Tribunal Procedure (Amendment No. 2) Rules 2024

Tribunal rule 35 was amended from 27 December 2024 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 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.

See also

• 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).

Extract from Explanatory Note

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.

LEGISLATION DATABASE

Full text: Legislation.gov.uk

Type: UK Statutory Instrument🔍

Year: 2024🔍

Number: 1283

Subject: Tribunal legislation🔍

In force: 27/12/24

What links here:

• Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008
• 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)