Text:Tribunal rule 35

No disposal of proceedings without a hearing [Restrictions on disposal of proceedings without a hearing]

35.—(1) The Tribunal must not dispose of proceedings without a hearing. [(1) Subject to the following paragraphs, the Tribunal must hold a hearing before making a decision which disposes of proceedings.]

(2) This rule does not apply to a decision under Part 5.

[(3) The Tribunal may make a decision on a reference under section 68 of the Mental Health Act 1983 (duty of managers of hospitals to refer cases to tribunal) without a hearing if the patient is a community patient aged 18 or over and either—

(a) the patient has stated in writing that the patient does not wish to attend or be represented at a hearing of the reference and the Tribunal is satisfied that the patient has the capacity to decide whether or not to make that decision; or

(b) the patient’s representative has stated in writing that the patient does not wish to attend or be represented at a hearing of the reference.]

[(3) The Tribunal may make a decision on a reference under section 68 (duty of managers of hospitals to refer cases to tribunal), 71(2) (references by Secretary of State concerning restricted patients) or 75(1) (references concerning conditionally discharged restricted patients) of the Mental Health Act 1983,* as the case may be, without a hearing if the patient is aged 18 or over and—

(a) in the case of a patient who is a community patient, the patient or the patient’s representative has stated in writing that the patient does not wish to attend or be represented at a hearing of the reference, or

(b) in the case of a patient who is not a community patient and is legally represented, the patient’s representative has stated in writing that—

(i) the patient does not wish to attend or be represented at a hearing of the reference, and

(ii) 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

the Tribunal is satisfied that the patient has the capacity to make that decision.]

[(4) The Tribunal may dispose of proceedings without a hearing under rule 8(3) (striking out a party’s case).]

[(5) Paragraph (3) does not apply where—

(a) the patient’s case has not previously been considered by the Tribunal, or

(b) the patient’s case was last considered by the Tribunal without a hearing.]

Amendments

Notes

* The footnote to the 2024 amendment rules states: "1983 c. 20. Section 68 was amended by the Mental Health Act 2007 (c. 12), section 37 and by S.I. 2008/2833. Section 71(2) was amended by S.I. 2008/2833. Section 75(1) was amended by the Crime (Sentences) Act 1997 (c. 43), Schedule 4, paragraph 12(13) and by S.I. 2008/2833."

The explanatory note to the 2024 amendment rules states: "Rule 35(3) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (S.I. 2008/2699) (restrictions on disposal of proceedings without a hearing) provides an exception to the restriction on the Tribunal disposing of mental health cases without a hearing, where the patient is an adult community patient, who does not wish to attend or be represented at a hearing of their reference. Rule 4(2)(a) amends rule 35(3) to extend this exception so that it also applies to adult patients detained in hospital with capacity, whose cases have been referred under section 68, 71(2) or 75(1) of the Mental Health Act 1983 (c. 20) (“MHA”) (as the case may be) to the Tribunal for review. Rule 4(2)(b) inserts a new paragraph (5) to rule 35 to provide that the exception in paragraph (3) (as amended by these Rules) does not apply to those patients whose detention under the MHA has never been considered by the Tribunal or the Tribunal last considered their case without a hearing."

Last checked: 27/1/25