Remote hearings (MHT)

During the coronavirus pandemic Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (Coronavirus, 19/3/20) stated that all hearings should be held remotely where it is reasonably practicable and in accordance with the overriding objective. This PD was extended by Amended General Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal (Coronavirus, 14/9/20) and by Amended General Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (18/3/21) but is not believed to have been extended beyond 18/9/21.

Two cases concerning remote hearings are Re D [2020] MHLO 51 (FTT) and GL v Elysium Healthcare [2020] UKUT 308 (AAC).

In Re D [2020] MHLO 51 (FTT) (a non-binding First-tier Tribunal decision) the tribunal’s decision was set aside because it was not clear whether or not the patient had a reasonable opportunity to hear all the evidence that was given at the hearing: it was not possible to be sure that the patient had a fair hearing. The patient's microphone had been muted for much of the time after giving her evidence at the outset because she "would not stop talking", but this did not amount to exclusion under Tribunal rule 38.

In GL v Elysium Healthcare [2020] UKUT 308 (AAC) the tribunal refused a patient’s adjournment request and proceeded with a telephone hearing in his absence. The Upper Tribunal decided that it was wrong for the tribunal to have proceeded with the telephone hearing because:

The tribunal had, without investigation, assumed that the patient's flatmate (with whom he was self-isolating to avoid coronavirus) could not overhear.
The tribunal had improperly dealt with the patient's anxiety: either it had concluded, without investigation, that the anxiety was without foundation (when he had in fact previously been assaulted because other patients discovered his history), or it had believed the same anxiety would arise at a future hearing (when in fact it arose from the specific circumstances that day); the tribunal should have considered whether his anxiety was genuine and, if so, the impact on his ability to participate.
The tribunal had wrongly approached the adjournment request as if the patient had been concerned with the mode of hearing (i.e. telephone) rather than the fear of being overheard that day.

Patients were able to apply for a face-to-face hearing but routine face-to-face hearings began from 3 October 2022 (for non-s2 cases) and from 7 November 2022 (for s2 cases) under a pilot scheme set out in Sarah Johnston, 'The Road Map for the future of Mental Health hearings' (letter to MHLA, 5/7/22). This approach has continued beyond the pilot. The patient is asked to express a preference (“hearing by video”, “hearing at the hospital” or “no preference”; in the last case the default is 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 resumed, but national listing is available for video hearings to meet demand. During the pilot, legal representatives were 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 following statistics were given by the Deputy Chamber President at the MHLA Annual Conference on 15/11/24:

In November 2022, 25-30% of hearings were in person.
Since March 2023 the figure has been above 30%.
So far in 2024 the figure has been about 31%.
Pre-hearing examinations are largely remote.

Guidance

Guidance for telephone hearings from 23/3/20 was provided in Tribunals Judiciary, 'Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Mental Health jurisdiction' (Coronavirus, 19/3/20).
Guidance in relation to video hearings, which it was proposed would start to be listed from 13/4/20, was provided in Mental Health Tribunal, 'Video Conference Hearings' (6/4/20).
Guidance for patients can be found in Mental Health Tribunal, 'Help for users' (15/4/20) and Mental Health Tribunal, 'Important Information about your Mental Health Tribunal Hearing for CAMHS patients' (27/5/20).
Guidance for representatives can be found in Mental Health Tribunal, 'Video Hearing Guidance for Representatives in Mental Health Tribunals' (11/9/20).

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