Mental Health Tribunal and coronavirus

This page summarises the changes made because of the coronavirus pandemic and lists the various relevant resources. If you have any further or updated information then please send it in.

Information

Pre-hearing medical examinations

Tribunal rule 34 states that a pre-hearing medical examination must take place "so far as practicable" in certain circumstances. The rule is still in force.

It was decided that it will not be "practicable" under rule 34 for any pre-hearing medical examinations to take place during the pandemic: Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20). The Practice Direction was to last for an initial period of six months (it was superseded by the Amended Pilot Practice Direction mentioned below). No mention was made of video or telephone conferencing, which makes it practicable to hold a full hearing. The reason given in Mental Health Tribunal, 'Help for users' (15/4/20) is that "people cannot meet together".

There was no mechanism stated in the Practice Direction for seeking a medical examination in individual cases. However, following a challenge to an initial decision made under this Practice Direction, the tribunal published a policy that "it is not practicable under rule 34 of the 2008 Rules for automatic prehearing examinations to take place, unless the Chamber President, Deputy Chamber President or an authorised salaried Judge direct that in the exceptional circumstances of a particular case it shall be practicable for such a pre-hearing examination to take place, having regard to the overriding objective and any health and safety concerns". This gave no reason for the assertion that PHEs in other circumstances are "not practicable" and no guidance on what was considered "exceptional". PHEs should be requested and taking place in the circumstances set out in rule 34, which is still in force, and which applies to all section 2 patients and other patients who make a request. See Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20). That policy is now reflected in Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 15/9/20).

A challenge to the policy was heard by a three-person Upper Tribunal panel on Monday 14/12/20. Other related appeals were stayed by the Upper Tribunal pending that hearing (for a time the First-tier Tribunal misinterpreted this to mean all PHE requests should be refused until then). In EB v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 362 (AAC) decided that circumstances are "exceptional" if, contrary to the deeming provision, a PHE is practicable, and gave some guidance on what is covered by practicability. In other words, "exceptional" merely refers to an exception to the deeming provision, and the new procedure adds nothing substantive to rule 34.

The position is set out in Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21), which applies until 18/9/21:

New wording in relation to "Pre-hearing examinations: practicability": "7. For the duration of this Pilot Practice Direction: (a) A face-to-face pre-hearing examination may only take place if the Chamber President, the Deputy Chamber President or an authorised salaried judge directs that a face-to-face pre-hearing examination is practicable; (b) A remote pre-hearing examination may take place if any judge or tribunal directs that a remote pre-hearing examination is practicable. 8. When deciding whether conducting a pre-hearing examination is practicable under paragraph 7, judicial office holders should consider the overriding objective, any health and safety risks, any technological constraints, and the resources available to the Mental Health jurisdiction, as well as any other matters that they consider to be relevant."
A new heading "Pre-hearing examinations: section 2 cases": "9. Rule 34 requires that a pre-hearing examination must be carried out in section 2 cases, if practicable, unless the tribunal is satisfied that the patient does not want such an examination. 10. In a section 2 case, the patient (or their representative on their behalf) should be asked to indicate to the tribunal whether they want a pre-hearing examination. If the patient wants a pre-hearing examination, a decision should be made as to its practicability in accordance with paragraphs 7 and 8."

In Mental Health Tribunal, 'Advice to representatives on the listing of Mental Health Tribunal hearings after 18 September 2021 and the return of PHEs' (Sarah Johnston, 9/9/21) it was explained that the PD above will not be extended. The tribunal will therefore return to obeying the rules on s2 PHEs (i.e. holding a PHE so far as practicable unless the Tribunal is satisfied that the patient does not want such an examination). From a practical perspective, s2, CTO and C/D hearings will be held in the morning with the PHE at 0900 in the CVP room; in other cases the PHE will before the hearing date via Microsft Teams where practicable.

Decisions by single judge

The original Pilot Practice Direction stated that, for an initial six-month period from 19/3/20, every decision, including those that dispose of proceedings, would be made by a judge alone, unless the Chamber President, Deputy Chamber President or authorised salaried judge appoint two or three people: Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20). Panels of one of two may seek the advice of one or more non-legal members to assist in decision-making, provided the advice is recorded and disclosed to the parties. Anecdotal evidence suggests that tribunal judges are reluctant to make use of this facility. It was still possible to argue for a two- or three-member panel.

For the purposes of the general Pilot Practice Direction, former Salaried Tribunal Judges are interpreted as falling within the definition of salaried judges: Pilot Practice Direction: The use of former Salaried Judges (26/3/20).

Hearings taking place on or after 1/6/20 will be heard by a three-member panel (this was stated at the Mental Health Jurisdictional Stakeholders Meeting on 6/5/20). Three-member panels for s2 cases will commence in May (email from MHLA to membership, 11/5/20).

An amended PPD stated that a judge alone may make any decision, as directed by the Chamber President or other approved judge: Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 15/9/20). This was extended until 18/9/21 by Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21), which is now believed to have lapsed.

Community patient hearings postponed

A decision was made on 26/3/20 to postpone the hearings for adult community patients whose case had not been listed for paper review and whose case was a result of the patient's application or a periodic mandatory reference: Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20). The reasons given state that it is "not feasible or practicable for a community patient under the government's 'stay at home' policy to attempt to participate in a hearing" and mention that deprivation of liberty cases are being prioritised. The postponement decision was stated to last until the expiry of the 19/3/20 Pilot Practice Direction, or earlier if the tribunal directs, and at that point patients or representatives are expected to contact the tribunal with an agreed date. The decision states that parties are at liberty to apply to vary the order and directions in exceptional cases.

On 6/5/20 it was decided to list all the postponed hearings because the tribunal had by then "achieved a level of administrative support to be able to list cases for community patients": Mental Health Tribunal, 'Order and directions for listing of community hearings' (6/5/20). The order and directions set out the duties on patients' representatives and responsible authorities in relation to reports, consideration of paper hearings, agreed hearing dates, and remote hearing practicalities. See also this earlier press release: Conroys Solicitors, 'Listing of community hearings' (press release, 6/5/20).

Paper hearings for CTO patients

The existing Tribunal rule 35 allows a CTO case to be determined without a hearing in certain circumstances. This has not changed.

The general Pilot Practice Direction (not the MH-specific one) states that decisions should usually be made without a hearing where the rules permit: Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20).

It appears that the tribunal will actively be suggesting paper hearings to CTO patients: Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20).

New rule for urgent hearings used for uncontested renewals

See Disposal without hearing (MHT).

Timeframe for s2 hearings

Tribunal rule 37 requires the tribunal to start s2 cases within 7 days after the date on which it receives the application notice. This was changed temporarily to 10 days by Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 on 10/4/20. The amended rules also allowed the tribunal to ignore the new deadline if it is "not reasonably practicable". These amendment rules expired on 25/9/22 when s55(b) Coronavirus Act 2020 expired.

The change to 10 days (though not the explicit ability to circumvent it) has been the subject matter of two consultations: see Tribunal Procedure Committee, 'Consultation on possible amendments to the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 on the timescale for listing Section 2 hearings' (from 11/2/20 to 7/4/20) and Tribunal Procedure Committee, 'Possible amendments to the Tribunal Procedure (FTT) (HESC) Rules 2008' (consultation about s2 listing, from 21/6/22 to 16/8/22).

Listing of cases

On 1/4/20 it was stated that section 2, conditional discharge recall, and CAMHS cases were the priority for listing, and that while other cases were not being listed it was expected that s3 and restricted cases should begin to be listed: Mental Health Tribunal, 'Further update on coronavirus situation' (1/4/20). The tribunal secretariat started to catch up over the summer months.

Remote hearings

See Remote hearings (MHT).

Announcement of tribunal decision

The initial guidance was that, in order to reduce risk to the clinical team, the decision will not be announced after the hearing in the patient's presence, but instead a short decision to be sent the same day: Mental Health Tribunal, 'Message to the Royal College of Psychiatrists' (Sarah Johnston and Joan Rutherford, 26/3/20). The secretariat sent an email on 1/4/20 stating that they had "asked our Judiciary to take note of a secure email address for those who should receive a copy of the decision".

The current guidance allows the tribunal to decide whether to announce the decision, and either provide a time for the oral decision, or email the decision to the representative and the MHAA: Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

Disclosure of medical records

Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives in all cases for the duration of the Pilot Practice Direction' (25/3/20) required responsible authorities to allow immediate access to patients' medical records upon receipt of the CNL1 form containing the representative's name and to email without delay any notes specified by the representative. The relevant Practice Direction was not extended beyond 18/9/21 so the medical records procedure was continued under Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives' (27/9/21), which applied "[w]here there are restrictions on the ability of legal representatives to visit patients without undue delay and risk to themselves and others in the ongoing coronavirus pandemic".

The current version, Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives and to Medical Members of the Tribunal' (17/11/21), applies "[t]o limit contact and reduce risk during the Covid pandemic" and contains an extra paragraph: "The RA shall send the clinical notes to the eJudiciary email address of the Medical Member of the Tribunal no later than 3 days before the Tribunal."

Interpreters and BSL

An email sent by the secretariat on 1/4/20 stated that "where an Interpreter is required they will be sent the dial in details through their Agency".

All cases with language interpreters or BSL signers will be allocated a full day's hearing: Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

Re-detained patients following Devon judgment

Devon case tribunal guidance. Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21) — If tribunal proceedings began in relation to an unlawful section (based on a remote assessment) but the patient now is on a new section and wishes the hearing to go ahead, the tribunal is likely to strike out the initial application/reference but facilitate the patient in making a new application. The guidance focusses on the patient making an application, rather than seeking a reference to preserve the right to make a later application (see Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) for the ability to seek an urgent reference in another context).

Return to face-to-face hearings

MHT returning to face-to-face hearings. Sarah Johnston, 'The Road Map for the future of Mental Health hearings' (letter to MHLA, 5/7/22) — Under a pilot scheme, from 3/10/22 (for non-s2 cases) and from 7/11/22 (for s2 cases) the patient will be asked to express a preference ("hearing by video", "hearing at the hospital" or "no preference"; in the last case the default will be video). A face-to-face hearing preference must be communicated at least 14 days (for non-s2 cases) or 72 hours (for s2 cases) before the hearing. The intention is to meet the patient's preference when possible (subject to panel availability, lockdowns etc); an urgent application should be made if the patient changes his mind. The responsible authority can also express a preference. Regional listing will resume, but national listing will be available for video hearings to meet demand. Legal representatives will be asked to complete a survey after each hearing to provide feedback on patient choice. The medical member can decide how to conduct the PHE unless this has been directed to be conducted in-person. The pilot scheme will be reviewed regularly (and may be affected by a changing coronavirus situation), prior to a final review in February 2023. Until the pilot commences, all patients continue to be able to apply for a face-to-face hearing. For an update, see Mental Health Tribunal, 'Update on face-to-face pilot' (27/9/22).
Return to face-to-face hearings. Mental Health Tribunal, 'Update on face-to-face pilot' (27/9/22) — Updated tribunal forms should be used between 3/10/22 and 6/11/22 inclusive: T110A (s2 applications), T110 (non-s2 applications), T111A (s2 references), T111 (non-s2 references), T116 (guardianship appeals), T128 (CTO attendance), T129 (PHE). The forms will be updated again from 7/11/22 when the pilot expands to include s2 cases.

Sources of information

Case law

See also: Drilldown: Coronavirus cases

Legislation

Coronavirus legislation. Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 — Rule 2 amends the MHT's rules: (1) new power in new rule 5A to dispose of proceedings without hearing if the matter is urgent, it is not reasonably practicable to hold a hearing (including a remote hearing) and it is in the interests of justice to do so. (2) section 2 hearings to start within 10 days rather than 7 days, with an explicit power to ignore this deadline if the tribunal considers it "not reasonably practicable". In force 10/4/20. These rules expired on the same day as section 55(b) of the Coronavirus Act 2020 (public participation in proceedings conducted by video or audio), which was 25/9/22. (3) A further change, relating to public/private hearings, is inserted into the part of the HESC rules which do not apply to mental health cases.

Practice Directions and related guidance

Mental health

Mental Health Tribunal coronavirus Practice Direction. Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20) — For the pilot period, initially six months: (1) every decision, including those that dispose of proceedings, will be made by a judge alone, unless the CP, DCP or authorised salaried judge appoints two or three people; (2) the tribunal will suggest that CTO reference hearings are dealt with on the papers under rule 35; (3) it will not be "practicable" under rule 34 for any pre-hearing medical examinations to take place during the pandemic (no mention is made of video or telephone conferencing); (4) panels of one of two may seek the advice of one or more non-legal members to assist in decision-making, provided the advice is recoded and disclosed to the parties. Superseded by Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20).
Mental Health Tribunal coronavirus Practice Direction. Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) — This extends Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 19/3/20) until 18/3/21, with two amendments: (1) instead of "a judge alone shall make every decision unless the Chamber President [etc] considers it to be inappropriate in a particular case..." the new wording is "the provisions of the Composition Statement that apply to mental health cases shall be amended to include that a judge alone may make any decision (including decisions that dispose of proceedings) as directed by the Chamber President, Deputy Chamber President or an authorised salaried Judge in accordance with Amended Pilot Practice Direction: Panel Composition In The First-Tier Tribunal And The Upper Tribunal."; (2) instead of "it will not be 'practicable' under rule 34 of the 2008 Rules for any PHE examinations to take place" the new wording is "it shall be deemed not practicable under rule 34 of the 2008 Rules for any pre-hearing examinations to take place, unless the Chamber President [etc] direct that in the exceptional circumstances of a particular case it shall be practicable for such a pre hearing examination to take place, having regard to the overriding objective and any health and safety concerns. ...". Superseded by: Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21)
Mental Health Tribunal coronavirus Practice Direction. Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21) — This extends Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 14/9/20) with amendments to 18/9/21. The non-trivial amendments are: (1) A new heading "Disposal of proceedings on the papers" 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." (maybe this relates to the misuse of that rule by the MHT in uncontested reference cases); (2) New wording in relation to "Pre-hearing examinations: practicability": "7. For the duration of this Pilot Practice Direction: (a) A face-to-face pre-hearing examination may only take place if the Chamber President, the Deputy Chamber President or an authorised salaried judge directs that a face-to-face pre-hearing examination is practicable; (b) A remote pre-hearing examination may take place if any judge or tribunal directs that a remote pre-hearing examination is practicable. 8. When deciding whether conducting a pre-hearing examination is practicable under paragraph 7, judicial office holders should consider the overriding objective, any health and safety risks, any technological constraints, and the resources available to the Mental Health jurisdiction, as well as any other matters that they consider to be relevant." (3) A new heading "Pre-hearing examinations: section 2 cases": "9. Rule 34 requires that a pre-hearing examination must be carried out in section 2 cases, if practicable, unless the tribunal is satisfied that the patient does not want such an examination. 10. In a section 2 case, the patient (or their representative on their behalf) should be asked to indicate to the tribunal whether they want a pre-hearing examination. If the patient wants a pre-hearing examination, a decision should be made as to its practicability in accordance with paragraphs 7 and 8." Superseded by: Mental Health Tribunal, 'Advice to representatives on the listing of Mental Health Tribunal hearings after 18 September 2021 and the return of PHEs' (Sarah Johnston, 9/9/21).
Pre-hearing examinations. Mental Health Tribunal, 'Advice to representatives on the listing of Mental Health Tribunal hearings after 18 September 2021 and the return of PHEs' (Sarah Johnston, 9/9/21) — (1) The tribunal will begin to obey the rules again after 18/9/21 when Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (18/3/21) expires: "PHE’s in section 2 cases will return unless the patient tells us that they do not want a PHE". (2) Section 2 and community cases (C/D and CTO) will be listed in the morning, with the PHE at 0900 in the CVP room; in other cases the PHE will before the hearing date via Microsoft Teams where practicable.

Composition of panels

Coronavirus tribunal composition (non-MH). Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) — This PD applies to all appeals and applications within the First-tier and Upper Tribunal, except in mental health cases. For the duration of the pilot period, initially six months: (1) a salaried tribunal judge may decide, having regard to urgency among other matters, may depart from the usual rules on panel composition; (2) in such cases, the tribunal may seek the advice of one or more non-legal members to assist with its decision-making, provided the advice is recorded and disclosed to the parties. Superseded by Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20).
Coronavirus tribunal composition (non-MH). Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20) — This Practice Direction states that it applies to all appeals and applications within the First-tier and Upper Tribunal, except in mental health cases; however, the appointment of single judges under Amended Pilot Practice Direction: Health, Education and Social Care Chamber of the First-Tier Tribunal (Mental Health) (Coronavirus, 15/9/20) is said to be made under this PD. It extends Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) until 18/3/21 with some amendments. Superseded by: Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (18/3/21).
Coronavirus tribunal composition (non-MH). Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (18/3/21) — This extends Amended Pilot Practice Direction: Panel Composition in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20) until 18/9/21, with the removal of paragraph 8 ("Involvement of Non-Legal Members not on a panel: If the composition arrangements for a case are altered from what they would have been under the Standard Composition Arrangements, the tribunal may seek the advice of one or more non-legal members to assist with its decision-making, provided the advice is recorded and disclosed to the parties.")

Contingency arrangements

Tribunal coronavirus Practice Direction. Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) — During the pilot period, initially six months: (1) decisions should usually be made without a hearing where the rules permit [MHT: rule 35 limits this to Part 5 and strike-out decisions, certain CTO referrals, and some urgent matters]; (2) in jurisdictions where a hearing is required unless the parties consent to a determination on the papers [MHT: certain CTO referral cases] Chamber Presidents may allow a paper "triage" scheme in which provisional decisions are provided in cases in which a successful outcome for the applicant/appellant is likely; (3) all hearings should be held remotely where it is reasonably practicable and in accordance with the overriding objective [MHT: rule 1 states that hearings may be "conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication"]; (4) where permitted, hearings will proceed in the absence of parties who have not made an adjournment/postponement application [MHT: a requirement of rule 39 is that the patient has decided not to attend or is unable to attend for reasons of ill health]; (5) tribunals will take into account the impact of the pandemic when considering applications for extension of time for compliance with directions or the postponement of hearings. [Notes in square brackets are not part of the PD itself.] Updated in June 2020 (not currently on MHLO) and superseded by Amended General Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20).
Tribunal coronavirus Practice Direction. Amended General Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20) — This extends Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20), with some amendments, until 18/3/21. Superseded by: Amended General Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (18/3/21).
Tribunal coronavirus Practice Direction. Amended General Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (18/3/21) — This extends Amended General Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20) until 18/9/21 with minor amendments. The amendments are: (a) additional words in paragraph 3 ("This Practice Direction applies to all appeals, applications and other proceedings..."); (b) paragraph 7A refers to "courtroom" instead of "hearing room"; (c) a date is removed from paragraph 10, which is not relevant to mental health anyway.

Other

Former STJs treated as current. Pilot Practice Direction: The use of former Salaried Judges (26/3/20) — Former Salaried Tribunal Judges are to be interpreted as falling within the definition of salaried judges for the purposes of the coronavirus "Contingency Arrangements" pilot PD.
MHT video hearing guidance. Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20) — This document contains information under the following headings: (1) Before the hearing; (2) Listing hearings; (3) PHEs [see comments]; (4) Uncontested References where patients do not want to attend a hearing [see comments]; (5) Connecting to a video hearing; (6) The hearing; (7) At the end of the hearing; (8) The written decision.

Orders and directions

Automatic disclosure of medical records. Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives in all cases for the duration of the Pilot Practice Direction' (25/3/20) — Owing to the fact that representatives cannot arrange for patients to sign consent forms, this direction requires the responsible authority: (1) to allow immediate access to the patient's medical and nursing notes upon receipt of the CNL1 form containing the representative's name; (2) to email without delay any notes specified by the representative; and (3) to highlight any information in the notes not to be disclosed to the patient (the representative must not disclose this information without further order of the tribunal). The relevant Practice Direction was not extended beyond 18/9/21. Superseded by: Mental Health Tribunal, 'Direction for disclosure of medical records to legal representatives' (27/9/21).
Hearing postponement for certain community patients. Mental Health Tribunal, 'Order and directions for all community patients who are subject to a CTO or conditional discharge and who have applied or been referred to the tribunal for the duration of the Pilot Practice Direction' (26/3/20) — (1) The hearings of certain community patients will be postponed, unless they have already been listed for paper review. (2) It applies to patients “over 18” (this is meant to mean 18 or over) presumably at the time of the application or reference. (3) The following will be postponed: (a) applications by CTO patients (s66(1)); (b) applications by conditionally-discharged (C/D) patients (s75(2)); (c) periodic mandatory references in the cases of CTO patients (s68(2) and s68(6)). (4) The following will not be postponed: (a) discretionary references for CTO patients (s67(1)); (b) discretionary references for C/D patients (s71(1)); (c) revocation references for CTO patients (s68(7)); (d) recall references for C/D patients (s75(1)). (5) The order purports to postpone periodic mandatory references for C/D patients (s71(2)) but these references are only made for a "restricted patient detained in a hospital". (6) The hearings will take place on the first convenient date after revocation of the Pilot Practice Direction, or earlier if the tribunal orders (the parties are to agree a new listing window after revocation and apply for a new date). (7) All parties are at liberty to apply to vary the order and directions in exceptional cases. (8) The reason given for the order is that (a) it is "not feasible or practicable for a community patient under the government's 'stay at home' policy to attempt to participate in a hearing"; (b) cases where the patient is deprived of his liberty are being prioritised for listing; (c) postponement is proportionate to the "extreme demands being placed on health, social care and justice services by the pandemic"; (d) the case will be relisted as soon as practicable "having regard to any temporary regulations or other priorities that may prevail during the coronavirus emergency".

Guidance for patients

MHT coronavirus guidance. Mental Health Tribunal, 'Update on coronavirus situation' (18/3/20) — The position set out in this guidance is that: (1) hearings will continue as planned; (2) hearings require all three panel members, but this may change as part of the contingency plan being prepared; (3) requests to give evidence via telephone should be sent to the mhtcorrespondence email address; (4) hearings are being arranged as telephone conferences when hospitals are in lock-down; (5) listing window extension requests should be submitted to mhtcasemanagementrequests, but extended windows may be part of the contingency plan; (6) the tribunal is pushing for greater provision for paper hearings; (7) pre-hearing medical examinations are continuing, subject to the circumstances of each case, but these could cease if all hearings become telephone reviews. Largely superseded by: Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20).
MHT coronavirus telecon procedure. Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20) — The following procedure will apply to hearings from Monday 23/3/20: (1) section 2 and conditional discharge recall hearings will be prioritised; (2) no pre-hearing examinations will take place; (3) new cases will be listed as a telephone conference before a single judge; (4) the judge can seek advice by telephone from that day's allocated medical or lay member, then repeat that advice in the telecon and allow submissions; (5) it is suggested that an unrepresented patient be allowed to speak to the judge without others in the room; (6) it is suggested that the decision is not announced. (See the document for full details.)
Guidance to psychiatrists about remote hearings. Mental Health Tribunal, 'Message to the Royal College of Psychiatrists' (Sarah Johnston and Joan Rutherford, 26/3/20) — (1) This guidance to psychiatrists includes the following: all evidence will be taken before a tribunal judge alone, using phone (BT MeetMe) or video; the doctor giving evidence will released after giving evidence except in all but exceptional cases; the patient will not be given the decision orally. (2) To help the tribunal, clinical teams should: (a) submit s2 reports the day before the hearing (to avoid delays); (b) advise the tribunal judge if the patient will be unable to stay in the room or should give evidence first; (c) tell the tribunal judge whether the patient can remain as a voluntary patient (which is no longer possible in many areas); (d) emphasise any limitations of the evidence (for instance if the patient has recently been moved between "clean" and "dirty" coronavirus wards); (e) focus on the statutory criteria; (f) suggest delayed discharge for follow-up to be arranged; (g) give evidence from a private area. (3) The tribunal are encouraging wing members to return to clinical work, and are looking at formats for shorter reports.
MHT update including listing. Mental Health Tribunal, 'Further update on coronavirus situation' (1/4/20) — (1) All hearings have been postponed for certain community patients (CTO and conditional discharge), unless they have already been listed for paper review, until the revocation of the coronavirus pilot PD, or earlier if the tribunal directs. (The original summary here wrongly said "all community patients" - apologies.) (2) Section 2, conditional discharge recall, and CAMHS cases are the priority for listing; other cases were not being listed, but s3 and restricted cases should now begin to be listed. (3) Representatives are requested not to call the tribunal unless absolutely necessary, and to seek directions for late reports.
MHT telephone hearing guidance. Mental Health Tribunal, 'First-tier Tribunal (Mental Health) update' (2/4/20) — Information in this update includes: (1) all face to face hearings will be changed to telephone hearings for the foreseeable future; (2) the telephone attendee form, including the patient's number, is required 6 days before the hearing (24 hours for s2); (3) at the hearing the tribunal judge will telephone the patient with an invitation to join the call.
Public/private hearings and access to recordings. Pilot Practice Direction: Video/Audio Hearings in the First-Tier Tribunal and the Upper Tribunal (2/4/20) — (1) This PD, which applied to the FTT and UT, stated that (paraphrased): (a) where it is not practicable to broadcast a remote hearing in a court or tribunal building, the tribunal may direct that the hearing will take place in private; (b) where a media representative is able to access proceedings remotely then the hearing is a public hearing; (c) any such private hearing must be recorded if practicable, and the tribunal may consent to any person accessing that recording. (2) This PD had no impact on normal MHT hearings (which are private by default anyway). Also, following the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 amendments (which were inserted into the part of the rules which do not apply to mental health cases) there is no need to refer to this PD: see Senior President of Tribunals, 'Judges' and Members' Administrative Instruction No 4' (14/4/20).
MHT video hearings. Mental Health Tribunal, 'Video Conference Hearings' (6/4/20) — From 13/4/20 all cases will be listed as video hearings using the Cloud Video Platform (CVP), instead of telephone hearings. Telephone hearings had taken longer and made communication more difficult, and it is hoped that video hearings will be an improvement.
Further coronavirus guidance. Senior President of Tribunals, 'Judges' and Members' Administrative Instruction No 4' (14/4/20) — This guidance refers to: (1) the Mental Health Tribunal, 'Help for users' (15/4/20) document; (2) the rule changes in Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 (paper hearings, s2 timeframes, and public/private hearings); (3) plans for further or intermittent lockdown, the relaxation of lockdown restrictions, and both the return of existing business and new business; (4) paper case files; (5) some other matters irrelevant to mental health.
MHT remote hearings. Mental Health Tribunal, 'Ensuring patients can access justice' (Sarah Johnston DCP, 22/5/20) — This article on the Judiciary website explains the adoption of remote hearing procedures by the MHT.

Guidance for others

MHT remote hearing CAMHS guidance. Mental Health Tribunal, 'Important Information about your Mental Health Tribunal Hearing for CAMHS patients' (27/5/20) — This document explains remote hearings in simple language.
MHT guidance for patients. Mental Health Tribunal, 'Help for users' (15/4/20) — This guidance explains that hearings will be heard via telephone/video, by a tribunal judge alone ("because we have less support because of the coronavirus"), there will be no medical examination (because "people cannot meet together"), and community hearings will not take place ("because of the difficulties we have in organising hearings here everyone can participate" - unless the patient or representative explains "why your case must go ahead"). Superseded by Mental Health Tribunal, 'Help for Users' (updated, 28/7/20).
Tribunal guidance for patients. HMCTS et al, 'Mental Health Virtual Tribunal: An Easy Read Guide' (22/7/20) — "This document will help explain what you can expect if you attend a virtual Mental Health Tribunal hearing."
MHT video hearing guidance. Mental Health Tribunal, 'Video Hearing Guidance for Participants in Mental Health Tribunals' (24/8/20) — This document contains the following headings: (1) To connect; (2) The hearing; (3) At the end of the hearing; (4) The written decision.
HMCTS, 'Frequently asked questions about hearing arrangements during the coronavirus pandemic' (July-August 2020) — No results