Summary of Tribunal Rules
Set out below are links to the various Tribunal Rules and a brief summary of them.
The Tribunal which decides on the lawfulness of a patient's detention in England is the First-tier Tribunal (Health, Education and Social Tier Chamber) (Mental Health), commonly known as the Mental Health Tribunal. In Wales the Tribunal is the "Mental Health Review Tribunal in Wales". Appeals in both jurisdictions are heard in the English Upper Tribunal.
Applications are sent to the Tribunal office in Leicester, and can be sent by letter or email (email is to be preferred, in case the application gets lost). The application form is voluntary but helpful for the Tribunal clerks, and is available on the Tribunal website. The application can be signed by the patient or someone authorised to sign on his behalf.
Rules and Practice Directions
Each Tribunal has its own rules:
- Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008
- Mental Health Review Tribunal for Wales Rules 2008
- Tribunal Procedure (Upper Tribunal) Rules 2008
Also, several practice directions and notes have been issued:
- Practice Direction: Health Education and Social Care Chamber: Mental Health Cases — This is the first practice direction, and relates to the contents of reports required for mental health cases. It applies in England to cases started on or after 3/11/08. It supersedes the schedule to the old rules which contained similar requirements - one major change is that a nursing report is now required.
- Important notice: Operation of section 77(2) MHA 1983 - disregarding withdrawn applications — On 8/12/08 the Chamber President issued a notice explaining that, until the Mental Health Act 1983 is amended in 2009, a patient who withdraws an application to the English Tribunal cannot reapply within the same period of eligibility; instead, he must ask for the original application to be reinstated.
- Nursing Reports - Advice to Panels from Regional Tribunal Judges — Advice on whether the report author should give oral evidence, and on matters about which it is appropriate for nurses to give evidence. Issued 23/2/09.
- Practice Direction: Child, Vulnerable Adult and Sensitive Witnesses — This practice direction defines the three relevant categories of witnesses, then gives details of the circumstances under which they may give evidence, and the manner in which evidence is given. It applies both to the First-tier and Upper Tribunals, and is dated 30/10/08.
A complete list of Rules, Practice Directions and Guidance is available on the Tribunal Rules page.
Description of rules
Reports are required in the following areas: medical, social circumstances, and nursing. The Practice Direction on reports explains what content is required.
Rule 32 explains the time limits. In most cases, reports are required within 3 weeks of the Tribunal sending the notification of application.
This is governed by rule 6. When the reports do not arrive within the deadline, directions should be sought to direct that the reports be produced.
Non-disclosure of documents and information
This is governed by rule 14.
Requests to withdraw Tribunal applications are governed by Tribunal rule 17. The withdrawal request can be made "at any time before a hearing to consider the disposal of the proceedings" (a letter would suffice) or "orally at the hearing".
The rules about the Tribunal's consent vary:
- A patient's application cannot be withdrawn without the Tribunal's consent. If the request is made in writing before the hearing date it is almost invariably agreed.
- A discretionary reference by the SoS for Health (under s67) or the SoS for Justice (under 71(1)) can be withdrawn without the Tribunal's consent.
- A mandatory reference cannot be withdrawn. These are references by hospital mangers (under s68), by the SoS for Justice 3 years since the previous hearing (under s71(2)) or by SSJ after recall (under s75(1)).
The relevant rule here is rule 41. The Tribunal may give a decision orally, and invariably do. Subject to the rules on non-disclosure of documents/information, written reasons must be sent within 7 working days (3 working days for s2 hearings).