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The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005

Type Scottish-Statutory-Instrument

Publication 2005-10-06

Last updated 2020-11-30

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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Made: 6th October 2005

Laid before the Scottish Parliament: 21st October 2005

Coming into force: 14th November 2005

The Scottish Ministers, in exercise of the powers conferred by section 21(4) and 326 of, and paragraph 10 of schedule 2 to, the Mental Health (Care and Treatment) (Scotland) Act 2003 and after consultation with the Council on Tribunals and its Scottish Committee in accordance with section 8(1) and (3) of the Tribunals and Inquiries Act 1992 , hereby make the following Rules:

PART I — INTRODUCTION

Citation and commencement

1

These Rules may be cited as the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 and shall come into force on 14th November 2005.

Interpretation

2

(1) In these Rules—

“the Act” means the Mental Health (Care and Treatment) (Scotland) Act 2003;

“appellant” means a person who appeals to the Tribunal under or by virtue of any of the sections of the Act specified in Part III of these Rules;

“applicant” means a person who makes an application to the Tribunal under the Act;

“Clerk” means a member of staff of the Tribunal employed to carry out the administration of the Tribunal or to act as clerk at a hearing of the Tribunal;

“Convener” means the President or a person selected by the President from the panel mentioned in paragraph 1(1)(a) or 2 of schedule 2 to the Act;

“electronic communication” has the meaning given to it by section 15(1) of Electronic Communications Act 2000 and “electronic signature” has the same meaning as in section 7 of that Act;

“hearing” means a sitting of the Tribunal for the purpose of enabling the Tribunal to take a decision on any matter relating to the case before it;

“notice” means notice in writing;

“the overriding objective” means the overriding objective described in rule 4;

“party” means–the person who initiated the proceedings before the Tribunal except a person who initiated them by virtue of a provision giving a listed initiator authority to act;the patient to whom the proceedings relate;the named person of the patient to whom the proceedings relate;any person whose decision (which shall include any direction or order, determination or grant of a certificate, but does not include a decision by a court) is the subject of the proceedings before the Tribunal; ...any person added as a party under rule 48; ... the Scottish Ministers in any proceedings which relate to a relevant patient; ... the relevant Health Board in any proceedings under sections 264 to 271 of theAct;andthe patient’s responsible medical officer in any proceedings in relation to an application under section 164A of the Act;

“patient” means the patient to whom the proceedings relate;

“relevant person” means any party and any other person who sends a notice of response under Part II, IV or V of these Rules indicating a wish to make representations or to lead or produce evidence;

“President” means the President of the Tribunal;

“referee” means a person who makes a reference to the Tribunal under the Act;

“relevant Health Board” and “relevant patient” are to be interpreted in accordance with section 273 of the Act;

“respondent” means the person who made the decision which is the subject of appeal under or by virtue of Part III of these Rules;

“Tribunal” means the Mental Health Tribunal for Scotland and “tribunal” means a tribunal constituted under sub paragraph (1) of paragraph 7 of schedule 2 to the Act to discharge the functions of the Tribunal; and

“working day” means a day which is not–a Saturday;a Sunday; ora day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971 .

(1A) The “listed initiator requirement” is that the application or appeal is accompanied by—

(a) a written statement by an approved medical practitioner confirming that in the opinion of that practitioner the patient is incapable in relation to a decision as to whether to initiate an application or appeal; and

(b) a written statement from the person making the application or appeal stating—

(i) that the patient has attained the age of 16 years and has no named person;

(ii) which of the categories of person who may initiate the appeal or application by virtue of the provision giving a listed initiator authority to act the person falls within; and

(iii) that the patient has not made a written declaration which precludes the person from initiating the appeal or application by virtue of that provision.

(1B) A reference in these Rules to a provision giving a listed initiator authority to act is a reference to—

(a) section 257A of the Mental Health (Care and Treatment) (Scotland) Act 2003;

(b) regulation 8A of the Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008; and

(c) regulation 13A of the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005.

(2) Any reference in these Rules to a rule is a reference to a rule in these Rules, and in any rule a reference to a paragraph or sub paragraph is, unless otherwise expressly provided, a reference to a paragraph or sub paragraph in the rule.

(3) Where the time specified by these Rules for doing any act ends on a Saturday, Sunday or a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971 that act is done in time if it is done on the next day which is not a Saturday, Sunday or bank holiday.

Scope of the Rules

3

These Rules apply to the following proceedings:–

(a) applications to the Tribunal;

(b) references to the Tribunal;

(d) reviews by the Tribunal; and

(e) cases remitted to the Tribunal under section 324(5)(b)(ii) of the Act.

The overriding objective

4

The overriding objective of these Rules is to secure that proceedings before the Tribunal are handled as fairly, expeditiously and efficiently as possible.

PART II — APPLICATIONS TO THE TRIBUNAL

Short-term detention

Application for revocation of short term detention certificate or extension certificate under section 50 of the Act

5

(1) An application to the Tribunal for revocation of a short term detention certificate under section 50 of the Act shall be made in writing.

(2) The application shall state–

(a) the name and address of the applicant;

(b) the name and address of the patient;

(d) the name and address of the hospital where the patient is detained; and

(e) a brief statement of the reasons for the application.

(2A) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.

(3) The applicant shall sign the application.

(4) The Clerk shall send a copy of the application to the parties.

(5) Upon receipt of the application the Clerk shall fix a hearing as soon as possible.

(6) The Clerk shall send notice of the application to the following persons–

(a) the patient;

(b) the patient's named person;

(d) any welfare attorney of the patient;

(e) the approved medical practitioner who granted the short term certificate;

(f) the mental health officer who was consulted under section 44(3)(c) of the Act;

(g) if the patient has a responsible medical officer, the responsible medical officer;

(h) any curator ad litem appointed in respect of the patient by the Tribunal; and

(i) any other person appearing to the Tribunal to have an interest in the application.

(7) Notice under paragraph (6) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing evidence;

(d) that if they wish to make representations or lead or produce evidence, they must respond to the notice within the period specified in the notice.

(8) If a person mentioned in paragraph (6) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall within the period specified in the notice–

(a) send a notice of response to the Tribunal; and

(b) send to the Tribunal a copy of any documents the person intends to rely upon at the hearing.

(9) The Clerk shall send a copy of each notice of response and any documents received under paragraph (8) to each party.

(10) Where at the hearing on an application to which this rule applies the Tribunal does not decide the application, it shall fix a further hearing.

(11) The Tribunal may on fixing a further hearing under paragraph (10) do any of the following as it thinks fit:–

(a) it may give directions as to–

(i) any issues on which the Tribunal requires evidence;

(ii) the nature of the evidence which the Tribunal requires to decide those issues;

(iii) the way in which the evidence is to be led before the Tribunal;

(iv) the exclusion of any evidence which is irrelevant, unnecessary or improperly obtained;

(v) the dates by which any documents or other evidence upon which any relevant person is intending to rely shall be sent to the Tribunal;

(vi) the date by which a relevant person shall send any written representations on the case to the Tribunal; and

(vii) any other matter as is necessary to enable the Tribunal to decide the application as soon as possible;

(b) take any steps required by rule 53 to secure the needs of a person with communication difficulties;

(d) decide any request or interim application made by any relevant person in relation to the case before the Tribunal.

(12) Before fixing a further hearing and doing any of those things referred to in paragraph (11), the Tribunal shall afford the relevant persons who are present an opportunity to be heard.

Compulsory treatment orders

Application for compulsory treatment order under section 63 of the Act

6

(1) An application for a compulsory treatment order shall state the matters specified in section 63(2) of the Act.

(2) The Clerk shall send a copy of the application and any accompanying documents mentioned in section 63(3) of the Act to the patient and the patient's named person.

(3) The Clerk shall send a notice of the application to the following persons:–

(a) the patient;

(b) the patient's named person;

(d) any welfare attorney of the patient;

(e) the mental health officer;

(f) the medical practitioners who submitted the mental health reports which accompany the application;

(g) if the patient has a responsible medical officer, that officer;

(h) the patient's primary carer;

(i) any curator ad litem appointed in respect of the patient by the Tribunal; and

(j) any other person appearing to the Tribunal to have an interest in the application.

(4) Notice under paragraph (3) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that an application has been made by the mental health officer;

(d) of the date, time and place of the hearing; and

(e) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence,

in relation to the making of an order under sections 64 or 65 of the Act.

(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the notice under that paragraph or within such other period specified in that notice.

(6) The Clerk shall send a copy of each notice of response to each party.

Application for interim compulsory treatment order under section 65 of the Act

7

An application under section 65 of the Act for an interim compulsory treatment order may be made orally at a hearing of the Tribunal or in writing sent to the Tribunal.

Determination of application for compulsory treatment order where section 68 of the Act applies: special case

8

(1) This rule applies where an application is made under section 63 of the Act and section 68 of the Act applies.

(2) Before the expiry of the period of 5 days referred to in section 68(2)(a) of the Act, the Tribunal shall hold a hearing (“a first hearing”) in order to determine whether an interim compulsory order should be made and, if it determines it should not be made, to determine the application.

(3) Where the Tribunal–

(a) makes an interim compulsory treatment order that authorises the detention of the patient in hospital; and

(b) does not determine that a compulsory treatment order should not be made,

it shall fix a further hearing.

(4) The Tribunal may on fixing a further hearing under paragraph (3), do any of the following as it thinks fit:–

(a) it may give directions as to–

(i) any issues on which the Tribunal requires evidence;

(ii) the nature of the evidence which the Tribunal requires to decide those issues;

(iii) the way in which the evidence is to be led before the Tribunal; the exclusion of any evidence which is irrelevant, unnecessary or improperly obtained;

(iv) the dates by which any documents or other evidence upon which any relevant person is intending to rely shall be sent to the Tribunal;

(v) the date by which a relevant person shall send any written representations on the case to the Tribunal; and

(vi) any other matter as is necessary to enable the Tribunal to decide the application as soon as possible;

(b) take any steps required by rule 53 to secure the needs of a person with communication difficulties;

(d) decide any request or interim application made by any relevant person in relation to the case before the Tribunal.

(5) Before fixing a further hearing and doing any of those things referred to in paragraph (4), the Tribunal shall afford the relevant persons who are present an opportunity to be heard.

Application for extension and variation of compulsory treatment order under section 92 of the Act and variation of compulsory treatment order under section 95 of the Act

9

(1) An application for extension and variation of a compulsory treatment order under section 92 of the Act and an application for variation of a compulsory treatment order under section 95 of the Act shall state the matters mentioned in section 92(a) or, as the case may be, 95(a), of the Act.

(2) The Clerk shall send a copy of the application and any accompanying documents prescribed by virtue of section 92(b) or, as the case may be, section 95(b), of the Act to the patient and the patient's named person.

(3) The Clerk shall send notice of the application to–

(a) the patient;

(b) the patient's named person;

(d) any welfare attorney of the patient;

(e) the mental health officer;

(f) the patient's responsible medical officer;

(g) the patient's primary carer;

(h) any curator ad litem; and

(i) any other person appearing to the Tribunal to have an interest in the application.

(4) Notice under paragraph (3) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that the application has been made and the orders sought in the application;

(d) of the date, time and place of the hearing; and

(e) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence.

(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the notice under that paragraph or within such other period specified in that notice.

(6) The Clerk shall send a copy of each notice of response to each party.

Application by patient etc. under section 99 of the Act for revocation of determination extending compulsory treatment order and for revocation or variation of a compulsory treatment order under section 100 of the Act

10

(1) An application under section 99 or 100 of the Act shall be made in writing.

(2) The application shall state–

(a) the name and address of the applicant;

(b) the name and address of the patient;

(d) where the patient is detained, the name and address of the hospital where the patient is detained;

(e) where the patient is required to reside at a specified place, the address of that specified place; and

(f) a brief statement of the reasons for the application.

(2A) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.

(3) The applicant shall sign the application.

(4) The Clerk shall send a copy of the application to the patient's responsible medical officer.

(5) The Clerk shall send notice of the application to–

(a) the patient;

(b) the patient's named person;

(d) any welfare attorney of the patient;

(e) the mental health officer;

(f) the patient's responsible medical officer;

(g) the patient's primary carer;

(h) any curator ad litem; and

(i) any other person appearing to the Tribunal to have an interest in the application.

(6) Notice under paragraph (5) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that the application has been made;

(d) of the terms of the existing compulsory treatment order;

(e) of the date, time and place of the hearing; and

(f) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence.

(7) If a person mentioned in paragraph (5) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the notice or within such other period specified in the notice.

(8) The Clerk shall send a copy of each notice of response to each party.

Application by patient etc. under section 120 of the Act for revocation of certificates under sections 114(2) and 115(2) of the Act

11

(1) An application under section 120 to the Tribunal for revocation of a certificate under section 114(2) or 115(2) of the Act shall be made in writing.

(2) The application shall state–

(a) the name and address of the applicant;

(b) the name and address of the patient;

(d) where the patient is detained, the name and address of the hospital where the patient is detained;

(e) where the patient is required to reside at a specified place, the address of that specified place; and

(f) a brief statement of the reasons for the application.

(2A) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.

(3) The applicant shall sign the application.

(4) Upon receipt of the application the Clerk shall fix a hearing as soon as possible.

(5) The Clerk shall send a copy of the application together with notice of the application to the parties.

(6) Notice under paragraph (5) shall inform the parties–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application); and

(b) of the date, time and place of the hearing.

(7) If a party wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall within the period specified in the notice–

(a) send a notice of response to the Tribunal; and

(b) send to the Tribunal a copy of any document the person intends to rely upon at the hearing.

(8) The Clerk shall send a copy of any notice of response and any documents received under paragraph (7) to each party.

(9) Where at the hearing on an application to which this rule applies the Tribunal does not decide the application, it shall fix a further hearing.

(10) The Tribunal may on fixing a further hearing under paragraph (9) do any of the following as it thinks fit;–

(a) it may give directions as to–

(i) any issues on which the Tribunal requires evidence;

(ii) the nature of the evidence which the Tribunal requires to decide those issues;

(iii) the way in which the evidence is to be led before the Tribunal;

(iv) the exclusion of any evidence which is irrelevant, unnecessary or improperly obtained;

(v) the dates by which any documents or other evidence upon which any relevant person is intending to rely shall be sent to the Tribunal;

(vi) the date by which a relevant person shall send any written representations on the case to the Tribunal; and

(vii) any other matter as is necessary to enable the Tribunal to decide the application as soon as possible;

(b) take any steps required by rule 53 to secure the needs of a person with communication difficulties;

(d) decide any request or interim application made by any relevant person in relation to the case before the Tribunal.

(11) Before fixing a further hearing and doing any of those things referred to in paragraph (10), the Tribunal shall afford the relevant persons who are present an opportunity to be heard.

Compulsion orders

Application by responsible medical officer under sections 149, 158 and 161 of the Act

12

(1) An application by a patient's responsible medical officer to the Tribunal–

(a) for an extension of a compulsion order following first review under section 149 of the Act shall state the matters mentioned in section 149(a) of the Act;

(b) for extension and variation of a compulsion order under section 158 of the Act shall state the matters mentioned in section 158(a) of the Act; and

(c) for an order varying a compulsion order under section 161 of the Act shall state the matters mentioned in section 158(a) of the Act.

(2) The Clerk shall send a copy of the application and any accompanying documents prescribed in respect of each application by regulations under section 149(b), 158(b) or, as the case may be, 161(b) of the Act to the patient and the patient's named person.

(3) The Clerk shall send notice of the application to–

(a) the patient;

(b) the patient's named person;

(d) any welfare attorney of the patient;

(e) the mental health officer;

(f) the patient's responsible medical officer;

(g) the patient's primary carer;

(h) any curator ad litem appointed in respect of the patient by the Tribunal; and

(i) any other person appearing to the Tribunal to have an interest in the application.

(4) Notice under paragraph (3) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that the application has been made and the orders sought in the application;

(d) of the date, time and place of the hearing, if known;

(e) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence.

(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the notice or such other period specified in the notice.

(6) The Clerk shall send a copy of each notice of response to each party.

Application by patient etc. for revocation of determination extending compulsion order under section 163 of the Act, for revocation or variation of a compulsion order under section 164 of the Act , to end the disclosure period for a compulsion order under section 164A of the Act and under section 120 of the Act for revocation of a certificate under section 114(2) of the Act as applied with modifications by section 177 of the Act

13

(1) An application for revocation of a determination extending a compulsion order under section 163 of the Act , for revocation and variation of a compulsion order under section 164 of the Act or to end the disclosure period applicable to a compulsion order under section 164A of the Act shall be made in writing and shall state–

(a) the name and address of the applicant;

(b) the name and address of the patient;

(d) where the patient is detained, the name and address of the hospital where the patient is detained;

(e) where the patient is required to reside at a specified place, the address of that specified place; and

(f) a brief statement of the reasons for the application.

(2) The applicant shall sign the application.

(2A) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.

(3) The Clerk shall send notice of the application to–

(a) the patient;

(b) the patient's named person;

(d) any welfare attorney of the patient;

(e) the mental health officer;

(f) the patient's responsible medical officer;

(g) the patient's primary carer;

(h) any curator ad litem appointed in respect of the patient by the Tribunal; and

(i) any other person appearing to the Tribunal to have an interest in the application.

(4) Notice under paragraph (3) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that the application has been made and the orders sought in the application;

(d) of the date, time and place of the hearing;

(e) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence.

(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the notice under that paragraph or within such other period specified in that notice.

(6) The Clerk shall send a copy of each notice of response to each party.

(7) Rule 11 shall apply to an application under section 120, as applied by section 177, of the Act for revocation of a certificate under section 114(2) of the Act; the reference in paragraph (1) of that rule to section 120 shall be read as a reference to section 120 as modified by section 177 of the Act.

compulsion orders and restriction orders

Application under section 191 of the Act by the Scottish Ministers for an order under section 193 of the Act

14

(1) An application under section 191 of the Act by the Scottish Ministers for an order under section 193 of the Act shall state the matters mentioned in section 191(a) of the Act.

(2) The Clerk shall send a copy of the application and any accompanying documents prescribed by virtue of section 191(b) of the Act to the patient and the patient's named person.

(3) The Clerk shall send notice of the application to the following persons:–

(a) the patient;

(b) the patient's named person;

(d) any guardian of the patient;

(e) any welfare attorney of the patient;

(f) any curator ad litem appointed by the Tribunal in respect of the patient;

(g) the Scottish Ministers;

(h) the patient's responsible medical officer;

(i) the mental health officer; and

(j) and other person appearing to the Tribunal to have an interest.

(4) Notice under paragraph (3) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that the application has been made and the order, or orders, sought in the application;

(d) of the date, time and place of the hearing, if known;

(e) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence.

(5) If a person mentioned in paragraph (3) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the notice under that paragraph or within such other period specified in that notice.

(6) The Clerk shall send a copy of each notice of response to each party.

Application by patient etc. under section 192 of the Act for order under section 193 of the Act

15

(1) An application under section 192 of the Act for an order under section 193 of the Act shall be made in writing and shall state–

(a) the name and address of the applicant;

(b) the name and address of the patient;

(d) where the patient is detained, the name and address of the hospital where the patient is detained;

(e) where the patient is required to reside at a specified place, the address of that specified place;

(f) the name of the patient's responsible medical officer;

(g) the order sought; and

(h) a brief statement of the reasons for the application.

(2) The applicant shall sign the application.

(2A) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.

(3) The Clerk shall send a copy of the application to the patient's responsible medical officer and the Scottish Ministers.

(4) The Clerk shall send notice of the application to the following persons:–

(a) the patient;

(b) the patient's named person;

(d) any guardian of the patient;

(e) any welfare attorney of the patient;

(f) any curator ad litem appointed by the Tribunal in respect of the patient;

(g) the Scottish Ministers;

(h) the patient's responsible medical officer;

(i) the mental health officer; and

(j) any other person appearing to the Tribunal to have an interest.

(5) Notice under paragraph (4) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that the application has been made and the order sought in the application;

(d) of the date, time and place of the hearing;

(e) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence.

(6) If a person mentioned in paragraph (4) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the notice under that paragraph or within such other period specified in that notice.

(7) The Clerk shall send a copy of each notice of response to each party.

Hospital directions and transfer for treatment directions

Application by patient and named person for revocation of hospital direction or transfer for treatment direction under section 214(2) of the Act

16

(1) An application under section 214(2) of the Act shall be made in writing.

(2) The application shall state–

(a) the name and address of the applicant;

(b) the name and address of the patient;

(d) the name and address of the hospital where the patient is detained;

(e) the direction which the applicant seeks to revoke; and

(f) a brief statement of the reasons for the application.

(2A) Where an application is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.

(3) The applicant shall sign the application.

(4) The Clerk shall send a copy of the application to the patient's responsible medical practitioner and the Scottish Ministers.

(5) The Clerk shall send notice of the application to the following persons:–

(a) the patient;

(b) the patient's named person;

(d) any guardian of the patient;

(e) any welfare attorney of the patient;

(f) any curator ad litem appointed by the Tribunal in respect of the patient;

(g) the Scottish Ministers;

(h) the patient's responsible medical officer;

(i) the mental health officer; and

(j) any other person appearing to the Tribunal to have an interest.

(6) Notice under paragraph (5) shall inform the persons–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that the application has been made and the direction which it seeks to revoke;

(d) of the date, time and place of the hearing;

(e) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence.

(7) If a person mentioned in paragraph (5) wishes to make representations (whether orally or in writing) or to lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the notice or within such other period specified in that notice.

(8) The Clerk shall send a copy of each notice of response to each party.

Named person

Application by mental health officer under section 255, and patient etc. under section 256, of the Act for appointment of named person

17

(1) Subject to paragraph (5) of this rule, an application under section 255 or section 256 for appointment of a named person shall be made in writing.

(2) The Clerk shall send a copy of the application–

(a) if the application is made under section 255, to the patient, the patient's apparent named person, if applicable, and any person whom it is proposed in the application should be the patient's named person; or

(b) if the application is made under section 256, to the mental health officer, the patient, the patient's named person, if applicable, and any person whom it is proposed in the application should be the patient's named person,

together with notice of the case number of the application (which must from then on be referred to in all correspondence relating to the application).

(3) If a person mentioned in paragraph (2) wishes to make representations (whether orally or in writing) or lead or produce evidence, that person shall send a notice of response to the Tribunal within 14 days of receipt of the copy application under that paragraph or within such other period specified in a notice sent with the copy application.

(4) The Clerk shall send a copy of each notice of response to each party and any person whom it is proposed in the application should be the patient's named person.

(5) Where it considers it expedient to do so, the Tribunal may permit an application to which this rule applies to be made by oral request and, in that event, the Tribunal shall take such steps as are reasonably practical to inform the persons mentioned in paragraph (2) of the application and to allow them to be heard on the application.

Informal patients

Application to Tribunal under section 291 of the Act in relation to unlawful detention

18

(1) An application to the Tribunal under section 291 for an order requiring the managers of the hospital to cease to detain the patient shall be made in writing.

(2) The application shall state–

(a) the name and address of the applicant;

(b) the name and address of the patient;

(d) the name and address of the hospital where the patient is apparently detained; and

(e) a brief statement of the reasons for the application.

(3) The applicant shall sign the application.

(4) The Clerk shall send a copy of the application to the hospital managers and the patient.

(5) The Clerk shall notify the hospital managers–

(a) of the case number of the application (which must from then on be referred to in all correspondence relating to the application);

(b) that an application has been made;

(d) that they are being afforded the opportunity–

(i) of making representations at the hearing (whether orally or in writing); and

(ii) of leading, or producing, evidence.

(6) If the hospital managers wish to make representations (whether orally or in writing) or lead or produce evidence, they shall send a notice of response to the Tribunal as soon as reasonably practicable or within such other period specified in that notice.

(7) The Clerk shall send a copy of the notice of response to each party.

Notice of response under Part II

19

A notice of response by any of the persons who are given notice under this Part shall be made in writing and shall state–

(a) the name and address of the person;

(b) the case reference number;

(d) whether the person wishes to lead, or produce, evidence.

Withdrawal of application

20

(1) Where an application is made to the Tribunal under section 50, 63, 99, 100, 120, 163, 164, 164A, 192 or 214 of the Act, an applicant may withdraw that application–

(a) at any time before the hearing of the application by sending to the Clerk a notice signed by the applicant; or

(b) at the hearing on the application.

(2) On receipt of any such notice, the Clerk shall send a copy to the relevant persons.

(3) Where an applicant gives notice under paragraph (1), the Tribunal may terminate the proceedings without making any order.

Amendment of application or notice of response

21

(1) A relevant person may, at any time before notification of the date of the hearing of the application, amend the application or the notice of response by sending notice of any amendment to the Clerk.

(2) A relevant person may amend the application or the notice of response with the permission of the Tribunal at any time after receiving notification of the date of the hearing or, with the permission of the Convener, at the hearing itself.

(3) On receipt of any amendment, the Clerk shall send a copy to the parties.

PART III — APPEALS TO THE TRIBUNAL

Scope of this Part

22

This Part applies to appeals to the Tribunal under, or by virtue of, the following sections of the Act:–

(a) 125(2) (appeal where patient subject to compulsory treatment order against transfer to hospital other than state hospital);

(b) 126(2) (appeal where patient subject to compulsory treatment order against transfer to state hospital);

(c) 178 (appeal where patient subject to compulsion order against transfers to state hospital or hospital other than state hospital);

(d) 201(1) (appeal against variations of conditions imposed on conditional discharge);

(e) 204(1) (appeal against recall from conditional discharge);

(f) 219(2) (appeal against transfer to hospital other than state hospital);

(g) 220(2) (appeal against transfer to state hospital); and

(h) 290(1) (appeal by patient under regulations against proposed removal from Scotland).

Initiating appeals to the Tribunal

23

(1) An appeal to the Tribunal shall be made in writing and shall state–

(a) the name and address of the appellant;

(b) the name and address of the patient;

(d) where the patient is detained, the name and address of the hospital where the patient is detained;

(e) where the patient is required to reside at a specified place, the address of that specified place;

(f) the matter which is being appealed;

(g) a brief statement setting out the reasons for the appeal.

(2) The appellant shall sign the appeal.

(2A) Where an appeal is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement must be complied with.

Notice of the appeal

24

(1) The Clerk shall send a copy of the appeal to–

(a) the patient;

(b) the patient's named person; and

(2) The Clerk shall send a notice of the appeal to the respondent.

(3) The notice shall inform the respondent–

(a) of the case number of the appeal (which must from then on be referred to in all correspondence relating to the appeal);

(b) of the date, time and place of the hearing; and

(c) that if the respondent wishes to make representations or lead or produce evidence, the respondent should send a notice of response to the Tribunal within the period specified in the notice.

Notice of response under Part III

25

(1) If the respondent wishes to make representations (whether orally or in writing) or lead or produce evidence, the respondent shall send a notice of response to the Tribunal within 21 days of receipt of the notice by the respondent under rule 24 or within such other period specified in that notice.

(2) The notice of response shall state–

(a) the name and address of the respondent;

(b) the case reference number;

(d) whether the respondent wishes to lead, or produce, evidence;

(e) whether the respondent intends to oppose the appeal and the basis of the opposition.

(3) The Clerk shall send a copy of the notice of response to parties.

Withdrawal of appeal

26

(1) An appellant may withdraw their appeal–

(a) at any time before the hearing of the appeal by sending to the Clerk a notice signed by the appellant; or

(b) at the hearing of the appeal.

(2) On receipt of any such notice, the Clerk shall send a copy to the respondent.

(3) No further appeal may be brought by the appellant in relation to the decision which was the subject of the appeal withdrawn.

Withdrawal of opposition

27

(1) The respondent may withdraw their opposition to the appeal–

(a) at any time before the hearing of the appeal by sending to the Clerk a notice signed by the respondent; or

(b) at the hearing on the appeal.

(2) On receipt of any such notice, the Clerk shall send a copy to the appellant.

Amendment of appeal or notice of response

28

(1) A party may, at any time before notification of the date of the hearing of the appeal, amend the appeal or the notice of response by sending a notice of any amendment to the Clerk.

(2) A party may amend the appeal or the notice of response with the permission of the Tribunal at any time after receiving notification of the date of the hearing or with the permission of the Convener at the hearing itself.

(3) On receipt of any amendment, the Clerk shall send a copy to any other party.

PART IV — REFERENCES TO THE TRIBUNAL

Scope of this Part

29

This Part applies to references to the Tribunal under the following sections of the Act–

(a) 96(3) (reference on recorded matters by responsible medical officer);

(b) 98(2) (reference by Commission where patient subject to compulsory treatment order);

(d) 185(1) (reference by Scottish Ministers where patient subject to compulsion order and restriction order);

(e) 187(2) (reference by Scottish Ministers required by Commission where patient subject to a compulsion order and a restriction order);

(f) 189(2) (reference by Scottish Ministers where no reference made for two years and patient subject to compulsion order and a restriction order);

(g) 210(3) (reference by Scottish Ministers following report by responsible medical officer);

(h) 211(2) (reference by Scottish Ministers required by Commission where patient subject to a hospital direction or transfer for treatment direction);

(i) 213(2)(reference by Scottish Ministers where no reference has been made for two years where patient subject to a hospital direction or a transfer for treatment direction); and

(j) 290(1) (reference by Commission under regulations against proposed removal of a patient from Scotland).

Notice of reference

30

(1) The Clerk shall send notice of the reference–

(a) under section 96(3), 98(2), 162(2) or under regulations under section 290(1) of the Act, as the case may be, to–

(i) the patient;

(ii) the patient's named person;

(iii) any guardian of the patient;

(iv) any welfare attorney of the patient;

(v) the mental health officer;

(vi) the patient's responsible medical officer;

(vii) the patient's primary carer;

(viii) any curator ad litem appointed in respect of the patient by the Tribunal; and

(ix) any other person appearing to the Tribunal to have an interest in the reference.

(b) under section 185(1), 187(2),189(2), 210(3), 211(2) or 213(2) of the Act, as the case may be, to–

(i) the patient;

(ii) the patient's named person;

(iii) the patient's primary carer;

(iv) any guardian of the patient;

(v) any welfare attorney of the patient;

(vi) any curator ad litem appointed by the Tribunal in respect of the patient;

(vii) the Scottish Ministers;

(viii) the patient's responsible medical officer;

(ix) the mental health officer; and

(x) any other person appearing to the Tribunal to have an interest.

(2) The notice shall inform the persons–

(a) of the case number of the reference (which must from then on be referred to in all correspondence relating to the reference);

(b) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing evidence; and

Notice of response

31

(1) If any person mentioned in rule 30 wishes to make representations (whether orally or in writing) or lead or produce evidence, that person shall send a notice of response to the Tribunal within 21 days of receipt of the notice under that rule or within such other period specified in that notice.

(2) The notice of response shall state–

(a) the name and address of the person making the response;

(b) the case reference number;

(d) whether the person wishes to lead, or produce, evidence; and

(e) a statement of the facts and contentions on which the person intends to rely.

(3) The Clerk shall send a copy of each notice of response to each party.

Withdrawal of notice of response

32

(1) A person who has sent a notice of response under rule 31 may withdraw the notice of response–

(a) at any time before the hearing by sending to the Clerk a notice signed by the person; or

(b) at the hearing.

(2) On receipt of any such notice, the Clerk shall send a copy of that notice to each party.

Amendment of reference or notice of response

33

(1) A referee or a person who has sent a notice of response under rule 31, as the case may be, may at any time before notification of the date of the hearing, amend the reference or notice of response by sending notice of any amendment to the Clerk.

(2) A referee or such a person may amend the reference or notice of response with the permission of the Tribunal at any time after receiving notification of the date of the hearing or with the permission of the Convener at the hearing itself.

(3) On receipt of any amendment, the Clerk shall send a copy to each party.

PART V — REVIEWS

Scope of this Part

34

This Part applies to reviews by the Tribunal under section 101(2) (review of determination extending compulsory treatment order under section 86 of the Act) and 165(2) (review of determination by responsible medical officer extending compulsion order under section 152 of the Act) of the Act.

Notice of review

35

(1) Where the Tribunal intend to review a determination under section 101(2) or 165(2) of the Act, the Clerk shall send notice of review to the following persons:–

(a) the patient;

(b) the patient's named person;

(d) any welfare attorney of the patient;

(e) the mental health officer;

(f) the patient's responsible medical officer;

(g) the patient's primary carer;

(h) any curator ad litem appointed in respect of the patient by the Tribunal; and

(i) any other person appearing to the Tribunal to have an interest in the determination.

(2) The notice shall inform the persons–

(a) of the case number of the review (which must from then on be referred to in all correspondence relating to the review);

(b) that a review is to be made by the Tribunal and of the reason for the review;

(d) that they are being afforded the opportunity–

(i) of making representations (whether orally or in writing); and

(ii) of leading, or producing, evidence.

Notice of response

36

(1) If any person mentioned in rule 35(1) wishes to make representations (whether orally or in writing) or lead or produce evidence, that person shall send a notice of response to the Tribunal within 21 days of receipt of the notice under that rule or within such other period specified in that notice.

(2) The notice of response shall state–

(a) the name and address of the person making the response;

(b) the case reference number;

(d) whether the person wishes to lead, or produce, evidence;

(e) a statement of the facts and contentions on which the person intends to rely.

(3) The Clerk shall send a copy of each notice of response to each party.

Withdrawal of notice of response

37

(1) A person who has sent a notice of response under rule 36 may withdraw their notice of response–

(a) at any time before the hearing by sending to the Clerk a notice signed by the person; or

(b) at the hearing.

(2) On receipt of any such notice, the Clerk shall send a copy to each party.

Amendment of notice of response

38

(1) A person who has sent a notice of response under rule 36 may, at any time before notification of the date of the hearing, amend the notice of response by sending notice of any amendment to the Clerk.

(2) Such a person may amend the notice of response with the permission of the Tribunal at any time after receiving notification of the date of the hearing or with the permission of the Convener at the hearing itself.

(3) On receipt of any amendment, the Clerk shall send a copy to each party.

PART VI — CASES REMITTED TO THE TRIBUNAL

Scope of this Part

39

This Part applies to cases remitted to the Tribunal by the court under section 324(5)(b)(ii) of the Act.

Application of these Rules

40

(1) Subject to any directions made by the court under section 324(6) of the Act and by the Tribunal under paragraph (2), these Rules shall apply to cases remitted to the Tribunal as they do to cases before the Tribunal.

(2) After the case is remitted, the Tribunal shall consider and determine which of these Rules shall apply to that case and issue such directions as it thinks fit.

PART VII — GENERAL RULES

Scope of this Part

41

(1) This Part applies generally to cases before the Tribunal.

(2) The cases referred to in paragraph (1) include an application, reference, appeal or review before the Tribunal, and to any case referred to in Part VI, as the Tribunal may determine.

Disqualification

42

(1) A person shall be disqualified from serving as a member of a tribunal in any case if that person–

(a) is employed by or contracted to provide services in or to the hospital or independent health care service in which the patient is or may be detained;

(b) is directly involved in providing medical treatment, community care services, relevant services or any other treatment, care or service to that patient; or

(2) For the purposes of paragraph (1)(a), unless a person works wholly or mainly in a hospital or independent health care service, that person shall not be regarded as being employed by or contracted to provide services in or to that hospital or independent health care service.

Interim or preliminary matters

43

(1) The Tribunal may, either on the written request of a relevant person or on its own initiative, consider and determine any interim or preliminary matter in relation to the case including any matter for which specific provision is made in this Part.

(2) Any matter referred to in paragraph (1) may be considered by the Convener alone or with such other members as the Tribunal may direct

(3) Before determining such a matter, the Tribunal or the Convener, as the case may be, may–

(a) send notice to any of the relevant persons inviting them to make written representations within such period as may be specified; or

(b) summon any of the relevant persons to appear before the Tribunal or Convener for a preliminary hearing and may give any necessary directions relating to their appearance.

Misconceived case

44

(1) A case before the Tribunal is misconceived if it is–

(a) outwith the jurisdiction of the Tribunal;

(b) made otherwise than in accordance with these Rules and has no reasonable prospect of success; or

(2) Where a case appears to the Clerk to be misconceived, the Clerk shall refer the case to a Convener.

(3) The Convener may decide whether the case is misconceived either alone or with such other members as the Tribunal may direct.

(4) Before dismissing a case as misconceived, the Convener may–

(a) send notice of the proposed dismissal to the relevant persons inviting them to make written representations within 28 days or such other period as may be specified by the Convener;

(b) afford the relevant persons an opportunity to be heard.

(5) The Convener may where appropriate, on dismissing a misconceived application refer the matter to the Commission.

(6) Rule 72 shall apply to a decision made under this rule.

Lodging of documents etc.

45

(1) Except as otherwise provided in these Rules or as specified by the Tribunal in a particular case, a relevant person shall send to the Tribunal seven days prior to any hearing–

(a) a list of documents and the documents that the relevant person wishes to lead as evidence;

(b) a list of witnesses whom the relevant person wishes to call; and

(2) Where a relevant person seeks to rely upon documents not produced in accordance with paragraph (1), the Tribunal may allow the documents to be lodged late where good reason is given.

(3) In determining whether to allow documents to be lodged late, the Tribunal shall have regard to whether to do so is fair in all the circumstances.

Distribution and disclosure of documents

46

(1) Except as otherwise provided for in these Rules, the Clerk shall as soon as reasonably practicable send a copy of any document received in relation to the proceedings to the parties.

(2) At the request of any relevant person, or on its own initiative, the Tribunal or a Convener may determine whether a document should also be sent to any other person.

Withholding documents or reports from disclosure in exceptional circumstances

47

(1) This rule applies to documents or reports received by the Tribunal where the Convener or the Tribunal is concerned that disclosure of all or any part of the contents of a document or report–

(a) may cause serious harm to the patient or any other person such that it would be wrong to disclose it to the patient or another person; but

(b) that in all the circumstances it would nevertheless not be unfair if the document or report or that part of it is considered by the Tribunal.

(2) The Convener or the Tribunal may appoint a person having appropriate skills or experience to–

(a) assess whether disclosure of the document or report to a patient or another person may cause serious harm; and

(b) report to the Convener or the Tribunal, as the case may be, on the matter.

(3) The Tribunal shall pay to an expert appointed under paragraph (2) such an amount in respect of necessary expenses incurred in preparing and producing any report, as the President shall direct.

(4) If the Convener or the Tribunal is satisfied, taking into account the report of any expert appointed under paragraph (2), as to the matters specified in paragraph (1), the Convener or the Tribunal, as the case may be, shall determine whether the document, report, or any part of it, is not to be disclosed and may direct that–

(a) the document or report may be considered by the Tribunal; and

(b) all or any part of its contents must not be disclosed to such persons as specified by the Convener or the Tribunal.

(5) The Tribunal shall notify the representative of the patient or other person to whom the document, report or any part of it is not to be disclosed, that such a decision has been made, and the reasons for that decision.

(6) Where a decision is made under this rule not to disclose a document, report or any part of it to a patient and the patient does not have a representative to represent their interests, a curator ad litem may be appointed under rule 55(1).

(7) After rule 72(5) insert–

(5A) Paragraph 5B applies to decisions made by the Tribunal in relation to applications or references under sections 50(1), 63(1), 92, 95, 98(2), 99(1), 100(2), 120(2), 149, 158, 161, 162(2), 163(1), 164(2), 185(1), 187(2), 189(2), 191, 192(2), 210(3), 211(2), 213(2), 214(2), 255(4), (6) and (7), 256(1), 264(2), 267(2), 268(2), 271(2) and 291(2) of the Act but does not apply in relation to any such applications which are not granted by the Tribunal. (5B) Where a copy of a decision is sent to the Commission under paragraph (5) the Clerk shall at the same time send to the Commission a copy of:– (a) the application or reference (as the case may be); and (b) in the case of an application, any mental health report that is required under the Act to accompany that application.

Additional parties and relevant persons

48

(1) Any person who has an interest in the case may send to the Tribunal a written request for leave to enter the proceedings stating–

(a) the person's name and address;

(b) the nature of the person's interest and the person's reasons for the request.

(2) The Tribunal may refer the request to a Convener to decide or decide the matter itself at a hearing.

(3) On receipt of a request under paragraph (1), the Clerk shall send a copy to the parties inviting them to make written representations within such period as may be specified by the Convener.

(4) At the request of any party in writing within that period, the Tribunal may afford the parties an opportunity to be heard either by the Convener alone or with such other members as the Tribunal may direct.

(5) The Tribunal or the Convener, as the case may be, shall consider any representations made, and if satisfied that the person has an interest in the case, and that it is reasonable to do so, may grant the request and direct that the person shall be treated as a party or as a relevant person and the request treated as their notice of response.

(6) On granting a request under paragraph (5), the Tribunal or the Convener, as the case may be, shall consider whether any decision already taken in the case requires to be reconsidered in the light of the person's notice of response.

Directions

49

(1) Except as otherwise provide for in these Rules, the Tribunal may at any time, either on the request of a relevant person or on its own initiative, give such directions as the Tribunal considers necessary or desirable to further the overriding objective in the conduct of a case and may in particular–

(a) direct a relevant person to provide any further particulars or to produce any documents which may reasonably be required;

(b) direct that a relevant person shall supply a list of documents and a list of witnesses whom that relevant person wishes to call to give evidence at the hearing;

(c) give directions as to the dates by which any documents or other evidence on which any relevant person wishes to rely shall be sent to the Tribunal;

(d) give a direction as to the date by which a relevant person shall send any written representations on the case to the Tribunal;

(e) direct that the parties or the relevant persons should provide a statement of agreed facts;

(f) give directions restricting the reporting, recording, photography or filming of any hearing;

(g) give directions as to–

(i) any issues on which the Tribunal requires evidence;

(ii) the nature of the evidence which the Tribunal requires to decide those issues;

(iii) the way in which the evidence is to be led before the Tribunal; and

(iv) the exclusion of any evidence which is irrelevant, unnecessary or improperly obtained.

(2) Where a request is made by a relevant person for a direction under paragraph (1), it shall be made in writing specifying the direction sought and the basis for the request.

(3) On receipt of such a request, the Clerk shall intimate the request to the relevant persons inviting them to make written representations within 14 days or such other period as the Tribunal may specify.

(4) The requirement in the foregoing paragraph to intimate a request to the relevant persons does not require intimation to the person who made the request.

(5) Where a party objects to the request, the Tribunal shall consider the objection and, if the Tribunal considers it necessary in order to decide the request, may afford the relevant persons an opportunity to be heard either by the Convener alone or with such other members as the Tribunal may direct.

(6) The Tribunal shall, in deciding whether to make a direction, consider any representations made.

(7) A direction under this rule may, if appropriate, include a statement of the possible consequences of failure to comply mentioned in rule 51.

(8) A direction made without prior intimation to a relevant person whom it affects shall as soon as reasonably practicable be notified in writing to that relevant person by the Tribunal.

Varying or setting aside of directions

50

(1) Where a direction that affects a person is given by the Tribunal without prior intimation to that person, that person may request that the Tribunal to vary it or set it aside, but the Tribunal must not do so without first intimating the request to the relevant persons and considering any representations made by them.

(2) The requirement in paragraph (1) to intimate a request to the relevant persons does not require intimation to the person who made the request.

Failure to comply with directions

51

(1) If any direction given to a relevant person under rule 49 is not complied with by that relevant person, the Tribunal may, before or at the hearing, direct that relevant person concerned take no further part in proceedings.

(2) The Tribunal shall not exercise its powers under paragraph (1) unless it has given the relevant person concerned an opportunity to show cause why the Tribunal should not proceed to give such a direction.

Other case management powers

52

(1) Subject to the provisions of the Act and these Rules, the Tribunal may regulate its own procedure.

(2) The Tribunal may in any proceedings–

(a) on the request of any relevant person or on its own initiative, extend the time appointed by these Rules for doing any act even if the time appointed has expired if–

(i) it would not be reasonable to expect the relevant person concerned to comply or, as the case may be, to have complied with the time limit; or

(ii) not to extend the time limit would be contrary to the interests of the patient;

(b) require a relevant person (other than the patient) or a relevant person's representative or the patient's named person to attend a hearing; and

(c) hold a hearing and receive evidence by telephone, through video link or by using any other method of communication if the Tribunal is satisfied that this would be fair in all the circumstances.

(3) Except where a rule or other enactment provides otherwise, the Tribunal may exercise its powers on the request of any relevant person or on its own initiative.

(4) Where the Tribunal proposes to exercise a power on its own initiative–

(a) it may give any person likely to be affected an opportunity to make representations;

(b) where it does so it must specify the period within which and the manner in which any representations must be made; and

(5) Where there are two or more sets of proceedings pending before the Tribunal which relate to the patient, the Tribunal may, on the request of a relevant person or on its own initiative–

(a) suspend the whole or part of any proceedings or decision either generally or until a specified date or event;

(b) hear and determine the proceedings concurrently, and give any directions necessary to enable it to do so.

(6) The Tribunal may, on the request of a relevant person or on its own initiative, on cause shown, suspend the whole or part of any proceedings or decision either generally or until a specified date.

Assistance to persons with communication difficulties

53

(1) This rule applies where–

(a) a person taking part in proceedings before the Tribunal has difficulty in communicating or generally communicates in a language other than English; and

(b) assistance is not required to be given under section 261 of the Act.

(2) Where a person requires assistance to enable that person to take part in proceedings before the Tribunal, that person shall at the earliest opportunity notify the Tribunal of that requirement.

(3) Where a relevant person becomes aware that a person requires assistance to enable that person to take part in proceedings before the Tribunal, the relevant person shall at the earliest opportunity notify the Tribunal of that requirement.

(4) Where this rule applies, the Tribunal shall take all reasonable steps to secure that arrangements appropriate to the person's needs are made.

Representation

54

(1) A relevant person who initiates proceedings before the Tribunal or who wishes to take part in such proceedings shall as soon as practicable give notice to the Tribunal of the name and address of any representative appointed by the relevant person and if none has as yet been appointed, whether the relevant person intends to appoint a representative or to conduct the case without such assistance.

(2) If at any time a relevant person wishes to be represented by a person other than a representative whose details have been notified to the Tribunal, the relevant person shall notify the Tribunal of the name and address of that person.

(3) At any hearing a relevant person may conduct the relevant person's own case (with assistance from any person if the relevant person wishes) or may be represented by any person whether or not legally qualified.

(4) If the Tribunal is satisfied that there is a good reason, it may refuse to permit a particular person to assist or represent a relevant person at a hearing.

(5) References in these Rules (however expressed) to the sending of any notice or other documents to a relevant person shall be construed as references to the sending of any notice or other documents to the relevant person's representative.

Curator ad litem

55

(1) Where the circumstances in paragraph (2) apply, a curator ad litem may be appointed by the Tribunal or a Convener.

(2) Those circumstances are–

(a) that the patient does not have the capacity to instruct a solicitor to represent the patient's interests in proceedings before the Tribunal;

(aa) an application or appeal has been initiated by virtue of a provision giving a listed initiator authority to act;

(b) that where the Tribunal or a Convener has made a decision not to disclose a document or report or part of it to the patient under rule 47, and the patient does not have a representative to represent their interests; or

(c) that the patient has been excluded from any hearing or part of it under rule 68 or 69 and the patient does not have a representative to represent their interests.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) The Tribunal shall provide all necessary information to a curator ad litem appointed to enable the curator ad litem to represent the patient's interests in proceedings before the Tribunal.

Notices

56

(1) Where these Rules require notice of proceedings before the Tribunal to be served upon a person who initiated those proceedings, such a notice shall not require to be served, but in such a case a notice of hearing shall be sent intimating the date, time and place of the hearing and giving such directions as the Tribunal shall consider appropriate in the circumstances.

(2) Where a person has notified the Tribunal in writing that that person does not wish to receive any notices or documents from the Tribunal in relation to proceedings before it specified in the notification, these Rules do not require any such notices or documents to be sent to that person.

(3) Except where the relevant persons have already been notified of the date of the hearing under notice provided under Parts II to V of these Rules, the Clerk shall send to each relevant person, not less than 7 days before the date fixed (or such shorter period as the Tribunal or the Convener may decide is appropriate) notice of hearing intimating the date, time and place of the hearing and giving such directions as the Tribunal shall consider appropriate in the circumstances.

(4) The Clerk shall include with a notice of hearing, information and guidance in a form approved by the President, as to–

(a) the right of a relevant person to make representations in writing;

(b) the attendance at the hearing of the relevant persons and witnesses, including a statement explaining the consequences of non attendance;

(d) the right of representation or assistance by another person;

(e) the need to notify the Clerk if a relevant person or a witness requires assistance as referred to in rule 53;

(f) the right of the parties to receive a copy of a decision of the Tribunal;

(g) the availability of general procedural advice in relation to proceedings from the Office of the Mental Health Tribunal for Scotland; and

(h) the availability of other sources of advice.

Alteration of hearing

57

(1) The Tribunal may, on receipt of a written request from a relevant person, or on its own initiative, alter the date, time or place of any hearing and shall give the relevant persons as much notice as is reasonably practicable of any such alteration.

(2) The Tribunal shall not, without good cause, alter any date under paragraph (1) to a date before the date originally fixed.

Power to decide case without a hearing

58

(1) The Tribunal may decide the case without a hearing where the following conditions are met—

(a) the Tribunal considers that, having regard to the nature of the issues raised in the case, sufficient evidence is available to enable it to come to a decision without a hearing;

(b) to do so will not, in the view of the Tribunal, be contrary to the interests of the patient;

(c) the Tribunal has, as soon as reasonably practicable, given notice to those persons who require to be afforded the opportunity of making representations or of leading or producing evidence of its proposal to dispense with oral representations and oral evidence;

(d) the patient has not applied for oral representations or oral evidence to be heard;

(e) no other person notified under sub-paragraph (c) has, in the opinion of the Tribunal, shown cause why oral representations or oral evidence should be heard; and

(f) no application from a person who appears to the Tribunal to have an interest in the proceedings has, in the opinion of the Tribunal, shown cause why oral representations or oral evidence should be heard.

(2) The notice referred to in paragraph (1)(c) shall state—

(a) that the Tribunal proposes to invoke this rule;

(b) that an application from the patient for oral representations or oral evidence to be heard will be granted;

(c) that the Tribunal will consider applications for oral representations or oral evidence to be heard from those persons who require to be afforded the opportunity of making representations or of leading or producing evidence;

(d) the latest date by which such applications must be made to the Tribunal; and

(e) that the patient is entitled to have access to independent advocacy as provided under section 259 of the Act.

(3) Applications—

(a) from the patient must be in writing; and

(b) from other persons must be in writing and give reasons why oral representations or oral evidence should be heard.

(4) The Tribunal shall, as soon as reasonably practicable, notify those persons who require to be afforded the opportunity of making representations or of leading or producing evidence and any other person who has made an application under this rule as to whether there is to be a hearing or not.

Evidence

Production of documents etc.

59

(1) Subject to the provisions of the Act and paragraph (2) of this rule, the Tribunal may on the request of any relevant person or on its own initiative send a citation to any person requiring that person to attend and produce any document in the custody, or under the control of, such person which the Tribunal considers it necessary to examine.

(2) The citation must explain that–

(a) it is an offence under paragraph 12(3) of schedule 2 to the Act for a person who is cited to attend the Tribunal–

(i) to refuse or fail to attend; and

(ii) to alter, conceal or destroy or refuse to produce, a document which such person is required to produce for the purposes of the proceedings before the Tribunal;

(b) a person need not produce any document if, were it a document that might be produced in any court in Scotland, the person having that document could not be compelled to produce it in such proceedings;

(c) it is a defence under paragraph 12(5) of schedule 2 to the Act for a person charged with contravening paragraph 12(3) to show that the person has a reasonable excuse for such contravention.

(3) No person shall be required to attend and produce a document in compliance with a citation unless the necessary expenses of that person's attendance are paid or tendered to them by the relevant person who requested their attendance or by the Tribunal, as the President shall direct.

(4) A person receiving a citation under this rule may apply in writing to the Tribunal for the citation to be varied or set aside and the Convener may vary or set aside the citation as they see fit.

(5) The Clerk shall send a copy of the decision under paragraph (4) to the person making the application under that paragraph and the relevant persons.

(6) It shall be a condition of the production of any document under this rule that a relevant person must use the document provided only for the purposes of the proceedings.

(7) In giving effect to this rule, the Tribunal shall take into account–

(a) the need to protect any matter that relates to intimate personal or financial circumstances or was communicated or obtained in confidence; and

(b) any request for non disclosure made under rule rule 46A(1).

Evidence of witnesses – general rule

60

Evidence before the Tribunal may be given orally or by signed statement but the Tribunal may at any stage of the proceedings require the personal attendance of any witness to give oral evidence.

Attendance of witnesses

61

(1) Subject to the provisions of the Act, the Tribunal may on the written request of any relevant person or on its own initiative send a citation to a person requiring that that person attends as a witness.

(2) A request by a relevant person under paragraph (1) shall give the name and address of each person in respect of whom the request is made.

(3) The citation must explain that–

(a) it is an offence under paragraph 12 of schedule 2 to the Act to refuse or fail, without reasonable excuse, to comply with it;

(b) a person need not give evidence as a witness if the person could not be compelled to give that evidence in proceedings in any court in Scotland.

(4) No person shall be required to attend as a witness in compliance with a citation unless–

(a) that person has been given 5 working days' notice of the hearing or such other period of notice, which must be at least 48 hours' notice, as shall be specified in the citation; and

(b) the necessary expenses of that person's attendance are paid or tendered to them by the relevant person who requested their attendance or by the Tribunal, as the President shall direct.

Experts' reports

62

(1) The Tribunal may, if any issue arises in relation to any proceedings on which, in the opinion of the Tribunal, it would be desirable for the Tribunal to have the assistance of an expert, appoint a person having appropriate qualifications to inquire into and report on any matter.

(2) Subject to rule 47, the Tribunal shall supply the parties with a copy of any written report received under paragraph (1) in advance of the hearing.

(3) The Tribunal may direct that the expert shall attend the hearing and give oral evidence.

(4) The Tribunal shall pay to an expert appointed under this rule such an amount in respect of necessary expenses incurred in preparing and producing any written report, and for attendance at the hearing as the President shall direct.

(5) Subject to the following paragraphs, where any relevant person obtains in relation to an issue before the Tribunal a written report from a person having expertise in any subject relevant to that issue, that relevant person shall send a copy of the report to the Tribunal 7 days prior to the next hearing of the Tribunal or at such period prior to the next hearing of the Tribunal as specified by the Tribunal in a particular case.

(6) A relevant person may send a request to the Tribunal for permission not to send a report to the Tribunal under paragraph (5), giving reasons for the request and, pending consideration of that request, the copy report need not be produced

(7) The Tribunal may afford the relevant person making the request an opportunity to be heard either by the Convener alone or with such other members as the Tribunal may direct.

(8) The Tribunal shall, in deciding the request, consider any representations made, and may either–

(a) give permission to the relevant person not to send part or all of the report in question; or

(b) order that part or all of the report be sent to the Tribunal within such time as the Tribunal may specify.

The hearing

Procedure

63

(1) At the beginning of any hearing the Convener shall explain the manner and order of proceedings and the procedure which the Tribunal proposes to adopt.

(2) The Tribunal may, in accordance with the overriding objective, conduct the hearing–

(a) as informally as the circumstances of the case permit; and

(b) in the manner the Tribunal considers–

(i) to be just; and

(ii) most suitable to the clarification and determination of the matters before the Tribunal.

(3) The relevant persons shall be entitled to make representations and to lead or produce evidence.

(4) At any hearing the Tribunal may, if satisfied that it is just and reasonable to do so, permit a relevant person to rely on matters not stated in the application, reference, appeal, review, written representations or notice of response and to lead or produce any evidence not previously notified to the other relevant persons.

(5) Having considered the circumstances of the relevant persons and whether (and to what extent) they are represented, the Convener–

(a) may, in order to assist resolution of any disputed fact, put questions to the relevant persons and to witnesses or may allow another member of the Tribunal to put such questions; and

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