The Mental Health (Care and Treatment) (Scotland) Act 2003: Are You a Named Person? - A Guide Supporting the Role of Named Person

PART THREE - THE MENTAL HEALTH TRIBUNAL

25. What is the Mental Health Tribunal?

The Mental Health Tribunal for Scotland is an independent organisation introduced by the Mental Health (Care and Treatment) (Scotland) Act 2003. Its creation marked a fundamental change in the way decisions are made about long term compulsory care and treatment of people in Scotland who have a mental health disorder. It aims to provide a responsive, accessible, independent and impartial service. Its role is to make decisions about compulsory measures under the Act in relation to a service user's care and treatment.

They consider the following types of proceedings:

• applications to the Tribunal, e.g. for a compulsory treatment order ( CTO),
• appeals to the Tribunal, e.g. appeal against a short-term detention certificate or a compulsory treatment order ( CTO),
• appeals relating to certain orders relating to criminal proceedings/offences,
• applications for variation of an order,
• appeals against the Responsible Medical Officer's ( RMO) determination to extend or revoke (cancel) an order,
• appeal against transfer to another hospital (either within or outwith Scotland), and
• application against being held in conditions of greater security than are necessary. (This right to review only applies to people in the State Hospital in Carstairs),
• references to the Tribunal by the Mental Welfare Commission,
• references to the Tribunal by the Responsible Medical Officer ( RMO) where a recorded matter is not being provided,
• cases remitted to the Tribunal by the Sheriff Principal or the Court of Session,
• the Tribunal also hears cases involving people on orders resulting from criminal proceedings. Cases involving restricted patients will be chaired by a sheriff.

If you or the service user want to apply to the Tribunal for a review of an order you can write to the Tribunal Administration telling them you would like to make an appeal against an order. You will need to provide details of the service user's name, the name of their doctor and the hospital in their order. The Tribunal Administration will advise if an appeal is possible and if so, how to go about it. Alternatively you may seek advice from a solicitor who can make an application for you.

26. How can I contact the Tribunal?

The Tribunal Administration ( MHTSA) is based in Hamilton, Lanarkshire. All communication and papers should go through that office ( see contact details on page 20).

27. How does the Tribunal hear cases?

The Mental Health Tribunal ( MHTS - the umbrella organisation) hears cases by means of mental health tribunals held in venues across Scotland. Each of the Tribunals has a panel of three members - legal, medical and general. The legally qualified member will chair the hearing. Medical members are psychiatrists. General members are people with some special interest in mental health including nurses, social workers, psychologists, service users and carers. All have relevant qualifications and experience in dealing with people with mental health disorders. None of the panel should have had any previous connection with the service user.

Tribunals should be as informal and comfortable as possible for all those concerned, in order to encourage them to participate in the proceedings. They look at all the relevant information in order to decide what care and treatment is in the best interest of the service user.

28. I would like legal advice, but am worried about the expense - will I qualify for legal aid?

The Tribunal cannot provide any person with legal advice in relation to the 2003 Act or proceedings before the Tribunal. If you require legal advice, you should contact a solicitor.

If as the named person you instruct a legal representative to act on your behalf at the Tribunal, you are entitled to free representation under Assistance by way of Representation ( ABWOR). There are no means or merits tests.

29. If I have legal representation at the Tribunal, what role will I then have?

Your solicitor can attend the Tribunal hearing, and act on your behalf. You can still attend the hearing and will be able to answer any questions put to you.

30. Will I be entitled to claim travel and other expenses?

The Mental Health Tribunal for Scotland Administration ( MHTSA) will reimburse reasonable travel/other expenses for a named person attending a Tribunal hearing. The most economical mode of travel (normally public transport) must be used. The cost of a taxi may be allowed for aged or infirm attendees but requires advance authorisation by MHTSA. Air travel is only allowed where prior permission of MHTSA has been obtained. Overnight accommodation should only be required in exceptional circumstances and should normally be agreed in advance.

At the hearing, the hearings clerk will provide an expenses claim form which if possible should be completed on the day and handed back with all receipts. Expenses will then be paid at a later date once the MHTSA finance office has processed the claim.

Where a named person is in receipt of benefits, nominal travel expenses may be paid on the day of the hearing. However, this can only take place if the named person has notified the Tribunal in advance of their request - otherwise, the Clerk will not have funds available to make the payment. The named person must then produce evidence to the Clerk on the day of the hearing that they are in receipt of benefits.

31. I have information that I would like the Tribunal to consider...

It is best if you submit any relevant information to the MHTSA at its Headquarters in Hamilton, prior to the hearing. This will allow the Tribunal to pass on the information to other parties. However, if you are unable to do so, you can bring the information to the hearing and give it to the Convenor on the day. A Tribunal Clerk will also be in attendance and they can also help you with any queries you may have.

32. What information will I receive prior to the hearing?

The Tribunal Administration " MHTSA or Administration" team will ensure that the service user and their named person receive information about the time and place of the hearing, and will send them copies of any relevant reports or papers - which will vary according to the nature of the hearing. For example, if the hearing is about an application for a compulsory treatment order ( CTO), the papers will include reports from two doctors and from the Mental Health Officer ( MHO). For other hearings the papers will usually include a report from the Responsible Medical Officer ( RMO), and sometimes a report from the Mental Health Officer ( MHO).

The Tribunal will normally send out information well in advance of the hearing, but by the nature of some applications - particularly first hearings for compulsory treatment orders - the notification and papers might arrive with only a few days or with just 24 hours warning in order that there is as little delay as possible and to meet the timing requirements under the 2003 Act.

If the service user and/or their named person have any questions about the hearing, they can contact the Administration.

33. Will I receive all the information, even if there are confidentiality issues in the case?

Generally speaking, you will receive all the information, including any application forms and medical reports in relation to the service user. However, the Tribunal may withhold a document, or part of a document or report, when the information may be considered likely to harm the service user or another person.

34. What if I don't want to see all the documents regarding the service user?

If you decide that you only want to know the current situation regarding the service user, you should notify the Tribunal Administration in writing that you do not wish to receive any documents in relation to the proceedings.

It is not possible to receive some of the documents, and not others. That is, the named person must opt to receive all the documents, or none.

The decision not to receive any of the documents should be considered very carefully because without all the background information, you may not be able to fully represent the service user's interests. If you have a solicitor you can ask the Tribunal to send the documents to them instead of to you.

35. Where will the hearing be held?

The hearing will usually be held in a place near the service user. Their local authority and Health Board have made suitable accommodation available for hearings. This could be in a local hospital or other facilities. However, in some cases all or part of a hearing may be held via a video or telephone link.

Both you and the service user may be able to claim travel and other expenses. The Tribunal Administration will give you information about this, and you can speak to the clerk on the day about getting these paid.

36. Who else might be invited to attend the hearing?

You and the service user will be invited to attend. Others who may attend include the service user's welfare guardian or welfare attorney, if appointed by the service user, along with any other person with an interest who the Tribunal thinks should be allowed to speak. This might include the service user's carer, independent advocacy worker or community psychiatric nurse.

The service user's Responsible Medical Officer ( RMO), Mental Health Officer ( MHO), and possibly their General Practitioner ( GP) may also be invited to the hearing.

If the service user's Responsible Medical Officer ( RMO) or Mental Health Officer ( MHO) is making an application, it is expected that they will be present at the hearing.

37. What is a curator

Where the service user does not have the capacity to instruct a solicitor, then the Tribunal or Convenor may appoint a curator ad litem. The curator ad litem must then decide whether to oppose the application. Where a curator instructs a solicitor to act on behalf of the service user, then the solicitor's fees can be paid through Assistance by way of Representation ( ABWOR).

The named person can still make representations to the Tribunal when a curator is appointed.

38. What will happen on the day?

The panel at a Tribunal is allowed a degree of flexibility in deciding how best the hearing should be conducted, but the following may be taken as a reasonable description of what might typically occur.

When you (and the service user) arrive, the Tribunal Clerk should show you where the waiting room, hearing room and other facilities are situated. Later, the Convenor of the tribunal will explain the rules about the hearing, why it is taking place, who is there and what will happen.

During the course of the hearing, people involved in the service user's care and treatment will make their views known, and present information relevant to the case. The three members of the tribunal will read, listen to and discuss the information as it is presented.

39. When and how will I be given the Tribunal's decision?

The tribunal may reach a decision on the day of the hearing, and inform you as to their findings either verbally or in writing on the day of the hearing.

The administration will also send a formal copy of the decision reached by the Tribunal to you and the patient in writing shortly after the hearing. The tribunal will also let the other parties - and any relevant people identified by the panel - know about their decision. A copy of the decision will also be sent to the Mental Welfare Commission. If the case came to the tribunal through the Court system, a copy of the decision will also be sent to the Court.

If a final decision cannot be made on the day of the hearing, an interim order may be granted and a further hearing will be convened at a later date. An interim order can be made to ensure the service user receives the care and treatment they need until a final order is put in place.

40. What if I am not happy with their findings and want to appeal?

If the service user and/or yourself are unhappy with the Tribunal's decision, you may be able to appeal to the Sheriff Principal within 21 days and then to the Court of Session for a review of the decision. The tribunal will explain this when they give their decision.

An appeal can only be made on one or more of the following grounds:

• that the Tribunal's decision was based on an error of law;
• that there has been a procedural impropriety in the conduct of the hearing by the Tribunal on the application;
• that the Tribunal has acted unreasonably in the exercise of its discretion;
• that the Tribunal decision was not supported by the facts found to be established by the Tribunal.

If you or the service user do decide to appeal the decision you should consult a solicitor.