Update: consultation on Mental Health Tribunal reforms

Changes to the way the First-tier Tribunal lists hearings in relation to applications by patients detained under section 2 Mental Health Act.

Since the start of the Tribunal Procedure Committee’s (TPC) consultation in February the country has entered a period of lockdown due to the pandemic – that could not have been foreseen when this consultation was launched.

Responses to this consultation closed in April and the TPC who is responsible for making Tribunal Procedure Rules for the First-tier Tribunal has now published its response.

As healthcare professionals will be aware, the TPC made emergency changes to the Tribunal Procedure Rules on a temporary basis by the Tribunal Procedure (Coronavirus) (Amendment) Rules 2020, to allow cases to be dealt with across all jurisdictions during the crisis. This included, by paragraph 2(5), the change to rule 37 of the Health, Education and Social Care Chamber Rules proposed in this consultation.

In this context, the TPC proposes to delay making a decision on a permanent change so that the effects of the temporary change can be monitored and the results assessed before it makes a final decision.

Proposals for change to rule 37

The consultation document explained that in 2018-2019, the Tribunal received nearly 11,000 section 2 applications (thus constituting around a third of the total number of applications received). With the Tribunal sitting at over 1,000 venues all over England this significantly limited the Tribunal’s ability to list these and other cases.

Currently rule 37 (pre-pandemic) provides that hearings must start within the seven days after the date on which the Tribunal received the application notice and that parties must be given at least three working days’ notice of the time and place. It is said that the combined effect of these two rules is to limit the number of possible days for listing a hearing in section 2 proceedings to one or two days.  While the Tribunal does manage to list approximately 70 percent of the cases within seven days – a number of cases are postposed due the unavailability of the parties or because the Tribunal does not have three panel members to sit.

It is therefore proposed to substitute for the seven day time-limit for the holding of a hearing a time-limit of 10 days.

Responses

The TPC received a total of 60 responses. 35 from National Health Service (NHS) providers, 15 from members of the legal profession, four from members of the public and three from Tribunal members.  It also received responses from two organisations, The Law Society and Mental Health Tribunal Members Association. They explain that the majority of responses were supportive.   See pages 8-13 for details.

Pause

The TPC say that this short extension to the time period should “considerably assist in ensuring certainty for patients and the witnesses, thereby avoiding the additional distress and inconvenience caused by cancelled hearings.”

We will keep readers updated with the TPC’s response "in due course”.

Jill Mason and Molly Sanghera

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