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

Part 4: Consultation On Draft Regulations That Set Out The Rules Of Procedure For The Upper Tribunal For Scotland When Hearing Cases From The First-Tier Tribunal Mental Health Chamber

Background

36) 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 either or both the First-tier Tribunal and the Upper Tribunal.

Draft Regulations

37) The Upper Tribunal for Scotland (Rules of Procedure) Regulations 2016 ^[11] (the 2016 Regulations) set out the rules for hearing appeals from the First-tier Tribunal. Due to the nature of the work of the MHTS, a bespoke set of Upper Tribunal Rules of Procedure has been drafted for use when it is hearing cases from the First-tier Tribunal Mental Health Chamber. The bespoke procedural rules being consulted on (at Annex C) therefore differ in some areas from the general rules provided in the 2016 Regulations.

38) When the Upper Tribunal receives notice of an appeal, it must fix a hearing and notify respondents and interested parties of that hearing. Only when all parties have consented to a decision being made without a hearing can the Upper Tribunal proceed on that basis.

39) It is proposed that the Upper Tribunal may suspend the effect of a decision made either in the First-tier Tribunal or the Upper Tribunal, where that decision is the subject of an appeal, as set out in rule 7. This rule is replicated from the 2016 Regulations. It is considered that it would be beneficial for the Upper Tribunal to have this ability in the context of mental health cases, as, it may be in the best interests of certain patients.

40) Rule 19(4) provides the criteria for determining what fresh evidence may be led in the Upper Tribunal. This rule is replicated from the 2016 Regulations. It would be helpful to receive views on whether the wording of this rule is appropriate for mental health cases.

41) All hearings will be held in private, unless a party makes an application for the proceedings to be held in public and the Upper Tribunal decides that to hold the hearing in public would not be detrimental to the patient’s welfare. Public disclosure of documents anad information before the Upper Tribunal is therefore prohibited, unless the Upper Tribunal makes an order allowing the public disclosure of an aspect of the proceedings.

42) The time limit for notices of appeal and responses to notices of appeal to the Upper Tribunal is 14 days. The time limit for the Upper Tribunal to give notice of a hearing is between 7 and 14 days. The time limit for the Upper Tribunal to give parties notice of its decision and reasons is 14 days.

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