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

Part 3: Consultation On Draft Regulations That Set Out The Rules Of Procedure For The First-Tier Tribunal For Scotland Mental Health Chamber

Background

26) Schedule 9, paragraph 2(2) and section 81 of the 2014 Act provides the power for the Scottish Ministers to make regulations for the procedural rules of a listed tribunal that are in force immediately before the transfer to have effect for the purposes of the First-tier Tribunal.

Draft Regulations

27) As the MHTS already has comprehensive procedural rules in place these have been replicated where possible in the draft Mental Health Chamber Rules in Annex B. However, refinements are also proposed which aim to remove duplication, increase transparency and, where appropriate, to provide consistency within the Scottish Tribunals.

28) It is proposed that the First-tier Tribunal should be able to transfer cases to the Upper Tribunal to hear in the first instance, as provided at rule 36 of the draft Mental Health Chamber Rules. It is proposed that transfers of cases should be restricted only to points of law, and that the permission of the Chamber President would need to be given before a transfer could take place.

29) We have amended the existing rule 44 to remove the power to dismiss a case where it is considered to be frivolous or vexatious, and, to remove reference to cases which have no reasonable prospect of success. The Tribunal has to date not used this power and it is thought that, in the context of mental health cases, it would not be appropriate to dismiss a case on any of these grounds. Rule 37 of the draft Mental Health Chamber Rules sets out the restricted grounds for dismissal of a case.

30) Under rule 40(6) of the draft Mental Health Chamber Rules, documents which the Tribunal decides should not be disclosed to a patient will only be able to be disclosed to a legal representative or, in their absence, a curator ad litem. Such documents will no longer be disclosed to lay representatives. This change is to reflect the position that lay representatives have no professional conduct duties which would prevent them from sharing documents.

31) As set out in draft rule 52, the Tribunal may decide a case at such a hearing if all the parties, having been afforded an opportunity to provide such evidence or representations, do not wish to. The wording of this rule has been updated to reflect the definition of a hearing under the rules and to more closely align with the 2003 Act. The procedure is as set out in the current rules. Comments are sought on the circumstances in which the Tribunal might use this procedure in practice, which could be clarified in the wording of the rule. We would also be interested to hear views on how procedure in such cases could be improved upon to benefit users of the Tribunal.

32) It is proposed that the requirements under rule 62 of the existing MHTS Rules of Procedure in relation to expert reports are amended. Currently, any expert report obtained by a person in relation to a patient’s case must be disclosed to the Tribunal (unless permission is sought from the Tribunal for it not to be disclosed). It is proposed that this requirement is removed so that there is no obligation for the patient or any other person to disclose a report to the Tribunal that they have obtained. Rule 56 of the draft Mental Health Chamber Rules, relating to expert reports, reflects this position.

33) In order to simplify proceedings for interested third parties and to prevent third parties from automatically receiving copies of papers, orders, records or certificates which contain sensitive information, it has been proposed that the concept of a ‘relevant person’ be removed and we would welcome comments on this proposal. In addition, this simplification has removed the requirement on parties to provide a notice of response to the Tribunal. Any person with an interest in a case, such as a victim, nearest relative or carer, or listed initiator ^[10] , should be able to send the Tribunal a written request seeking leave to make oral or written submissions and/or permission to lead or produce evidence. We are also seeking views on whether is necessary to remove the requirement or ability to seek leave from the Tribunal to enter the proceedings as a party.

34) Rule 47 of the current MHTS Rules of Procedure provides that the Tribunal may decide at its own initiative whether to withhold documents or reports from disclosure to the patient or parties involved in a case, although only in exceptional circumstances. It is proposed that this rule should be amended to provide that the Tribunal must only assess documents that it receives from people who have sought leave to provide representations, in order to determine whether those should be withheld from the patient or other parties. A draft rule has not been provided and so views are being sought on principle only.

35) In order to mirror current mental health practice and procedural rules, which are intended to ensure that a patient’s appeal is heard promptly, we do not intend to bring in a right to review any decision of the First-tier Tribunal.