On 24 July the Tribunals Judiciary issued a new Practice Direction: Enforcement Procedure, Directions and Summonses. While the Practice Direction (PD) is new, its content is not. Providers should already be aware and working toward a timescale of three weeks to file written evidence once a mental health tribunal application is made.
The PD deals with the following issues:
The Responsible Authority’s duty to provide its written evidence within three weeks.
Of particular note is paragraph 9. That makes clear that RAs must ensure social circumstances reports are still completed on time, even when liaising with a locality team. The duty remains with the RA rather than being transferred to the external community team.
The Responsible Authority’s duty to cooperate with the tribunal and provide the full identity and secure contact details of its statement and report writers.
Paragraph 14 now requires Mental Health Act Administrators to provide an undertaking that they will ensure any correspondence/directions for a report writer is sent to them within one working day.
Paragraph 16 is clear that, if the Tribunal Service does not have sufficient cooperation from MHAA or other professionals, they will issue directions and summonses direct to the Chief Executive of the organisation.
Paragraph 19 acknowledges that an extension may at times be required. However, you must make an application setting out your grounds to request an extension, which will then be considered. Any extension must be complied with.
The Responsible Authority’s duty to arrange for the attendance of witnesses.
Paragraph 22 is a reminder to RAs that it is for them to identify the appropriate witnesses to attend, not the tribunal. While they may ask for certain witnesses, it is for the RA to demonstrate that the detention criteria continues to be met, so ensure you have arranged for the appropriate clinical staff to complete reports and attend the hearing.
The Legal Representative’s Duties.
Paragraph 25 places a duty on P’s solicitors to follow up with the RA directly, where statements have not yet been received. You may subsequently find you are being increasingly contacted by solicitors where reports are not completed on time.
What will the tribunal do to enforce compliance?
Paragraph 29 reminds parties for the ongoing need to cooperate and work together. It points out that it is the parties’ shared duty to avoid the upset and wastefulness of a panel convening - only then to be asked to adjourn because a report or witness is missing.
The MH5 direction to a named person to immediately provide written evidence.
Paragraph 33 is clear that an MH5 will only be sent to a named individual where a report has not been filed on time. You should not wait to receive such notice and should work to meet the three week timescale.
Failure to comply with a personal MH5 direction to give written evidence.
Paragraph 35 sets out the Tribunal’s ability to seek an explanation for failure to comply with a direction or, alternatively, refer the matter to the Upper Tribunal, who have “a wide range of powers to impose a punishment.”
A sternly worded final two paragraphs of the PD including the possibility of summonsing the Chief Executive or referring to the Upper Tribunal!
It is important that providers ensure that they comply with the three week timescale for provision of written evidence and, if delays are anticipated, early communication with the Tribunal Service is strongly encouraged.
If you would like any advice or assistance in relation to tribunals or wider mental health matters, please do not hesitate to contact myself or a member of the team.
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