Legalize / United Kingdom / Statutory-Instrument

The Mental Health Review Tribunal for Wales Rules 2008

Type Statutory-Instrument

Publication 2008-10-13

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 13th October 2008

Laid before Parliament: 13th October 2008

Coming into force: 3rd November 2008

The Lord Chancellor makes these Rules in exercise of the powers conferred by section 78 of the Mental Health Act 1983 and after consultation with the Administrative Justice and Tribunals Council in accordance with section 8 of the Tribunals and Inquiries Act 1992 .

PART 1 — Introduction

Citation and commencement

1

These Rules may be cited as the Mental Health Review Tribunal for Wales Rules 2008 and come into force on 3rd November 2008.

Interpretation

2

(1) In these Rules—

“the Act” means the Mental Health Act 1983;

“applicant” means a person who—starts Tribunal proceedings, whether by making an application or a reference, oris substituted as a party under rule 12 (substitution and addition of parties);

“document” means anything in which information is recorded in any form, and an obligation under these Rules to provide or allow access to a document or a copy of a document for any purpose means, unless the Tribunal directs otherwise, an obligation to provide or allow access to such document or copy in a legible form or in a form which can be readily made into a legible form;

“final determination” means a decision of the Tribunal which disposes of proceedings, including a decision with recommendations or a deferred decision for conditional discharge, but a refusal of an application for permission to appeal under rule 30 (application for permission to appeal) is not a final determination;

“hearing” means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication;

“interested party” means a person added as an interested party under rule 12 (substitution and addition of parties);

“legal representative” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act);

“party” means the patient, the responsible authority, the Secretary of State (if the patient is a restricted patient), the Welsh Ministers or Secretary of State in a reference under rule 15(7) (seeking approval under section 86 of the Act) and any other person who starts a case by making an application or referring a matter to the Tribunal under the Act;

“registered person” means the person or persons registered in respect of a registered establishment;

“responsible authority” means—in relation to a patient detained under the Act in a hospital within the meaning of Part 2 of that Act, the managers (as defined in section 145 of the Act);in relation to a patient subject to guardianship, the responsible local social services authority as defined in section 34(3) of the Act;in relation to a community patient, the managers of the responsible hospital (as defined in section 145 of the Act);...

“restricted patient” has the meaning set out in section 79(1) of the Act;

“Tribunal” means the Mental Health Review Tribunal for Wales;

“working day” means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under section 1 of the Banking and Financial Dealings Act 1971 .

(2) In these Rules, any reference to a rule or Schedule alone is a reference to a rule or Schedule in these Rules.

Overriding objective

3

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly, justly, efficiently and expeditiously.

(2) Dealing with a case in accordance with paragraph (1) includes—

(a) avoiding unnecessary formality and seeking flexibility in the proceedings;

(b) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it—

(a) exercises any power under these Rules; or

(b) interprets any rule.

PART 2 — General powers and provisions

Preliminary and incidental matters

4

As regards matters preliminary or incidental to an application or reference, the President may, at any time up to the hearing of an application or reference by the Tribunal, exercise the powers of the Tribunal under rules 5, 6, 10, 12, 13, 14, 15, 16, 17, 21, 22, 26, 28 and 29.

Case management powers

5

(1) The Tribunal may give directions at any time in relation to the conduct or disposal of proceedings.

(2) In particular, and without restriction on the general power to give directions under paragraph (1) and any other provisions within these Rules, the Tribunal may by directions—

(a) extend or shorten the time for complying with any rule or direction (unless such extension or abridgement would conflict with a provision of an enactment containing a time limit if—

(i) the party requiring the extension or abridgement has shown a good reason why it is necessary; and

(ii) the Tribunal considers the extension or abridgement to be in the interests of justice;

(b) permit or require a party to amend a document;

(c) permit or require a party or another person to provide documents, information or submissions to the Tribunal or, subject to rule 17 (withholding documents or information likely to cause harm), a party;

(d) provide that an issue in the proceedings will be dealt with as a preliminary issue;

(e) hold a hearing to consider any matter, including a case management issue;

(f) decide the form of any hearing;

(g) stay execution of its own decision pending an appeal of such decision;

(h) stay proceedings.

(3) Rule 6 (directions) sets out the procedures for applying for and giving directions.

Directions

6

(1) The Tribunal may give a direction at any time, including a direction amending or suspending an earlier direction.

(2) The Tribunal may give a direction—

(a) on the application of one or more of the parties; or

(b) on its own initiative.

(3) An application for directions must include the reason for making that application.

(4) An application for directions may be made either—

(a) by sending or delivering a written application to the Tribunal; or

(b) orally during the course of a hearing.

(5) Unless the Tribunal considers that there is a good reason not to do so, the Tribunal must send written notice of any direction to every party and any other person affected by the direction.

Failure to comply with rules or directions

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(1) An irregularity resulting from a failure to comply with any provision of these Rules or a direction does not of itself render void the proceedings or any step taken in the proceedings.

(2) If a party has failed to comply with a requirement in these Rules or a direction, the Tribunal may take such action the Tribunal considers just, which may include—

(a) waiving the requirement; or

(b) requiring the failure to be remedied.

Calculating time

8

(1) An act required by these Rules or a direction to be done on or by a particular day must be done before 5pm on that day.

(2) If the time specified by these Rules or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.

Sending and delivery of documents

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(1) Any document to be sent or delivered to the Tribunal under these Rules must be—

(a) sent by prepaid post or delivered by hand;

(b) sent by facsimile transmission to the number specified by the Tribunal; or

(2) Subject to paragraph (3), a party may inform the Tribunal and all other parties that a particular form of communication (other than pre-paid post or delivery by hand) should not be used to send documents to that party.

(3) If a party provides a facsimile transmission number, email address or other details for the electronic transmission of documents to them, that party must accept delivery of documents by that method.

(4) Subject to paragraph (3), where any document is required or authorised by these Rules to be sent to any person it may be sent by prepaid post or delivered to the last known address of the person to whom the document is directed.

Prohibitions on disclosure or publication

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(1) Unless the Tribunal gives a direction to the contrary, information about proceedings before the Tribunal and the names of any persons concerned in such proceedings must not be made public.

(2) The Tribunal may make an order prohibiting the disclosure or publication of—

(a) specified documents or information relating to the proceedings; or

(b) any matter likely to lead members of the public to identify any person who the Tribunal considers should not be identified.

(3) The Tribunal may use the power in paragraph (2) in order to take action under rule 17 (withholding documents or information likely to cause harm) and in such other circumstances as it considers just.

Appointment of the tribunal

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(1) A person shall not be qualified to serve as a member of a Tribunal for the purpose of any proceedings where—

(a) that person is a member, director or registered person (as the case may be) of the responsible authority concerned in the proceedings; or

(b) that person is a member or director of a local health board or National Health Service trust which has the right to discharge the patient under section 23(3) of the Act; or

(c) the President or, as the case may be, chairman of the Tribunal considers that that person appears to have a conflict of interest or bias of opinion in respect of the patient, or any other member of that Tribunal or party to the proceedings, or has recently been involved with the medical treatment of the patient in a professional capacity.

(2) The persons qualified to serve as chairman of the Tribunal for the consideration of an application or reference relating to a restricted patient shall be restricted to those legal members who have been approved for that purpose by the Lord Chief Justice after consulting the Lord Chancellor.

(3) The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005 ) to exercise his functions referred to in paragraph (2).

Substitution and addition of parties

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(1) The Tribunal may give a direction substituting a party if—

(a) the wrong person has been named as a party; or

(b) the substitution has become necessary because of a change in circumstances since the start of proceedings.

(2) The Tribunal may give a direction adding a person to the proceedings as an interested party.

(3) If the Tribunal gives a direction under paragraph (1) or (2) it may give such consequential directions as it considers appropriate.

Representatives

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(1) A party may appoint a representative (whether legally qualified or not) to represent that party in the proceedings, not being a person liable to be detained or subject to guardianship or after-care under supervision or a community patient under the Act, or a person receiving treatment for mental disorder at the same hospital or registered establishment as the patient.

(2) If a party appoints a representative, that party or representative must send or deliver to the Tribunal written notice of the representative's name and address.

(3) Anything permitted or required to be done by or provided to a party under these Rules or a direction, other than signing a witness statement, may be done by or provided to the representative of that party.

(4) In the event of a representative being duly appointed—

(a) the Tribunal and other parties may assume that the representative is and remains authorised until receiving written notification to the contrary from the representative or the represented party; and

(b) the Tribunal must provide to the representative any document which is required to be sent to the represented party, and need not provide that document to the represented party.

(5) The Tribunal may appoint a legal representative for the patient if—

(a) the patient has not appointed a representative; and

(i) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or

(ii) the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient's best interests for the patient to be represented.

(6) Unless the Tribunal otherwise directs, a patient or any other party may be accompanied by such other person as the patient or party wishes, in addition to any representative that may have been appointed under this Rule, provided that such person does not act as the representative of the patient or other party.

PART 3 — Proceedings before the Tribunal

CHAPTER 1 — Before the final determination

Procedure for applications and references

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(1) An application or reference must be made in writing, be signed (in the case of an application, by the applicant or any person authorised by the applicant to do so) and be provided to the Tribunal so that it is received within the time specified in the Act or the Repatriation of Prisoners Act 1984 .

(2) An application or reference must, if possible, include—

(a) the name and address of the patient;

(b) in the event of an application being made by the patient's nearest relative, that person's name, address and relationship to the patient;

(c) the provision under which the patient is detained or liable to be detained, subject to guardianship or after-care under supervision or a community patient;

(d) whether the person making the application has appointed a representative or intends to do so, and the name and address of any representative appointed;

(e) the name and address of the responsible authority in relation to the patient.

(3) On receipt of an application or reference, the Tribunal must send notice of the same to—

(a) the responsible authority;

(b) the patient (where the patient is not the applicant); and

Statements, reports and documents

15

(1) Subject to rule 17 (withholding documents or information likely to cause harm), when the Tribunal receives a document from any party it must send a copy of that document to each other party.

(2) When the Tribunal receives an application or reference it must send to the responsible authority or the Secretary of State, as the case may be, a request for the documents and information required to be provided under paragraph (3), (4) or (5).

(3) In proceedings under section 66(1)(a) of the Act (application for admission for assessment), on the earlier of receipt of the copy of the application or receipt of a request from the Tribunal, the responsible authority must send or deliver to the Tribunal by the commencement of the hearing—

(a) the application for admission;

(b) the written medical recommendation or recommendations, as the case may be, of the registered medical practitioners on which the application is founded;

(c) such of the information specified in Part A of the Schedule as is within the knowledge of the responsible authority and can reasonably be provided in the time available; and

(d) such of the reports specified in Part B of the Schedule as can reasonably be provided in the time available.

(4) If the patient is a conditionally discharged patient the Secretary of State shall send to the Tribunal as soon as practicable, and in any event within 6 weeks of receipt by the Secretary of State of a copy of the application or request from the Tribunal, a statement which shall contain—

(a) the information specified in Part C of the Schedule, in so far as it is within the knowledge of the Secretary of State; and

(b) the reports specified in Part D of the Schedule, in so far as it is reasonably practicable to provide them.

(5) If neither paragraph (3) nor (4) applies, the responsible authority must send a statement to the Tribunal as soon as practicable, and in any event within 3 weeks of receipt by the responsible authority of a copy of the application or receipt of a request from the Tribunal, a statement which shall contain—

(a) the information specified in Part A of the Schedule, in so far as it is within the knowledge of the responsible authority;

(b) the report specified in paragraph 1 of Part B of that Schedule; and

(6) If the patient is a restricted patient the responsible authority must also send the statement under paragraph (5) to the Secretary of State, and the Secretary of State must send a statement of any further relevant information to the Tribunal as soon as practicable and in any event—

(a) in proceedings under section 75(1) of the Act, within 2 weeks of receipt by the Secretary of State of the relevant authority's statement; or

(b) otherwise, within 3 weeks of receipt by the Secretary of State of the relevant authority's statement.

(7) If the Welsh Ministers or Secretary of State wish to seek the approval of the Tribunal under section 86(3) of the Act, the Welsh Ministers or Secretary of State, as the case may be, must refer the patient's case to the Tribunal and the provisions of these Rules applicable to references under the Act apply to the proceedings.

Notice of proceedings

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