The Tribunal Procedure Committee (TPC) are consulting on proposals to change the way that the First-tier Tribunal operates in relation to mental health cases under the Mental Health Act 1983 (MHA).
The consultation seeks views on two key proposals
1. Abolition of pre-hearing medical examinations or PHEs
Current position: PHEs are dealt with in rule 34 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 which requires that, in cases where a patient is detained under section 2 of the MHA there must be a medical examination of the patient by the medically qualified member of the tribunal before the case is heard. That is unless the tribunal is satisfied that the patient does not want such an examination.
For all other patients detained under the MHA, a PHE is optional – the patient must positively request a PHE at the time of their appeal application.
Proposal: PHEs make little difference to the outcome of cases – despite being requested in 50 per cent of non- section 2 cases, they add little or nothing to the evidential basis on which tribunals make their decisions. The TPC suggests that the proportion of patients discharged varies little, irrespective of whether a PHE was carried out. It is also suggested that a PHE risks presenting a misleading picture of the patient’s condition where the patient is detained under section 2.
Equally, PHEs may assume too great a role in the assessment process and influence the tribunal to a “disproportionate degree”.
The value PHEs made to the tribunal process was considered in 2013 and, at that time, considered by the TPC as “desirable and valuable part of the tribunal process”. However, the TPC are keen to revisit some of the issues raised then in the context of the current proposal.
2. Tribunal decisions without a hearing
Current position: Rule 35 requires a hearing to take place unless, in the case of a patient aged 18 or over and subject to a Community Treatment Order whose case has been referred to the tribunal under section 68 of the Mental Health Act, the patient or their representative has specifically opted not to have a hearing.
Proposal: That the paper review procedure should be extended to most references to the tribunal by hospital managers or the Secretary of State. The default position would become, that decisions, in such cases, are taken without a hearing, unless one is requested by a patient or their representative or the tribunal directs an oral hearing.
Ways to respond to the consultation
Responses to the consultation will be considered by the TPC; you can view the consultation paper here and respond to the consultation here.
Five consultation questions
1. Do you agree that the requirement that the First-tier Tribunal must conduct a PHE in all section 2 cases, and others where one has been requested, should be removed?
2. If the requirement were removed, do you consider that the First-tier Tribunal should have some discretion as to whether to conduct a PHE if it considers it appropriate?
3. Do you agree with the proposal that, with references to the tribunal, other than the exceptions set out above, (as opposed to applications from patients), a decision on the papers alone should become the default position, as outlined in the proposal above?
4. Are there any classes of case in which you consider that the First-tier Tribunal should always conduct an oral hearing, irrespective of whether the parties have expressed a preference?
5. Do you have any other comments on the proposals made, or on the operation of the rules generally?
The deadline is 14 June 2018.