Disposal without hearing (MHT)

A case may not be disposed of without a hearing (rule 35(1)), subject to the following exceptions:

Decisions under Part 5 of the Rules (‘Correcting, setting aside, reviewing and appealing Tribunal decisions’) (rule 35(2)).
A s68 reference, where the patient is currently on a CTO, can be disposed of without a hearing if the patient is 18 or over and either:
1. the patient states in writing he does not want to attend or be represented and the tribunal is satisfied he has the capacity to decide whether or not to make that decision (it is assumed this means the capacity to make the decision) or
2. the representative states in writing that the patient does not want to attend or be represented (rule 35(3)).
Striking out a case for want of jurisdiction under rule 8(3) (rule 35(4)).

Inpatient references

Tribunal rule 35 will be amended to allow mandatory references made under s68, s71(2) and s75(1) in relation to a patient who is not a community (CTO) patient to be decided without a hearing if: (a) he is legally represented; (b) the representative "has stated in writing that the patient does not wish to attend or be represented at a hearing of the reference"; (c) "the patient’s representative has discussed with the patient the contents of any reports and any other documents provided by the responsible clinician and any social supervisor in respect of the patient and is satisfied that the patient has the capacity to decide whether or not to make that decision"; and (d) "the Tribunal is satisfied that the patient has the capacity to make that decision". Benefits for patients are cited but clearly resources and finances are major motivations. See TPC, 'Reply to two Consultations on possible amendments to the HESC Rules regarding proposed changes to the way that the FTT decides cases referred pursuant to s68' (1/8/24).

Unlike CTO references, paper hearings in these cases will be conducted by a full panel of three (and the relevant composition statement will be amended to reflect this).

Urgent hearings during coronavirus pandemic

A new power in new rule 5A to dispose of proceedings without a hearing was inserted by Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 on 10/4/20. The power could be used if the matter was urgent, it was not reasonably practicable to hold a hearing (including a remote hearing) and it was in the interests of justice to do so.

Following some anecdotal evidence that it was already happening, the tribunal stated that its policy was: "If your client is not contesting continuing detention (or a community treatment order) then the case can be decided by a single judge on the papers, without the need for a hearing": Courts and Tribunals Judiciary, 'Frequently asked questions about hearing arrangements during the coronavirus pandemic - July 2020' (published August 2020). This power, intended for urgent matters, was added to the rules across many First-tier Tribunal chambers. It was a misuse of the power for the MHT to use it for its own administrative convenience to avoid hearings arising from uncontested references. See also: Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21) highlighted the need to obey the rule under a new heading "Disposal of proceedings on the papers" by stating "5. The tribunal shall observe the requirements of rule 5A and rule 35 in cases where an application is made for determination on the papers." (It is believed that the PD was not extended beyond 18/9/21.)

Senior President of Tribunals, 'Annual Report 2021' (22/9/21) states (at page 39):

The tribunal has dealt with a small number of cases on the written evidence by consent and without the attendance of witnesses. These are only granted when the patient is legally represented.

Presumably the idea was that the current legal representative would share the blame if the patient subsequently decides it was wrong not to have had an oral hearing.

The rule expired on the same day as s55(b) Coronavirus Act 2020 [check and add date].

Paper reference hearings for hospital-based patients. TPC, 'Reply to two Consultations on possible amendments to the HESC Rules regarding proposed changes to the way that the FTT decides cases referred pursuant to s68' (1/8/24) — Tribunal rule 35 will be amended to allow mandatory references made under s68, s71(2) and s75(1) in relation to a patient who is not a community (CTO) patient to be decided without a hearing if: (a) he is legally represented; (b) the representative "has stated in writing that the patient does not wish to attend or be represented at a hearing of the reference"; (c) "the patient’s representative has discussed with the patient the contents of any reports and any other documents provided by the responsible clinician and any social supervisor in respect of the patient and is satisfied that the patient has the capacity to decide whether or not to make that decision"; and (d) "the Tribunal is satisfied that the patient has the capacity to make that decision". The TPC must realise that they are weakening the statutory safeguards as, in addition to commenting that if patients seek discharge "they are unlikely to request a paper hearing, nor would they be advised to", the new procedure will not apply if either the patient's case has not previously been considered by the tribunal or the patient's case was last considered by the tribunal without a hearing. The TPC "does not view the proposed change as being made for financial reasons" but notes that paper hearings will "ensure the panel's time is used efficiently when cases come out at short notice or are adjourned on the day". From a Legal Aid perspective, "remuneration will be significantly reduced if there is no hearing, removing the attraction of a paper review" (same £450 for just agreeing to a paper hearing as for full tribunal preparation, additional £294 for tribunal advocacy).

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