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

• (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;

• (c) the sending of documents;

• (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

• (b) shall, to the extent the Convener considers it necessary for the just conduct of the hearing, explain any legal terms or expressions which are used.

• (6) The Tribunal may require any witness to give evidence on oath or affirmation.

• (7) The Tribunal may exclude from the hearing any person who is to appear as a witness in the case until such time as they give evidence if it considers it is fair in all the circumstances to do so.

Absence of a member of the Tribunal

64

• (1) Except as provided for otherwise in these Rules, a tribunal shall not decide any question unless all members are present and, if any member is absent, the case shall be adjourned or referred to another tribunal.

• (2) If a member of a tribunal ceases to be a member of the Tribunal or is otherwise unable to act before that tribunal has commenced hearing the case, the President may allocate the hearing of that case to a differently constituted tribunal.

• (3) If, after the commencement of any hearing, a member other than the Convener is absent, the case may, with the consent of the parties, be heard by the other two members and, in that event, the tribunal shall be deemed to be properly constituted.

Adjournment of the hearing

65

• (1) The Tribunal may on the request of a relevant person or on its own initiative, adjourn a hearing in order that further information or evidence may be obtained or for such other purpose as it sees fit.

• (2) Where a relevant person requests an adjournment under paragraph (1), the Tribunal shall consider any representations made by any other relevant person before deciding whether or not the hearing will be adjourned.

• (3) When a hearing is adjourned under paragraph (1), the Tribunal may give directions under rule 49 regarding the future conduct of the case as it considers appropriate and may, in particular, require any relevant person to intimate to the Tribunal by a specified date any matter to be relied upon by that person at the further hearing.

• (4) The Tribunal shall notify the relevant persons of the date for the resumed hearing except that if the date, time and place of the resumed hearing are announced before the adjournment, no further notice shall be required.

Hearings in public or private

66

• (1) Subject to the provisions of this rule, hearings shall be held in private.

• (2) Where a patient applies in writing for a hearing to be held in public, the Tribunal may make an order that a hearing be held in public.

• (3) The Tribunal may refuse to make an order under paragraph (2) where any of the requirements of paragraph (4) is met.

• (4) The requirements are that a public hearing–

• (a) would fail to safeguard the welfare of the patient or any other person;

• (b) would not, in all the circumstances, allow the fair hearing of the case; or

• (c) would prejudice the interests of justice.

• (5) The Tribunal shall refuse to make an order under paragraph (2) only to the extent necessary to protect the interest which is being protected by the refusal and only in relation to those parts of a hearing in respect of which any of the requirements of paragraph (4) is satisfied.

• (6) The following persons shall be entitled to attend a hearing, even although it may be held in private–

• (a) the President;

• (b) any member of the Tribunal, or a member of staff of the Tribunal, with the agreement of the Convener;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) an interpreter or other person giving other necessary assistance to a person entitled to attend the hearing.

• (7) The Tribunal may exclude from any hearing or any part of a hearing, any person, other than a representative of the patient or a relevant person, where it is considering a document or report withheld from disclosure in accordance with rule 47, and in any case where the Tribunal decides to so exclude such a person, it shall inform the person excluded of its reasons and record those reasons in writing.

Publicity

67

• (1) Where the Tribunal has made an order under rule 66, the Tribunal may on the request of a relevant person or on its own initiative make an order that any publicity to be given to the hearing should be limited, where the President or the Convener considers it appropriate bearing in mind–

• (a) the need to safeguard the welfare of a patient or any other person;

• (b) the need to protect the private life of any person;

• (c) any representations on the matter which a relevant person has provided in writing; and

• (d) the effect of any direction under rule 49.

• (2) An order under paragraph (1) shall limit publicity only to the extent necessary to protect the interest which is being protected by the order.

• (3) An order under paragraph (1) may allow publicity that does not identify the parties.

Excluding persons from hearings in exceptional circumstances

68

• (1) Where the Convener or the Tribunal is satisfied that attendance of any person at the hearing or part of it may cause serious harm to the patient or any other person, the Convener or the Tribunal, as the case may be, may make a direction that such a person shall be excluded from the hearing or any part or it.

• (2) The Convener or the Tribunal, as the case may be, may appoint a person having appropriate skills or experience to–

• (a) assess whether such attendance by the patient or another person may cause serious harm; and

• (b) report 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) Where the Convener or the Tribunal is considering making a direction under this rule, the Clerk shall invite the relevant persons to make written representations both as to the necessity of the direction and as to the availability of alternative measures, within such period as may be specified by the Convener.

• (5) At the request of any relevant person in writing within that period, the Tribunal 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) If the patient is the person who may be the subject of a direction under this rule, and does not have legal representation, the Tribunal shall invite the patient to seek an adjournment of the Tribunal's consideration of the matter, in order to obtain legal representation and, if the patient does seek such an adjournment, shall grant it.

• (7) A direction under paragraph (1) shall exclude the patient or other person only to the extent strictly necessary to prevent the harm apprehended by attendance and may be made only after taking into account any report under paragraph (2) and any representations made under paragraph (4) or (5).

• (8) Where such a direction excluding the patient is made and the patient does not have a representative to represent their interests, a curator ad litem may be appointed under rule 55(1).

Exclusion of persons disrupting hearing

69

• (1) Without prejudice to any other powers the Tribunal may have, the Tribunal may exclude from any hearing, or part of it–

• (a) any person (including a relevant person or the relevant person's representative) whose conduct has disrupted, or is likely, in the opinion of the Tribunal, to disrupt the hearing;

• (b) any person whose presence is likely, in the opinion of the Tribunal, to make it difficult for any relevant person to make representations or present evidence necessary for the proper conduct of the hearing; or

• (c) any person whose conduct has otherwise interfered with the administration of justice or is likely to do so.

• (2) In deciding whether to exercise the power conferred by paragraph (1) the Tribunal shall have regard to–

• (a) the interests of the relevant persons; and

• (b) in the case of the exclusion of a relevant person or relevant person's representative, whether the relevant person will be adequately represented.

• (3) Before the Tribunal decides to exclude a relevant person, the Tribunal shall–

• (a) allow the relevant person's representative sufficient opportunity to consult the relevant person;

• (b) afford the relevant person concerned and any other relevant person as it thinks fit, an opportunity to be heard; and

• (c) consider the availability of alternative measures which may enable the relevant person concerned to continue to participate in proceedings.

• (4) Where the relevant person concerned is the patient, and that patient does not have a representative present to represent the patient's interests, the Tribunal may, before making a decision under paragraph (1), adjourn the hearing to allow–

• (a) the patient to obtain representation; or

• (b) a curator ad litem to be appointed under rule 55(1).

• (5) The Tribunal may make such alternative arrangements as may be necessary to enable a person excluded to continue to participate in the proceedings, including allowing the proceedings to continue through video-link or other method of communication.

• (6) Where the Tribunal decides to exclude a patient under this rule and the patient does not have a representative to represent their interests, a curator ad litem may be appointed under rule 55(1).

Failure of a relevant person to attend

70

• (1) If a relevant person fails to be present or represented at a hearing, the Tribunal may, if satisfied that the relevant person was duly notified of the hearing and that there is no good reason for such absence, hear and decide the proceedings in that relevant person's absence and may give such directions as the Tribunal thinks fit.

• (2) Before deciding any case in the absence of a relevant person, the Tribunal shall consider any representations in writing submitted by that relevant person in response to the notice of hearing.

• (3) Where the relevant person concerned is a party, the Tribunal shall afford that party an opportunity to be heard either by the Convener alone or with such other members as the Tribunal may direct to explain the absence and to advise whether the party wishes to proceed.

Inability to attend

71

• (1) If the Convener is satisfied that any relevant person is unable, through illness, age, incapacity or other sufficient cause to attend the hearing, the Convener may make such arrangements as may appear best suited in all the circumstances of the case, for deciding the case fairly, and in particular may arrange–

• (a) for the relevant person to provide a signed statement, or evidence in such form as the Tribunal thinks fit;

• (b) for taking the evidence of expert or other witnesses on behalf of the relevant person;

• (c) for enabling the relevant person to make representations on the evidence; and

• (d) for the case to be decided in the absence of the relevant person.

• (2) Arrangements under paragraph (1) may include arrangements to take evidence and hear representations by video-link.

Decision of the Tribunal

72

• (1) A decision of the Tribunal may be given at the end of the hearing or reserved.

• (2) The decision shall be signed by the Convener and dated.

• (3) The Tribunal shall, as soon as reasonably practicable, send notice of the decision to the parties , the patient’s mental health officer (if they are not a party to the proceedings), the patient’s responsible medical officer (if they are not a party to the proceedings) and such other relevant person as the Tribunal may direct.

• (4) Information in such form as the President may approve, shall be sent with the notice referred to in paragraph (3), explaining any right of appeal against the Tribunal's decision under sections 320 and 322 of the Act, including any time limits which may apply.

• (5) Where a decision has been made by the Tribunal, whether at a hearing or otherwise, the Clerk shall, within 21 days of the date on which the decision is signed by the Convener, send a copy of the decision to the Commission and where the case was remitted to the Tribunal by a court, to that court.

• (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), 164A(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.

• (6) Other than where a decision is made at the end of the hearing, a decision shall be treated as having been made on the date on which a copy of the document mentioned in sub-paragraph (7) is sent to the parties.

• (7) The Tribunal shall record the decision in a document which contains a full statement of the facts found by the Tribunal and the reasons for the decision.

• (8) Clerical mistakes or errors arising from an accidental slip or omission in the document referred to in paragraph (7), may at any time be corrected by the Convener by certificate in writing.

• (9) If a document is corrected by certificate under paragraph (8), or if a decision is altered in any way by order of an appellate court, the Clerk shall send a notice to each of the parties and to the Commission advising of that change.

• (10) Where this rule requires a document to be signed by the Convener, but the Convener is unable, by reason of death or incapacity to sign it, the document shall be signed by the other members of the tribunal, whom failing the President, who shall certify that the Convener is unable to sign.

Publication

73

• (1) The President must make such arrangements as the President considers appropriate for the publication of Tribunal decisions.

• (2) Decisions may be published electronically.

• (3) A decision may be published in an edited form, or subject to any deletions, where the Convener considers it appropriate bearing in mind–

• (a) the need to safeguard the welfare of a patient or any other person;

• (b) the need to protect the private life of any person;

• (c) any representations on the matter which any relevant person has provided in writing.

• (4) A decision of the Tribunal, shall be published in such a manner as to protect the anonymity of the patient.

Miscellaneous

Performance of the Tribunal's functions

74

The President may authorise any member of the staff of the Tribunal to exercise such administrative functions under these Rules as the President shall specify.

Relief from failure to comply with the Rules

75

• (1) Where before the Tribunal has decided a case, a relevant person has failed to comply with any provision of these Rules, which is shown to be due to mistake, oversight or other excusable cause, the Tribunal may–

• (a) relieve the relevant person from the consequences of that failure; and

• (b) give any direction as it thinks fit.

• (2) In particular, where it considers that any relevant person may have been prejudiced by such failure, the Tribunal may take any necessary steps including the amendment of any document, the giving of any notice or otherwise, to enable the case to proceed as if the failure to comply with the provision had not occurred.

Signature of documents

76

• (1) Any requirement in these Rules for a document to be signed by a person shall be satisfied, in the case of a document which is transmitted by electronic communication in accordance with these Rules, by electronic signature of the person who is required to sign the document.

• (2) Any requirement in these Rules for an application or appeal to be signed by an applicant or appellant shall be satisfied if signed by the legal representative of the applicant or appellant.

Proof of documents

77

Any document purporting to be a document duly executed or issued by the President, or Convener on behalf of the Tribunal shall, unless the contrary is proved, be deemed to be a document so executed or issued as the case may be.

Method of delivering and receipt of notices and documents

78

• (1) Any notice or document required or authorised by these Rules to be sent to the Tribunal, may be sent to or presented at the Office of the Mental Health Tribunal for Scotland, or such other office as may be notified by the Tribunal.

• (2) All notices and documents required by these Rules to be sent by the Tribunal or the Clerk or given to any person may–

• (a) in the case of a relevant person–

• (i) be sent by post or delivered (by courier or otherwise) to the address specified by that relevant person;

• (ii) transmitted by fax to a specified fax number, where the relevant person has agreed in writing that the relevant person will accept documents transmitted to that fax number; or

• (iii) transmitted by electronic communication to a specified address for such communications where the relevant person has agreed in writing that the relevant person will accept documents transmitted in that manner to that specified address,

• (b) in the case of any other person, to the person's last known address or in any manner specified for that purpose by the Tribunal or person to whom the notice or document is directed.

• (3) Any notice or document sent to a person in accordance with this rule shall, unless the contrary is proved, be deemed to be received–

• (a) where the document is sent by post, on the second day after the day on which it was sent; and

• (b) in any other case, on the day on which the document was transmitted or delivered to that person.

• (4) A notice or document sent or given to the authorised representative of a relevant person shall be deemed to have been sent or given to that relevant person.

• (5) A relevant person may at any time by notice to the Tribunal change the address to which notices and documents are to be sent to the relevant person.

Transfer of case

79

• (1) Where a tribunal is satisfied, in relation to a case which it is hearing that that case could be better considered by a tribunal in another geographical area, it may request the President to arrange for such other tribunal to dispose of the case.

• (2) Where the functions of the Tribunal are being discharged by more than one tribunal, the President shall determine by which tribunal any case is to be dealt with.

• (3) Where this rule applies, the President shall transfer the case from one tribunal to another where necessary.

• (4) Where a case has been transferred in terms of this rule, any matters already decided in the case shall not require to be further considered by the tribunal to which the case is transferred.

Transitional provision

80

• (1) Where, before the date on which these Rules come into force, notice of an application for an interim compulsory treatment order has been sent under rule 7(3) of the rules revoked by rule 81 (“the old Rules”), but the period specified in accordance with rule 7(3)(f) of the old Rules expires on or after the date on which these rules come into force, then the provisions of rule 7(4) to (6) of the old Rules shall, notwithstanding rule 81, continue to apply in respect of that application.

• (2) Where, before the date on which these Rules come into force, written representations have been invited by the Convener under rule 47(4) of the old Rules, but a determination as to whether a document, report or any part of it, is not to be disclosed has not yet been made by the Tribunal or the Convener then the provisions of rule 47 of the old Rules shall, notwithstanding rule 81, continue to apply in respect of the determination of that question.

• (3) Where before the date on which these Rules come into force a copy of a written request to alter the date of a hearing has been sent by the Clerk under rule 57(3) of the old Rules, but the Tribunal has not yet made a decision as to whether the date of the hearing will be altered, then the provisions of rule 57(4) of the old Rules shall, notwithstanding rule 81, continue to apply in respect of the decision of the question.

Revocation

81

The Mental Health Tribunal for Scotland (Practice and Procedure) Rules 2005 are revoked.

Signed

LEWIS MACDONALD — Authorised to sign by the Scottish Ministers — 2005-10-06

Explanatory note

(This note is not part of the Rules)

Footnotes

Editorial notes

Detention in conditions of excessive security

Application that detention in state hospitals is in conditions of excessive security

17A

• (1) An application to the Tribunal for an order under—

• (a) section 264(2) of the Act (detention in conditions of excessive security: state hospitals); or

• (b) section 268(2) of the Act (detention in conditions of excessive security: hospitals other than state hospitals),

must 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;

• (c) the name and address of the patient’s named person;

• (d) the address where the patient resided ordinarily immediately before the making of the order or direction by which their detention in hospital is authorised;

• (e) the order or direction under the authority of which the patient is detained in hospital, including, where the order is a compulsion order, whether or not the patient is subject to a restriction order; 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 notice of the application to the following persons:–

• (a) the patient;

• (b) the patient’s named person;

• (c) the relevant Health Board;

• (d) the patient’s responsible medical officer;

• (e) the managers of the ... hospital in which the patient is detained;

• (f) the mental health officer;

• (g) any guardian of the patient;

• (h) any welfare attorney of the patient;

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

• (j) the Commission;

• (k) in the case of a relevant patient, the Scottish Ministers; and

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

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

• (c) 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 section 264(2) or 268(2) of the Act.

• (6) A person sent notice by the Clerk in accordance with paragraph (4) who wishes to—

• (a) make representations (orally or in writing); or

• (b) lead or produce evidence,

in relation to the application, must send a notice of response to the Tribunal within 21 days of the notice from the Clerk being received by the person or within such other period as may be specified in the notice from the Clerk.

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

Detention in state hospitals in conditions of excessive security: hearings under sections 265(2) and 266(2) of the Act

17B

• (1) This rule applies where a hearing is to be held in accordance with section 265(2) or 269(2) of the Act.

• (2) The Clerk must send notice of the hearing to the persons mentioned in rule 17A(4) within 7 days of the end of the period specified in the order made under section 264(2) or 268(2) of the Act.

• (3) The date fixed for the hearing must, where practicable, be not more than 21 days after the end of the period specified in the order made under section 264(2) or, as the case may be, 268(2) of the Act.

• (4) A notice under paragraph (2) must inform the recipient—

• (a) of the name of the patient concerned;

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

• (c) of the section of the Act in accordance with which the hearing is to be held;

• (d) that the recipient is being afforded the opportunity of—

• (i) making representations (orally or in writing); and

• (ii) leading and producing evidence,

in relation to the hearing under section 265(2) or, as the case may be, 269(2) of the Act.

• (e) that if the recipient wishes to take the opportunity of doing one or more of the things mentioned in sub-paragraph (d), the recipient must send the Tribunal a notice of response in accordance with paragraph (5).

• (5) A person sent notice by the Clerk in accordance with paragraph (2) who wishes to–

• (a) make representations (orally or in writing); or

• (b) lead or produce evidence,

in relation to the hearing, must send a notice of response to the Tribunal within 7 days of the notice from the Clerk being received by the person or within such other period as may be specified in the notice from the Clerk.

• (6) The Clerk must send a copy of any notice of response received to each party.

Application under section 267 of the Act for recall of an order under sections 264 to 266 of the Act

17C

• (1) An application to the Tribunal under—

• (a) section 267(2) of the Act for recall of an order made under section 264(2) or 265(3) of the Act; or

• (b) section 271(2) of the Act for recall of an order made under section 268(2) or 269(3) of the Act,

must 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;

• (c) the order to which the application relates; and

• (d) a brief statement of the reasons for the application.

• (3) The applicant shall sign the application.

• (4) The Clerk shall send a notice of the application to the persons mentioned in rule 17A(4).

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

• (a) of the date, time and place of the hearing; and

• (b) 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 an application under section 267(2) for recall of an order made under section 264(2) or 265(3) of the Act, or under section 271(2) for recall of an order made under section 268(2) or 269(3) of the Act.

• (6) If a person sent notice under 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 21 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.

Distribution of documents

Requests to the Tribunal for non-disclosure of documents

46A

• (1) A request for non-disclosure of any document or part of it in connection with proceedings before the Tribunal shall be made in writing by the person sending the document when that document is sent to the Tribunal, indicating the words and passages for which non disclosure is claimed and giving reasons in each instance.

• (2) If so directed by the Convener or the Tribunal, the person making the request under paragraph (1) shall, where practicable, supply a disclosable version of the relevant document.

• (3) On receipt of a request under paragraph (1), the Convener or the Tribunal shall determine whether the request shall be intimated to any person and the Clerk shall intimate the request to such a person inviting that person–

• (a) to make written representations within such period as may be specified; or

• (b) to make representations at a hearing on such date as specified in the notice.

• (4) On considering the request and accompanying reasons, and after taking into account any representations received in response to any intimation of that request under paragraph (3), the Convener or Tribunal may–

• (a) where the Convener or Tribunal is satisfied that all or any part of the document should not be disclosed, direct that the document or any part of the document should not be disclosed;

• (b) where a disclosable version has been provided under paragraph (2), direct that the version will be disclosed in place of the relevant document; or

• (c) reject the request.

• (5) The Tribunal shall notify the person who made the request under paragraph (1) and any person to whom the request was intimated under paragraph (3) and who made representations that such a decision has been made and the reasons for that decision.

Withholding documents or reports from disclosure at initiative of the Tribunal in exceptional circumstances

Additional parties and relevant persons

Directions

Varying or setting aside of directions

Failure to comply with directions

Other case management powers

Assistance to persons with communication difficulties

Representation

Curator ad litem

Notices

Alteration of hearing

Power to decide case without a hearing

Application that detention in hospital is in conditions of excessive security

Application that detention in hospital is in conditions of excessive security: medical report

17AA

• (1) The report accompanying an application for an order under section 264(2) or 268(2) of the Act must (in addition to providing the information required by section 264(7A) or, as the case may be, 268(7A) of the Act) state—

• (a) the name of the approved medical practitioner who prepared it; and

• (b) in which list compiled and maintained under section 22(1) of the Act the practitioner is included.

• (2) In paragraph (1) “report” means the report required by—

• (a) section 264(7A) of the Act, in the case of an application for an order under subsection (2) of that section; or

• (b) section 268(7A) of the Act, in the case of an application for an order under subsection(2) of that section.

Hearings under section 265(2) or 269(2) of the Act

Application under section 267 or 271 of the Act for recall of an order