First-tier Tribunal to have an interest in the application.
(7) The notice under paragraph (6) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that the application has been made and the order sought in the application;
(c) of the terms of the existing order;
(d) of the date, time and place of the hearing;
(e) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(8) If a person mentioned in paragraph (6) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(9) The Clerk must send to each party a copy of each notice of response.

Hospital directions and transfer for treatment directions
Application by patient and named person for revocation of hospital direction or transfer for treatment direction under section 214(2)

16. —(1) An application under section 214(2) must be in writing.
(2) The application must state—
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital where the patient is detained;
(e) the direction which the applicant seeks to revoke; and
(f) a brief statement of the reasons for the application.
(3) The applicant must sign the application.
(4) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.
(5) The Clerk must send a copy of the application to the patient’s responsible medical practitioner and the Scottish Ministers.
(6) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) the patient’s primary carer;
(d) any guardian of the patient;
(e) any welfare attorney of the patient;
(f) the Scottish Ministers;
(g) the mental health officer;
(h) the patient’s responsible medical officer;
(i) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(j) any other person appearing to the First-tier Tribunal to have an interest in the application.
(7) The notice under paragraph (6) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that the application has been made and the direction which it seeks to revoke;
(c) of the terms of the existing direction;
(d) of the date, time and place of the hearing;
(e) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(8) If a person mentioned in paragraph (6) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(9) The Clerk must send to each party a copy of each notice of response.

Named person

Application by mental health officer under section 255, and patient etc. under section 256, for appointment of named person

17. —(1) Subject to paragraph (5), an application under section 255 or section 256 for appointment of a named person must be made in writing.
(2) The Clerk must send a copy of the application—
(a) if the application is made under section 255, to the patient, the patient’s apparent named person, if applicable, and any person whom it is proposed in the application should be the patient’s named person; or
(b) if the application is made under section 256, to the mental health officer, the patient, the patient’s named person, if applicable, and any person whom it is proposed in the application should be the patient’s named person,
together with notice of the case number of the application (which must from then on be referred to in all correspondence relating to the application).
(3) If a person mentioned in paragraph (2) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 14 days of receipt of copy application, or within such other period specified in a notice sent with the copy application, send to the First-tier Tribunal a notice of response.
(4) The Clerk must send to each party and any person whom it is proposed in the application should be the patient’s named person a copy of each notice of response.
(5) Where it considers it expedient to do so, the First-tier Tribunal may permit an application to which this rule applies to be made by oral request and, in that event, the First-tier Tribunal must take such steps as are reasonably practical to inform the persons mentioned in paragraph (2) of the application and to allow them to be heard on the application.

Detention in conditions of excessive security

Application that detention in hospital is in conditions of excessive security

18. —(1) An application to the First-tier Tribunal for an order under section 264(2) (detention in conditions of excessive security: state hospitals); or section 268(2) (detention in conditions of excessive security: hospitals other than state hospitals) must be in writing.
(2) The application must state—
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital where the patient is detained;
(e) the address where the patient resided ordinarily immediately before the making of the order or direction by which their detention in hospital is authorised;
(f) the order or direction under the authority of which the patient is detained in hospital, including, where the order is a compulsion order, whether or not the patient is subject to a restriction order; and
(g) a brief statement of the reasons for the application.
(3) The applicant must sign the application.
(4) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.
(5) The Clerk must send a notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) the patient’s responsible medical officer;
(g) any curator ad litem appointed in respect of the patient by the First-tier Tribunal;
(h) the relevant Health Board
(i) the managers of the hospital in which the patient is detained
(j) the Commission;
(k) in the case of a relevant patient, the Scottish Ministers; and
(l) any other person appearing to the First-tier Tribunal to have an interest in the application.
(6) The notice under paragraph (5) must inform the persons—
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) of the date, time and place of the hearing; and
(c) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(7) If a person mentioned in paragraph (5) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 21 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(8) The Clerk must send to each party a copy of each notice of response.

Application that detention in hospital is in conditions of excessive security: medical report

19. —(1) The report accompanying an application for an order under section 264(2) or 268(2) must state—
(a) the name of the approved medical practitioner who prepared it; and
(b) in which list compiled and maintained under section 22(1) the practitioner is included.
(2) In paragraph (1) "report" means the report required by section 264(7A) or 268(7A), as the case may be.

Hearings under section 265(2) or 269(2)

20. —(1) This rule applies where a hearing is to be held in accordance with section 265(2) or 269(2).
(2) The Clerk must send notice of the hearing in to the persons mentioned in paragraph (4) within 7 days of the end of the period specified in the order made under section 264(2) or 268(2).
(3) The date fixed for the hearing must, where practicable, be not more than 21 days after the end of the period specified in the order made under section 264(2) or, as the case may be, 268(2).
(4) The Clerk must send notice of the hearing to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) if the patient has a responsible medical officer, the responsible medical officer;
(g) any curator ad litem appointed in respect of the patient by the First-tier Tribunal;
(h) the relevant Health Board
(i) the managers of the hospital in which the patient is detained
(j) the Commission;
(k) in the case of a relevant patient, the Scottish Ministers; and
(l) any other person appearing to the First-tier Tribunal to have an interest in the application.
(5) The notice under paragraph (4) must inform the persons—
(a) of the name of the person concerned;
(b) of the date, time and place of the hearing;
(c) of the section in accordance with which the hearings is to be held;
(d) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(6) If a person mentioned in paragraph (4) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 7 days of receipt of the notice, or within such other period as may be specified in the notice, send to the First-tier Tribunal a notice of response.
(7) The Clerk must send to each party a copy of each notice of response.

Application under section 267 or 271 for recall of an order

21. —(1) An application to the First-tier Tribunal under section 267(2) for recall of an order made under section 264(2) or 265(3), or section 271(2) for recall of an order made under section 268(2) or 269(3) must be made in writing.
(2) The application must state—
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the order to which the application relates; and
(d) a brief statement of the reasons for the application.
(3) The applicant must sign the application.
(4) The Clerk must send notice of the application to:
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) if the patient has a responsible medical officer, the responsible medical officer;
(g) any curator ad litem appointed in respect of the patient by the First-tier Tribunal;
(h) the relevant Health Board
(i) the managers of the hospital in which the patient is detained
(j) the Commission;
(k) in the case of a relevant patient, the Scottish Ministers; and
(l) any other person appearing to the First-tier Tribunal to have an interest in the application.
(5) The notice under paragraph (4) must inform the persons—
(a) of the date, time and place of the hearing; and
(b) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.

If a person mentioned in paragraph (4) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person must within 21 days of receipt of the notice, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.

Informal patients

Application to First-tier Tribunal under section 291 in relation to unlawful detention

22. —(1) An application to the First-tier Tribunal under section 291 for an order requiring the managers of the hospital to cease to detain the patient must in writing.
(2) The application must state—
(a) the name and address of the applicant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital where the patient is apparently detained; and
(e) a brief statement of the reasons for the application.
(3) The applicant must sign the application.
(4) The Clerk must send a copy of the application to the hospital managers and the patient.
(5) The Clerk must notify the hospital managers
(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);
(b) that an application has been made;
(c) of the date, time and place of the hearing;
(d) that they are being afforded the opportunity-
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence.
(6) If the hospital managers wish to make representations (whether orally or in writing) or to lead or produce evidence, they must as soon as reasonably practicable, or within such other period specified in that notice, send to the First-tier Tribunal a notice of response.
(7) The Clerk must send a copy of the notice of response to each party.

Part 3

Appeals to the First-Tier Tribunal

Scope of this Part

23. This Part applies to appeals to the First-tier Tribunal under, or by virtue of, the following sections of the 2003 Act—
(a) section 125(2) (appeal where patient subject to compulsory treatment order against transfer to hospital other than state hospital);
(b) section 126(2) (appeal where patient subject to compulsory treatment order against transfer to state hospital);
(c) section 178 (appeal where patient subject to compulsion order against transfers to state hospital or hospital other than state hospital);
(d) section 201(1) (appeal against variations of conditions imposed on conditional discharge);
(e) section 204(1) (appeal against recall from conditional discharge);
(f) section 219(2) (appeal against transfer to hospital other than state hospital);
(g) section 220(2) (appeal against transfer to state hospital); and
(h) section 290(1) (appeal by patient under regulations against proposed removal from Scotland).

Initiating appeals to the First-tier Tribunal

24. —(1) An appeal to the First-tier Tribunal must be made in writing and must state—
(a) the name and address of the appellant;
(b) the name and address of the patient;
(c) the name and address of the patient’s named person, if known;
(d) the name and address of the hospital, if any, where the patient is detained or is apparently detained;
(e) where the patient is required to reside at a specified place, the address of that specified place;
(f) the matter which is being appealed;
(g) a statement setting out the reasons for the appeal.
(2) The appellant must sign the appeal.
(3) Where an appeal is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.

Notice of the appeal

25. —(1) The Clerk must send a copy of the appeal to—
(a) the patient;
(b) the patient’s named person; and
(c) the respondent.
(2) The Clerk must send a notice of the appeal to the respondent informing the respondent of—
(a) of the case number of the appeal (which must from then on be referred to in all correspondence relating to the appeal);
(b) of the date, time and place of the hearing; and
(c) that if the respondent wishes to make representations or lead or produce evidence, the respondent must send a notice of response to the First-tier Tribunal within the period specified in the notice.

Withdrawal of appeal

26. —(1) An appellant may withdraw their appeal—
(a) at any time before the hearing of the appeal, by sending to the Clerk a notice signed by the appellant; or
(b) at the hearing of the appeal.
(2) On receipt of any such notice, the Clerk must send a copy to the respondent.
(3) No further appeal may be brought by the appellant in relation to the decision which was the subject of the appeal withdrawn.

Amendment of appeal

27. —(1) A party may, at any time before notification of the date of the hearing of the appeal, amend the appeal by sending a notice of any amendment to the Clerk.
(2) A party may amend the appeal with the permission of the First-tier Tribunal at any time after receiving notification of the date of the hearing or with the permission of the Convener at the hearing itself.
(3) On receipt of any amendment, the Clerk must send a copy of the amendment to any other party.

Part 4
References to the First-Tier Tribunal

Scope of this Part

28. This Part applies to references to the First-tier Tribunal under the following provisions—
(a) section 96(3) (reference on recorded matters by responsible medical officer);
(b) section 98(2) (reference by Commission where patient subject to compulsory treatment order);
(c) section 162(2) (reference by Commission where patient subject to compulsion order);
(d) section 185(1) (reference by Scottish Ministers where patient subject to compulsion order and restriction order);
(e) section 187(2) (reference by Scottish Ministers required by Commission where patient subject to a compulsion order and a restriction order);
(f) section 189(2) (reference by Scottish Ministers where no reference made for two years and patient subject to compulsion order and a restriction order);
(g) section 210(3) (reference by Scottish Ministers following report by responsible medical officer);
(h) section 211(2) (reference by Scottish Ministers required by Commission where patient subject to a hospital direction or transfer for treatment direction);
(i) section 213(2) (reference by Scottish Ministers where no reference has been made for two years where patient subject to a hospital direction or a transfer for treatment direction); and
(j) regulations made under section 290(1) (reference by Commission under regulations against proposed removal of a patient from Scotland).

Notice of the reference

29. —(1) The Clerk must send notice of the reference—
(a) under section 96(3), 98(2), 162(2) or regulations made under section 290(1), as the case may be, to—
(i) the patient;
(ii) the patient’s named person;
(iii) any guardian of the patient;
(iv) any welfare attorney of the patient;
(v) the mental health officer;
(vi) the patient’s responsible medical officer;
(vii) the patient’s primary carer;
(viii) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(ix) any other person appearing to the First-tier Tribunal to have an interest in the reference.
(b) under section 185(1), 187(2), 189(2), 210(3), 211(2) or 213(2), as the case may be, to—
(i) the patient;
(ii) the patient’s named person;
(iii) the patient’s primary carer;
(iv) any guardian of the patient;
(v) any welfare attorney of the patient;
(vi) any curator ad litem appointed in respect of the patient by the First-tier Tribunal;
(vii) the Scottish Ministers;
(viii) the patient’s responsible medical officer;
(ix) the mental health officer; and
(x) any other person appearing to the First-tier Tribunal to have an interest.
(2) The notice must inform the persons—
(a) of the case number of the reference (which must from then on be referred to in all correspondence relating to the reference);
(b) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing evidence; and
(c) of the date, time and place of the hearing.

Amendment of reference

30. —(1) A referee may at any time before notification of the date of the hearing, amend the reference by sending notice of any amendment to the Clerk.
(2) A referee may amend the reference with the permission of the First-tier Tribunal at any time after receiving notification of the date of the hearing or with the permission of the Convener at the hearing itself.
(3) On receipt of any amendment, the Clerk must send a copy to each party.

Part 5
Reviews

Scope of this Part

31. This Part applies to reviews by the First-tier Tribunal under section 101(2) (review of determination extending compulsory treatment order under section 86) and section 165(2) (review of determination by responsible medical officer extending compulsion order under section 152).

Notice of review

32. —(1) Where the First-tier Tribunal intend to review a determination under section 101(2) or 165(2), the Clerk must send notice of review to the following persons—
(a) the patient;
(b) the patient’s named person;
(c) any guardian of the patient;
(d) any welfare attorney of the patient;
(e) the mental health officer;
(f) the patient’s responsible medical officer;
(g) the patient’s primary carer;
(h) any curator ad litem appointed in respect of the patient by the First-tier Tribunal; and
(i) any other person appearing to the First-tier Tribunal to have an interest in the determination.
(2) The notice must inform the persons—
(a) of the case number of the review (which must from then on be referred to in all correspondence relating to the review);
(b) that a review is to be made by the First-tier Tribunal and of the reason for the review;
(c) of the date, time and place of the hearing; and
(d) that they are being afforded the opportunity—
(i) of making representations (whether orally or in writing); and
(ii) of leading, or producing, evidence.

Part 6
General Rules

Scope of this Part

33. —(1) This Part applies generally to cases before the First-tier Tribunal.
(2) The cases referred to in paragraph (1) include an application, reference, appeal or review before the First-tier Tribunal, and to any case remitted to the Tribunal by the Court of Session under section 324(5)(b)(ii).

Disqualification

34. —(1) A person must be disqualified from serving as a member of the First-tier Tribunal in any case if that person—
(a) is employed by or contracted to provide services in or to the hospital or independent health care service in which the patient is or may be detained;
(b) is directly involved in providing medical treatment, community care services, relevant services or any other treatment, care or service to that patient; or
(c) has a personal or professional connection with the patient.
(2) For the purposes of paragraph (1)(a), unless a person works wholly or mainly in a hospital or independent health care service, that person must not be regarded as being employed by or contracted to provide services in or to that hospital or independent health care service.

Preliminary or procedural matters

35. —(1) The First-tier Tribunal may, either on the written request of a party or on its own initiative, consider and determine any preliminary or procedural matter in relation to the case including any matter for which specific provision is made in this Part.
(2) Before determining such a matter, the First-tier Tribunal may—
(a) send notice to any of the parties inviting them to make written representations within such period as may be specified; or
(b) summon any of the parties to appear before the First-tier Tribunal for a preliminary hearing and may give any necessary directions relating to their appearance.
(3) The functions of the First-tier Tribunal under this rule may be carried out by the Chamber President, a Convener alone or with such other members as the Chamber President may direct.

Transfer to the Upper Tribunal

36. Where the First-tier Tribunal is satisfied that, on a point of law only, a case which it is hearing could be better considered by the Upper Tribunal for Scotland, it may request the Chamber President to transfer the case to the Upper Tribunal.

Incompetent case

37. —(1) A case before the First-tier Tribunal is incompetent if it is—
(a) outwith the jurisdiction of the First-tier Tribunal; or
(b) made otherwise than in accordance with these Rules.
(2) Where a case appears to the Clerk to be incompetent the Clerk must refer the case to a Convener.
(3) A Convener may decide whether the case is incompetent either alone or with such other members as the Chamber President may direct.
(4) Before dismissing a case as incompetent a Convener may—
(a) send notice of the proposed dismissal to the parties inviting them to make written representations within 28 days or such other period as may be specified by the Convener;
(b) afford the parties an opportunity to be heard.
(5) A Convener may, where appropriate, on dismissing an incompetent case refer the matter to the Commission.
(6) Rules 67 and 68 apply to a decision made under this rule.

Lodging of documents etc.

38. —(1) Except as otherwise provided in these Rules or as specified by the First-tier Tribunal in a particular case, a party must send to the First-tier Tribunal 7 days prior to any hearing—
(a) a list of documents and the documents that the party wishes to lead as evidence;
(b) a list of witnesses whom the party wishes to call; and
(c) any written representations the party wishes to make.
(2) Where a party seeks to rely upon documents not produced in accordance with paragraph (1)(a), the First-tier Tribunal may allow the documents to be lodged late where good reason is given.
(3) In determining whether to allow documents to be lodged late, the First-tier Tribunal must have regard to whether to do so is fair in all the circumstances.

Distribution of documents

39. —(1) Except as otherwise provided for in these Rules, the Clerk must as soon as reasonably practicable send a copy of any document received in relation to the case to the parties.
(2) At the request of any party, or on its own initiative, the First-tier Tribunal or a Convener may determine whether a document should also be sent to any other person.

Requests to the First-tier Tribunal for non-disclosure of documents

40. —(1) A request for non-disclosure of any document or part of it in connection with proceedings before the First-tier Tribunal must be made in writing by the person sending the document when that document is sent to the First-tier Tribunal, indicating the words and passages for which non-disclosure is claimed and giving reasons in each instance.
(2) If so directed by the Convener or the First-tier Tribunal, the person making the request under paragraph (1) must, where practicable, supply a disclosable version of the relevant document.
(3) On receipt of a request under paragraph (1), the Convener or the First-tier Tribunal, as the case may be, must determine whether the request must be intimated to any person, and the Clerk must intimate the request to such a person inviting that person—
(a) to make written representations within such period as may be specified; or
(b) to make representations at a hearing on such date as specified in the notice.
(4) On considering the request and accompanying reasons, and after taking into account any representations received in response to any intimation of that request under paragraph (3), the Convener or First-tier Tribunal, as the case may be, may—
(a) where the Convener or First-tier Tribunal is satisfied that all or any part of the document should not be disclosed, direct that the document or any part of the document should not be disclosed;
(b) where a disclosable version has been provided under paragraph (2), direct that the version will be disclosed in place of the relevant document; or
(c) reject the request.
(5) The First-tier Tribunal must notify the person who made the request under paragraph (1) and any person to whom the request was intimated under paragraph (3) and who made representations that such a decision has been made and the reasons for that decision.
(6) Where a decision is made under this rule not to disclose a document or any part of it to a patient and the patient does not have a legal representative to represent their interests, a curator ad litem may be appointed under rule 49.

Submissions and evidence from persons who are not a party to proceedings

41. —(1) Any person who has an interest in the case and wishes to make representations (whether orally or in writing) or to lead or produce evidence may send a written request to the First-tier Tribunal stating—
(a) the person’s name and address;
(b) the nature of the person’s interest; and
(c) the person’s reasons for the request.
(2) A written request in paragraph (1) must be accompanied by a copy of any documents that the person intends to rely on.
(3) The First-tier Tribunal may refer the request to a Convener to decide or decide the matter itself at a hearing.
(4) On receipt of a request and accompanying documents under paragraphs (1) and (2), the Clerk must send a copy of them to the parties, inviting the parties to make written representations within such period as may be specified by the First-tier Tribunal or Convener.
(5) At the request of any party in writing within that period, the First-tier Tribunal or a Convener, as the case may be, may afford the parties an opportunity to be heard either by a Convener alone or with such other members as the Chamber President may direct.
(6) The First-tier Tribunal or a Convener, as the case may be, must consider any representations made, and if satisfied that the person who made the request under paragraph (1) has an interest in the case, and that it is reasonable to do so, may grant that request.
(7) On granting a request made under paragraph (1), the First-tier Tribunal or a Convener, as the case may be, must consider whether any decision already taken in the case requires to be reconsidered.

Directions

42. —(1) Except as otherwise provide for in these Rules, the First-tier Tribunal may at any time, either on the request of a party or on its own initiative, give such directions as the First-tier Tribunal considers necessary or desirable to further the principles in the 2003 Act in the conduct of a case and may without prejudice to the generality—
(a) direct a party to provide any further particulars or to produce any documents which may reasonably be required;
(b) direct that a party must supply a list of documents and a list of witnesses whom that party wishes to call to give evidence at the hearing;
(c) give directions as to the dates by which any documents or other evidence on which any party wishes to rely must be sent to the First-tier Tribunal;
(d) give a direction as to the date by which a party must send any written representations on the case to the First-tier Tribunal;
(e) direct that the parties or the parties should provide a statement of agreed facts;
(f) give directions restricting the reporting, recording, photography or filming of any hearing;
(g) give directions as to—
(i) any issues on which the First-tier Tribunal requires evidence;
(ii) the nature of the evidence which the First-tier Tribunal requires to decide those issues;
(iii) the way in which the evidence is to be led before the First-tier Tribunal; and
(iv) the exclusion of any evidence which is irrelevant, unnecessary or improperly obtained.
(h) give directions on any other matter as is necessary to enable the First-tier Tribunal to decide the case as soon as possible.
(2) Where a request is made by a party for a direction under paragraph (1), it must be made in writing, specifying the direction sought and the basis for the request.
(3) On receipt of such a request, the Clerk must intimate the request to the parties inviting them to make written representations within 14 days or such other period as the First-tier Tribunal may specify.
(4) The requirement in paragraph (3) does not require the Clerk to intimate to the person who made the request.
(5) Where a party objects to the request, the First-tier Tribunal must consider the objection and, if the First-tier Tribunal considers it necessary in order to decide the request, may afford the parties an opportunity to be heard either by the Convener alone or with such other members as the First-tier Tribunal may direct.
(6) The First-tier Tribunal must, in deciding whether to make a direction, consider any representations made.
(7) A direction under this rule may, if appropriate, include a statement of the possible consequences of failure to comply as provided for in rule 45.
(8) Where a direction is made without prior intimation to a party whom it affects, that party must be notified in writing by the First-tier Tribunal of that direction as soon as reasonably practicable.
(9) The functions of the First-tier Tribunal under this rule, may be carried out by the Chamber President, a Convener alone or with such other members, as the Chamber President may direct.

Directions on fixing another hearing

43. —(1) Where at the hearing on an application, reference, review or appeal the First-tier Tribunal does not decide the application, it must fix a further hearing.
(2) Before exercising its powers under paragraph (1) and giving any directions under rule 42, the First-tier Tribunal must afford the parties who are present at the hearing an opportunity to be heard.

Varying or setting aside of directions

44. —(1) Where a direction that affects a person is given by the First-tier Tribunal without prior intimation to that person, that person may request that the First-tier Tribunal vary it or set it aside.
(2) The First-tier Tribunal must not vary or set aside a direction under paragraph (1) without first intimating the request to the parties and considering any representations made by them.
(3) The requirement in paragraph (2) to intimate a request to the parties does not require intimation to the person who made the request.

Power on failure to comply with directions

45. —(1) If any direction given to a party under rule 42 is not complied with, the First-tier Tribunal may, before or at the hearing, direct that the party take no further part in proceedings.
(2) The First-tier Tribunal must not exercise its powers under paragraph (1) unless it has given the party concerned an opportunity to show cause why the First-tier Tribunal should not proceed to give such a direction.
(3) The functions of the First-tier Tribunal under this rule may be carried out by the Chamber President, a Convener alone or with such other member as the Chamber President may direct.

Other case management powers

46. —(1) Subject to the provisions of the 2003 Act, 2014 Act and these Rules, the First-tier Tribunal may regulate its own procedure.
(2) The First-tier Tribunal may in any proceedings—
(a) on the request of any party or on its own initiative, extend the time appointed by these Rules for carrying out any action act, even if the time appointed has expired, if—
(i) it would not be reasonable to expect the party concerned to comply or, as the case may be, to have complied with the time limit; or
(ii) it would be contrary to the interests of the patient not to extend the time limit;
(b) require a party (other than the patient) or a party’s representative or the patient’s named person to attend a hearing; and
(c) hold a hearing and receive evidence by telephone, video link or by any other method of communication if the First-tier Tribunal is satisfied that this would be fair in all the circumstances.
(3) Except where these Rules, the 2003 Act or the 2014 Act provide otherwise, the First-tier Tribunal may exercise its powers on the request of any party or on its own initiative.
(4) Where the First-tier Tribunal proposes to exercise a power on its own initiative, it may give any person likely to be affected an opportunity to make representations.
(5) Where, in accordance with paragraph (4), the First-tier Tribunal decides to give a person an opportunity to make representations, it must—
(a) specify the period within which and the manner in which any representations must be made; and
(b) take any representations into account before deciding whether to exercise the relevant power.
(6) Where there are two or more sets of proceedings pending before the First-tier Tribunal which relate to the same patient, the First-tier Tribunal may on the request of a party or on its own initiative—
(a) adjourn the whole or part of the proceedings, either generally or until a specified date or event;
(b) suspend the whole or part of any decision, either generally or until a specified date or event; or
(c) hear and determine the proceedings concurrently, and give any directions necessary to enable it to do so.

Assistance to persons with communication difficulties

47. —(1) This rule applies where—
(a) a person taking part in proceedings before the First-tier Tribunal has difficulty in communicating, or generally communicates in a language other than English; and
(b) section 261 does not apply.
(2) Where a person requires assistance to take part in the proceedings, the person must at the earliest opportunity notify the First-tier Tribunal of that requirement.
(3) Where a party becomes aware that a person requires assistance to take part in the proceedings, the party must at the earliest opportunity notify the Clerk of that requirement.
(4) The First-tier Tribunal must take all reasonable steps to make arrangements appropriate to the person’s needs.

Representation

48. —(1) This rule applies to a party who—
(a) initiates proceedings before the First-tier Tribunal;
(b) who wishes to take part in such proceedings; or
(c) is taking part in such proceedings.
(2) A party must as soon as practicable give notice to the First-tier Tribunal of the name and address of their representative.
(3) If a party has not instructed a representative, the party must give notice as soon as practicable to the First-tier Tribunal as to whether they intend to instruct such a representative.
(4) If a party wishes to be represented by a different representative at any time, the party must notify the First-tier Tribunal of the name and address of that representative.
(5) At any hearing a party may conduct their own case (with assistance from any person if the party wishes) or may be represented by a representative.
(6) A party may disclose any document or information about the proceedings to their representative without contravening any prohibition or restriction on disclosure of the document or information.
(7) Where a document or information is disclosed under paragraph (6), the representative is subject to the same prohibition or restriction on disclosure of that document or information that the party is subject to.
(8) Anything permitted or required to be done by a party—
(a) under these Rules; or
(b) to comply with a practice direction or direction,
may be done by a representative, except signing of an affidavit or precognition.
(9) The First-tier Tribunal may direct that a lay representative is not to represent a party if—
(a) it is of the opinion that the lay representative is an unsuitable person to act as a lay representative (whether generally or in the proceedings); or
(b) it is satisfied that to make such a direction would be in the interests of the efficient administration of justice.
(10) Except where otherwise provided in these Rules, where a party has a representative, the First-tier Tribunal or Clerk, as the case may be, must send all documents and notices concerning the proceedings to the representative instead of to the party.

Curator ad litem

49. —(1) A curator ad litem may be appointed by the First-tier Tribunal or a Convener, as the case may be, where any of the circumstances in paragraph (2) apply to proceedings before the First-tier Tribunal.
(2) The circumstances are—
(a) the patient does not have the capacity to instruct a legal representative in the proceedings;
(b) an application or appeal has been initiated by virtue of a provision giving a listed initiator authority to act;
(c) the First-tier Tribunal or a Convener, as the case may be, has made a decision not to disclose a document or report or part of it to the patient under rule 40, and the patient does not have a legal representative; or
(d) the patient has been excluded under rule 63 or 64 from any hearing or part of a hearing, and the patient does not have a representative.
(3) The First-tier Tribunal must provide all necessary information to any appointed curator ad litem to enable the curator to represent the patient’s interests in the proceedings.

Notices

50. —(1) Where these Rules require notice of proceedings before the First-tier Tribunal to be served upon all parties to the proceedings—
(a) there is no requirement to serve that notice on the person who initiated the proceedings; and
(b) the person must instead be sent a notice which intimates the date, time and place of the hearing and giving such directions as the First-tier Tribunal must consider appropriate in the circumstances.
(2) Where a person requests not to receive any notices or documents from the First-tier Tribunal, the First-tier Tribunal must comply with that request.
(3) A request in terms of paragraph (2) must be—
(a) in writing; and
(b) specify the proceedings before the First-tier Tribunal to which it relates.
(4) The Clerk must send to each party, not less than 7 days before the date fixed for a hearing (or such shorter period as the First-tier Tribunal or the Convener may decide is appropriate), notice intimating the date, time and place of the hearing and giving such directions as the First-tier Tribunal must consider appropriate in the circumstances.
(5) When intimating a notice in accordance with paragraph (4), the Clerk must provide each party with information and guidance, in a form approved by the Chamber President, about—
(a) the right of a party to make representations in writing;
(b) the attendance at the hearing of the parties and witnesses, including the consequences of failure to attend;
(c) the sending of documents;
(d) the right of representation or assistance by another person;
(e) the need to notify the Clerk if a party or a witness requires assistance under rule 49;
(f) the right of the parties to receive a copy of a decision of the First-tier Tribunal;
(g) the availability from the First-tier Tribunal of general procedural advice in relation to proceedings; and
(h) the availability of other sources of advice.
(6) Paragraphs (4) and (5) do not apply where parties have already been notified of the date of the hearing by virtue of a notice intimated in accordance with Parts 2 to 5 of these Rules.

Alteration of hearing

51. —(1) The First-tier Tribunal may, on receipt of a written request from a party, or on its own initiative, alter the date, time or place of any hearing and must give the parties as much notice as is reasonably practicable of any such alteration.
(2) The First-tier Tribunal must not under paragraph (1) alter without good cause the date of a hearing to a date occurring before the date originally fixed.

Power to decide a case without oral representations and oral evidence

52. —(1) The First-tier Tribunal may decide the case without oral representations and oral evidence where the following conditions are met—
(a) the First-tier Tribunal considers that, having regard to the nature of the issues raised in the case, sufficient evidence is available to enable it to come to a decision without oral representations and oral evidence;
(b) to decide the case without oral representations or oral evidence will not, in the view of the First-tier Tribunal, be contrary to the interests of the patient;
(c) the First-tier Tribunal has, as soon as reasonably practicable, given notice to those persons who require to be afforded the opportunity of making representations or of leading or producing evidence of its proposal to dispense with oral representations and oral evidence;
(d) the patient or any person notified under sub-paragraph (c) has not applied for oral representations or oral evidence to be heard; and
(e) no person who appears to the First-tier Tribunal to have an interest in the proceedings has applied for oral representations or oral evidence to be heard.
(2) The notice referred to in paragraph (1)(c) must state—
(a) that the First-tier Tribunal proposes to invoke this rule;
(b) that an application from the patient for oral representations or oral evidence to be heard will be granted;
(c) that the First-tier Tribunal will consider applications for oral representations or oral evidence to be heard from those persons who require to be afforded the opportunity of making representations or of leading or producing evidence;
(d) the latest date by which such applications must be made to the First-tier Tribunal; and
(e) that the patient is entitled to have access to independent advocacy under section 259.
(3) Applications under this rule must be in writing.
(4) As soon as reasonably practicable, after the latest date by which applications must be made under paragraph (2)(d), the First-tier Tribunal must notify—
(a) the patient; and
(b) those persons who require to be afforded the opportunity of making representations or of leading or producing evidence;
as to whether there are to be oral representations and oral evidence.

Evidence

Production of documents etc.

53. —(1) The First-tier Tribunal may, on the request of any party or on its own initiative, send a citation to any person requiring that person to attend and produce any document in the custody, or under the control of, such person which the First-tier Tribunal considers it necessary to examine.
(2) Paragraph (1) does not apply in respect of the circumstances—
(a) provided for in regulations made under section 67 of the 2014 Act; and
(b) referred to in paragraph (3).
(3) A citation under paragraph (1) must state that—
(a) it is an offence under the Scottish Tribunals (Offences in Relation to Proceedings) Regulations 2016( a) to refuse or fail to attend, or to alter, conceal or destroy or refuse to produce, a document which such person is required to produce for the purposes of the proceedings before the First-tier Tribunal; and
(b) a person need not produce any document if, the person having that document could not be compelled to produce it in proceedings in a court in Scotland.
(4) A citation under paragraph (1) does not require to be complied with unless the necessary expenses of the person whose attendance is required under the citation have been paid or tendered to the person.
(5) The Chamber President must direct whether the expenses under paragraph (4) are paid by the party who requested the person’s attendance or the First-tier Tribunal.
(6) A person receiving a citation under this rule may apply in writing to the First-tier Tribunal for the citation to be varied or set aside, and a Convener may vary or set aside the citation as they see fit.
(7) The Clerk must send a copy of the decision under paragraph (6) to the person making the application under that paragraph and the parties.
(8) A condition of the production of any document under this rule is that a party to the proceedings in the First-tier Tribunal must use the document only for the purposes of the proceedings.
(9) In giving effect to this rule, the First-tier Tribunal must take into account—
(a) the need to protect any matter that relates to intimate personal or financial circumstances or was communicated, or obtained, in confidence; and
(b) any request for non disclosure made under rule 40.

Evidence of witnesses

54. —(1) Subject to paragraph (2), evidence before the First-tier Tribunal may be given orally or by signed statement.
(2) The First-tier Tribunal may at any stage of the proceedings require the personal attendance of any witness to give oral evidence.

Attendance of witnesses

55. —(1) The First-tier Tribunal may, on the written request of any party or on its own initiative, send a citation to a person requiring that person to attend as a witness.
(2) A request by a party under paragraph (1) must give the name and address of each person in respect of whom the request is made.
(3) A citation under paragraph (1) must state that—
(a) it is an offence under the Scottish Tribunals (Offences in Relation to Proceedings) Regulations 2016( a) to refuse or fail to attend; and
(b) a person need not give evidence as a witness if the person could not be compelled to give evidence in proceedings in a court in Scotland.
(4) A citation under paragraph (1) must give the person 5 working days’ notice of the hearing, or such other period of notice as must be specified in the citation, which must be at least 48 hours’ notice.
(5) A citation under paragraph (1) does not require to be complied with unless the necessary expenses of the person whose attendance is required under the citation have been paid or tendered to the person.
(6) The Chamber President must direct whether the expenses under paragraph (5) are paid by the party who requested the person’s attendance or the First-tier Tribunal.

Expert reports

56. —(1) The First-tier Tribunal may appoint a person having appropriate qualifications to inquire into and report on any matter if any issue arises in any proceedings on which, in the opinion of the First-tier Tribunal, it would be desirable for the First-tier Tribunal to have the assistance of an expert.
(2) Subject to rule 40 (request for non-disclosure of documents), the First-tier Tribunal must supply the parties to the proceedings with a copy of any written report received under paragraph (1) in advance of the hearing.
(3) The First-tier Tribunal may direct that the expert must attend the hearing and give oral evidence.
(4) The First-tier Tribunal must pay an expert appointed under this rule the necessary expenses incurred in preparing and producing any written report and attending at the hearing, and the Chamber President must direct the amount to be paid.

The Hearing
Accommodation

57. —(1) The bodies listed in paragraph (2) must provide, in response to a request by the Chamber President and so far as it is reasonably practicable to do so, accommodation for the holding of hearings by the First-tier Tribunal.
(2) The bodies are are—
(a) a Health Board constituted by order under section 2(1)(a) of the National Health Service (Scotland) Act 1978( a);
(b) the State Hospitals Board for Scotland;
(c) a local authority, being a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994( b).

Procedure

58. —(1) At the beginning of any hearing in the First-tier Tribunal the Convener must explain the manner and order of proceedings and the procedure which the First-tier Tribunal proposes to adopt.
(2) The First-tier Tribunal may, in accordance with the principles in the 2003 Act, conduct the hearing—
(a) as informally as the circumstances of the case permit; and
(b) in the manner the First-tier Tribunal considers—
(i) to be just; and
(ii) most suitable to the clarification and determination of the matters before the First-tier Tribunal.
(3) The parties to the proceedings, and any person whose request to make written or oral representations or lead or produce evidence has been granted by the First-tier Tribunal, must be entitled to make representations and to lead or produce evidence.
(4) At any hearing the First-tier Tribunal may, if satisfied that it is just and reasonable to do so, permit a party or any person whose request to make written or oral representations or lead or produce evidence has been granted by the First-tier Tribunal to rely on matters not stated in the application, reference, appeal, review, or written representations and to lead or produce any evidence not previously notified to the parties.
(5) Having considered the circumstances of the parties and whether (and to what extent) they are represented, the Convener—
(a) may, in order to assist resolution of any disputed fact, put questions to—
(i) the parties;
(ii) any person whose request to make written or oral representations or lead or produce evidence has been granted by the First-tier Tribunal; and
(iii) witnesses;
or may allow another member of the First-tier Tribunal to put such questions; and
(b) must, to the extent the Convener considers it necessary for the just conduct of the hearing, explain any legal terms or expressions which are used.
(6) The First-tier Tribunal may exclude from the hearing any person who is to appear as a witness in the case until such time as they give evidence if it considers it is fair in all the circumstances to do so.

Absence of a member of the First-tier Tribunal

59. —(1) Except as provided for otherwise in these Rules, a First-tier Tribunal must not decide any question unless all members of the tribunal are present and, if any member is absent, the case must be adjourned or referred to another First-tier Tribunal.
(2) If a member of a First-tier Tribunal ceases to be a member of the First-tier Tribunal or is otherwise unable to act before that First-tier Tribunal has commenced hearing the case, the Chamber President may allocate the hearing of that case to a different member of the First-tier Tribunal.
(3) If, after the commencement of any hearing, a member of a First-tier Tribunal other than the Convener is absent, the case may, with the consent of the parties, be heard by the other two members and, in that event, the First-tier Tribunal must be deemed to be properly constituted.

Adjournment of the hearing

60. —(1) The First-tier Tribunal may on the request of a party or on its own initiative, adjourn a hearing in order that further information or evidence may be obtained or for such other purpose as it sees fit.
(2) The First-tier Tribunal must consider any representations made by any other party before deciding whether or not the hearing will be adjourned.
(3) The First-tier Tribunal must notify the parties of the date, time and place that the hearing has been adjourned to.
(4) Paragraph (3) does not apply where the date, time and place that the hearing is adjourned to are announced before the adjournment.

Hearings in public or private

61. —(1) Subject to the provisions of this rule, hearings must be held in private.
(2) Where a patient applies in writing for a hearing to be held in public, the First-tier Tribunal may make an order that a hearing be held in public.
(3) The First-tier Tribunal may refuse to make an order under paragraph (2) where any of the requirements of paragraph (4) is met.
(4) The requirements are that a public hearing—
(a) would fail to safeguard the welfare of the patient or any other person;
(b) would not, in all the circumstances, allow the fair hearing of the case; or
(c) would prejudice the interests of justice.
(5) The First-tier Tribunal must refuse to make an order under paragraph (2) only to the extent necessary to protect the interest which is being protected by the refusal, and only in relation to those parts of a hearing in respect of which any of the requirements of paragraph (4) is satisfied.
(6) The following persons must be entitled to attend a hearing, even although it may be held in private—
(a) the Chamber President;
(b) a member of the First-tier Tribunal who is not a member of the First-tier Tribunal conducting the hearing, or a member of staff of the First-tier Tribunal, with the agreement of the Convener;
(c) an interpreter or other person giving other necessary assistance to a person entitled to attend the hearing;
(d) any person whose attendance has been authorised by the Chamber President; and
(e) any person whose attendance is needed to ensure the health, safety and welfare of the patient or any other person attending the hearing.
(7) The First-tier Tribunal may exclude from a hearing or any part of a hearing, any person, other than a representative of the patient or a party, where it is considering a document withheld from disclosure in accordance with rule 40.
(8) Where the First-tier Tribunal decides to exclude a person under paragraph (7), it must inform the person excluded of its reasons and record those reasons in writing.

Publicity

62. —(1) Where the First-tier Tribunal has made an order under rule 61(2), the First-tier Tribunal may on the request of a party or on its own initiative make an order that any publicity to be given to the hearing should be limited, where the Convener considers it appropriate bearing in mind—
(a) the need to safeguard the welfare of a patient or any other person;
(b) the need to protect the private life of any person;
(c) any representations on the matter which a party has provided in writing; and
(d) the effect of any direction under rule 42.
(2) An order under paragraph (1) must limit publicity only to the extent necessary to protect the interest which is being protected by the order.
(3) An order under paragraph (1) may allow publicity that does not identify the parties.

Exclusion of persons from hearings in exceptional circumstances

63. —(1) Where the Convener or the First-tier Tribunal is satisfied that attendance of any person at a hearing or part of a hearing may cause serious harm to the patient or any other person, the Convener or the First-tier Tribunal, as the case may be, may make a direction that such a person must be excluded from the hearing or any part or it.
(2) The Convener or the First-tier Tribunal, as the case may be, may appoint a person having appropriate skills or experience to—
(a) assess whether attendance by the patient or another person may cause serious harm; and
(b) report on the matter.
(3) The First-tier Tribunal must pay to an expert appointed under paragraph (2) such an amount in respect of necessary expenses incurred in preparing and producing any report as the Chamber President must direct.
(4) Where the Convener or the First-tier Tribunal is considering making a direction under paragraph (1), the Clerk must invite the parties to make written representations both as to the necessity of the direction and as to the availability of alternative measures, within such period as may be specified by the Convener.
(5) At the request of any party in writing within the period specified under paragraph (4), the First-tier Tribunal may afford the parties an opportunity to be heard either by the Convener alone or with such other members as the Chamber President may direct.
(6) If the person who may be the subject of a direction under paragraph (1) is the patient, and the patient does not have legal representation, the First-tier Tribunal must—
(a) invite the patient to seek an adjournment of the First-tier Tribunal’s consideration of the matter, in order to obtain legal representation and,
(b) grant any adjournment sought by the patient.
(7) A direction under paragraph (1)—
(a) must exclude the patient or other person only to the extent strictly necessary to prevent the serious harm which may be caused by attendance, and
(b) may be made only after taking into account any report under paragraph (2) and any representations made under paragraph (4) or (5).
(8) Where such a direction excluding the patient is made and the patient does not have a representative, a curator ad litem may be appointed under rule 49.

Exclusion of persons disrupting hearing

64. —(1) Without prejudice to any other powers of the First-tier Tribunal, the First-tier Tribunal may exclude from a hearing, or part of a hearing—
(a) any person (including a party or the party’s representative) whose conduct has disrupted, or is likely, in the opinion of the First-tier Tribunal, to disrupt the hearing;
(b) any person whose presence is likely, in the opinion of the First-tier Tribunal, to make it difficult for any party to make representations or present evidence necessary for the proper conduct of the hearing; or
(c) any person whose conduct has otherwise interfered with the administration of justice or is likely to do so.
(2) In deciding whether to exercise the power under paragraph (1) the First-tier Tribunal must have regard to—
(a) the interests of the parties; and
(b) in the case of the exclusion of a party or party’s representative, whether the party will be adequately represented.
(3) Before the First-tier Tribunal decides to exclude a party, the First-tier Tribunal must—
(a) allow the party’s representative sufficient opportunity to consult the party;
(b) afford the party concerned and any other party, as it thinks fit, an opportunity to be heard; and
(c) consider the availability of alternative measures which may enable the party concerned to continue to participate in the hearing.
(4) Where the party concerned is the patient, and that patient does not have a representative present, the First-tier Tribunal may, before making a decision under paragraph (1), adjourn the hearing to allow—
(a) the patient to obtain a representative; or
(b) a curator ad litem to be appointed under rule 49.
(5) The First-tier Tribunal may make such alternative arrangements as may be necessary to enable a person excluded under this rule to continue to participate in the hearing, including allowing the hearing to continue through video-link or other method of communication.
(6) Where the First-tier Tribunal decides to exclude a patient under this rule and the patient does not have a representative to represent their interests, a curator ad litem may be appointed under rule 49.

Failure of a party to attend

65. —(1) If a party or person whose request to make written or oral representations or lead or produce evidence has been granted by the First-tier Tribunal fails to attend or be represented at a hearing, the First-tier Tribunal may, if satisfied that—
(a) the person was duly notified of the hearing; and
(b) there is no good reason for such absence,
hear and decide the proceedings in that person’s absence and may give such directions as the First-tier Tribunal thinks fit.
(2) Before deciding any case in the absence of a party or person whose request to make written or oral representations or lead or produce evidence has been granted by the First-tier Tribunal, the First-tier Tribunal must consider any written representations submitted by that party or person.
(3) Where a party has failed to attend or be represented at a hearing, the First-tier Tribunal must afford the party an opportunity to be heard either by the Convener alone or with such other members as the Chamber President may direct, to explain their absence and to advise whether the party wishes to continue with their involvement in the proceedings.

Inability to attend

66. —(1) If the Convener is satisfied that any party is unable, through illness, age, incapacity or other sufficient cause to attend the hearing, the Convener may make such arrangements as may appear appropriate in all the circumstances of the case, to decide the case fairly
(2) Arrangements by the Convenor under paragraph (1) may include—
(a) permitting the party unable to attend to provide a signed statement, or evidence in such form as the Convener thinks fit;
(b) taking the evidence of expert or other witnesses on behalf of the party unable to attend;
(c) enabling the party unable to attend to make representations on the evidence;
(d) enabling evidence to be taken and representations heard by video-link; and
(e) to allow the case to be decided in the absence of the party unable to attend.

Decisions of the First-tier Tribunal

67. —(1) The decision of the First-tier Tribunal may be given at the end of the hearing or reserved until a later date.
(2) The decision must be signed by the Convener and dated.
(3) Where a decision is to be made by more than one member of the First-tier Tribunal, the decision of the First-tier Tribunal must be voted for by a majority of members of that tribunal and, if there is a tie, the Convener must have a second vote as a casting vote.
(4) A decision of the First-tier Tribunal must be recorded in a document which contains a full statement of the facts found by the First-tier Tribunal and the reasons for the decision.
(5) Where a decision requires under paragraph (2) to be signed by the Convener, if the Convener is unable, by reason of death or incapacity to sign it, the decision must be signed by the other members of the First-tier Tribunal who heard the case or the Chamber President, as the case may be, who must certify that the Convener is unable to sign.

Intimation of decisions of the First-tier Tribunal

68. —(1) The First-tier Tribunal must, as soon as reasonably practicable, send notice of the decision under rule 68 to—
(a) the parties;
(b) the patient’s mental health officer (if they are not a party to the proceedings);
(c) the patient’s responsible medical officer (if they are not a party to the proceedings); and
(d) such other persons as the First-tier Tribunal may direct.
(2) Information, in such form as the Chamber President may approve, must be sent with the notice under paragraph (1), explaining any right of appeal under section 322 against the First-tier Tribunal’s decision, including any time limits which may apply.
(3) Where a decision has been made by the First-tier Tribunal, whether at a hearing or otherwise, the Clerk must within 21 days of the date on which the decision is signed under rule 68 send a copy of the decision—
(a) to the Commission; and
(b) where the case was remitted to the First-tier Tribunal by the Court of Session, to that court.
(4) Paragraph (5) applies to decisions made by the First-tier Tribunal in relation to applications or references under sections 50(1), 63(1), 92, 95, 98(2), 99(1), 100(2), 120(2), 149, 158, 161, 162(2), 163(1), 164(2), 185(1), 187(2), 189(2), 191, 192(2), 210(3), 211(2), 213(2), 214(2), 255(4), (6) and (7), 256(1), 264(2), 267(2), 268(2), 271(2) and 291(2), but does not apply in relation to any such applications which are not granted by the First-tier Tribunal.
(5) Where a copy of a decision is sent to the Commission under paragraph (3) the Clerk must at the same time send to the Commission a copy of:—
(a) the application or reference, as the case may be; and
(b) in the case of an application, any mental health report that is required under the 2003 Act to accompany that application.
(6) Other than where a decision is made at the end of the hearing, a decision must be treated as having been made on the date on which a copy of the decision is sent to the parties under paragraph (1).
(7) Clerical mistakes or errors arising from an accidental slip or omission in the decision signed under rule 68, may at any time be corrected by the Convener by a certificate in writing.
(8) If the Convener is unable, by reason of death or incapacity, to make a correction in accordance with paragraph (7), the correction must be made by the other members of the First-tier Tribunal who heard the case or the Chamber President, as the case may be, who must certify that the Convener is unable to make the correction.
(9) If a document is corrected by certificate under paragraph (7) or (8), or if a decision is altered in any way by order of an appellate court, the Clerk must send a notice of the alteration to each of the parties and the Commission.

Publication

69. —(1) The Chamber President must make such arrangements as the Chamber President considers appropriate for the publication of decisions of the First-tier Tribunal.
(2) Decisions may be published electronically.
(3) A decision may be published in an edited form, or subject to any deletions, where the Convener considers it appropriate, bearing in mind—
(a) the need to safeguard the welfare of the patient or any other person;
(b) the need to protect the private life of any person; and
(c) any representations on the matter which any party to the proceedings which gave rise to the decision has provided in writing.
(4) A decision of the First-tier Tribunal must be published in such a manner as to protect the anonymity of the patient.

Application for permission to appeal a decision of the First-tier Tribunal

70. —(1) A person seeking permission to appeal must make a written application to the First-tier Tribunal for permission to appeal.
(2) An application under paragraph (1) must—
(a) identify the decision of the First-tier Tribunal to which it relates;
(b) identify the points of law on which the person making the application wishes to appeal; and
(c) state the result the party making the application is seeking.

First-tier Tribunal’s consideration of application for permission to appeal

71. —(1) The First-tier Tribunal must decide whether to give permission to appeal on any point of law.
(2) The First-tier Tribunal must provide a record of its decision as soon as reasonably practicable to the parties to the relevant proceedings in the First-tier Tribunal, and any other person appearing to the First-tier Tribunal to have an interest in the appeal.
(3) If the First-tier Tribunal refuses permission to appeal on any point of law, it must provide with the record of its decision under paragraph (2)—
(a) a statement of its reasons for the refusal; and
(b) information on the right of the person who had sought permission under rule 70 to make an application to the Upper Tribunal for permission to appeal, and the time within which, and the method by which, such an application must be made.

Review of a decision

72. No review of a decision of the First-tier Tribunal is available under these Rules.

Miscellaneous

Performance of the First-tier Tribunal’s functions

73. The Chamber President may authorise any member of the staff of the First-tier Tribunal to exercise such administrative functions under these Rules as the Chamber President must specify.

Relief from failure to comply with the Rules

74. —(1) Where a party has failed to comply with any provision of these Rules due to mistake, oversight or other excusable cause before the First-tier Tribunal has decided the case, the First-tier Tribunal may—
(a) relieve the party from the consequences of that failure under these Rules; and
(b) give any direction as it thinks fit.
(2) In particular, where it considers that any party may have been prejudiced by such a failure to comply, the First-tier Tribunal may take any necessary steps to enable the case to proceed as if the failure had not occurred.
(3) Necessary steps under paragraph (3) may include amending any document and giving notice.

Signature of documents

75. —(1) Where these Rules require a person to sign a document, if the document is to be sent by email, it must be signed with the electronic signature of that person.
(2) Where these Rules require a person to sign an application or appeal, it may be signed on the person’s behalf by the person’s representative.

Proof of documents

76. Any document purporting to be a document signed or issued by the Chamber President or Convener on behalf of the First-tier Tribunal must, unless the contrary is proved, be deemed to be a document so signed or issued, as the case may be.

Method of delivering and receipt of notices and documents

77. —(1) Any notice or document required or authorised by these Rules to be sent to the First-tier Tribunal may be sent or delivered to the Office of the First-tier Tribunal or such other office as may be notified by the First-tier Tribunal.
(2) All notices and documents required by these Rules to be sent or given by the First-tier Tribunal or the Clerk to a person must be—
(a) in the case of a party—
(i) sent or delivered to the address specified by that party;
(ii) transmitted by fax to a specified fax number, where the party has agreed in writing that the party will accept notices and documents by fax; or
(iii) sent by email to a specified email address, where the party has agreed in writing that the party will accept notices and documents by email,
(b) in the case of any other person—
(i) sent or delivered to the address specified by that person, or the person’s last known address;
(ii) transmitted by fax to a specified fax number, where the person has agreed in writing that the person will accept notices and documents by fax; or
(iii) sent by email to a specified email address, where the person has agreed in writing that the person will accept notices and documents by email.
(3) All notices and documents required by these Rules to be sent or given by the First-tier Tribunal or the Clerk to a person, other than a party, must be—
(a) sent or delivered to that person’s last known address; or
(b) in any manner specified for that purpose by the First-tier Tribunal or person to whom the notice or document is directed.
(4) Any notice or document sent to a person in accordance with this rule must, unless the contrary is proved, be deemed to be received—
(a) where the document is sent by post, on the day after the day on which it was sent; and
(b) in any other case, on the day on which the document was transmitted or delivered to that person.
(5) A notice or document sent or given to a party’s representative must be deemed to have been sent or given to that party.
(6) A party may at any time by notice to the First-tier Tribunal change the address to which notices and documents are to be sent to the party.

Transfer of case

78. —(1) Where a First-tier Tribunal is satisfied, in relation to a case which it is hearing that that case could be better considered by First-tier Tribunal members based in another geographical area, it may request the Chamber President to transfer the case to a First-tier Tribunal constituted of such other members.
(2) Where a case has been transferred in terms of this rule, any matters already decided in the case must not be further considered by the First-tier Tribunal to which the case is transferred.

Explanatory Note

(This note is not part of the Regulations)

These Regulations set out, in the schedule, the First-tier Tribunal for Scotland Mental Health Chamber ("the Chamber") Rules of Procedure ("the Rules"). These Rules prescribe the practice and procedure to be followed in proceedings before the Chamber. The Chamber was created under the Tribunals (Scotland) Act 2014. The Rules re-enact, with minor amendments, the rules of procedure for the Mental Health Tribunal for Scotland whose functions have transferred to the Chamber.

Regulation 2 provides for the proceedings to which the Rules apply and regulation 3 makes transitional provision about applications received by the Chamber before the day these Regulations come into force.