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

Annex D

Scottish Statutory Instruments

2018 No.

Tribunals And Inquiries

The First-tier Tribunal for Scotland Mental Health Chamber and Upper Tribunal for Scotland (Composition) 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 38(1) and 40(1) of the Tribunals (Scotland) Act 2014( a) and all other powers enabling them to do so.

In accordance with section 11(2) of that Act, they have consulted the President of Tribunals.

In accordance with section 79(2)(c) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.

Citation, commencement and interpretation

1. —(1) These Regulations may be cited as the First-tier Tribunal for Scotland Mental Health Chamber and Upper Tribunal for Scotland (Composition) Regulations 2018 and come into force on 12th November 2018.
(2) In these Regulations—
"the 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003( b);
"the 2014 Act" means the Tribunals (Scotland) Act 2014;
"the 2015 Regulations" means the Scottish Tribunals (Eligibility for Appointment) Regulations 2015( c);
"Chamber President" means the Chamber President of the First-tier Tribunal;
"First-tier Tribunal" means the First-tier Tribunal for Scotland Mental Health Chamber;
"judicial member of the First-tier Tribunal" means a sheriff who is authorised by the President of Tribunals for the purpose of section 17(3)(a) of the 2014 Act;
"judicial member of the Upper Tribunal" means a judge of the Court of Session who is authorised by the President of the Tribunals for the purpose of section 17(4) of the 2014 Act;
"legal member" means a member of the First-tier Tribunal who qualifies for appointment under sub-paragraph (1) or (2) of paragraph 5 of schedule 3 of the 2014 Act.
"ordinary member (medical experience)" means a member of the First-tier Tribunal for Scotland Mental Health Chamber who is eligible for appointment under regulation 6 of the 2015 Regulations;
"ordinary member (mental health care experience)" means a member of the First-tier Tribunal for Scotland Mental Health Chamber who is eligible for appointment under regulation 7 of the 2015 Regulations.

Composition of First-tier Tribunal

2. —(1) The First-tier Tribunal, when convened to decide any matter in proceedings other than excepted proceedings, must consist of—

(a) the Chamber President, an ordinary member (medical experience) and an ordinary member (mental health care experience); or
(b) a legal member, an ordinary member (medical experience) and an ordinary member (mental health care experience).
(2) The First-tier Tribunal, when convened to decide any matter in excepted proceedings, must consist of—
(a) the Chamber President, an ordinary member (medical experience) and an ordinary member (mental health care experience); or
(b) a judicial member of the First-tier Tribunal, an ordinary member (medical experience) and an ordinary member (mental health care experience).
(3) For the purpose of this regulation, excepted proceedings are proceedings which relate solely to an application under section 255 or 256 of the 2003 Act where the patient is subject to—
(a) a compulsion order and a restriction order;
(b) a hospital direction; or
(c) a transfer for treatment direction.
(4) This regulation is subject to any provision in the First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018() which allows matters in proceedings to be decided by the Chamber President or a convener alone or with such other members as the Chamber President may direct.

Composition of Upper Tribunal hearing appeals or cases transferred from First-tier Tribunal

3. —(1) The Upper Tribunal, when deciding a case appealed or transferred from the First-tier Tribunal to the Upper Tribunal, must consist of—
(a) a sheriff principal;
(b) the Chamber President, acting either alone or with a judicial member of the Upper Tribunal;
(c) the President of Tribunals, acting either alone or with another judicial member of the Upper Tribunal; or
(d) the Lord President, acting either alone or with another judicial member of the Upper Tribunal.

(2) The Chamber President referred to in paragraph (1) must not have had any involvement in the case prior to the appeal or referral of the case to the Upper Tribunal, other than, in accordance with rule 69(5) of the First-tier Tribunal for Scotland Mental Health Chamber Rules of Procedure 2018(), signing a decision of the First-tier Tribunal and certifying that the convener is unable to sign.

A member of the Scottish Government

St Andrew’s House,
Edinburgh

2018

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision as to the composition of the First-tier Tribunal for Scotland when dealing with a case in the Mental Health Chamber. They also make provision as to the composition of the Upper Tribunal for Scotland when hearing cases from the First-tier Tribunal for Scotland Mental Health Chamber.

These two Tribunals were established by the Tribunals (Scotland) Act 2014 ("the Act"). The First-tier Tribunal is divided into chambers according to the subject matter of the case. Members of the tribunals can be ordinary members, legal members or judicial members according to criteria set out in the Tribunals (Scotland) Act 2014 and regulations made under that Act. This instrument sets out what combination of different types of member may hear cases in the two tribunals.