Hearing Procedure I – Preliminary Matters

In this and the next chapter, we will consider how tribunal hearings should be conducted. All aspects of the hearing will be considered in these two chapters, except for the rules of evidence, which are dealt with in Chapter 5. Clearly, the procedure to be followed will vary to some extent, depending on the purpose of the hearing, and again depending on who attends and on the issues the tribunal will focus on. However, there are some general provisions in the rules on how any hearing should be conducted. There are also some generic practical points that can apply to most, if not all, hearings. It is these rules and generic points that will be explained in this chapter and the next. In this and the following chapter, unless otherwise stated, all comments apply to hearings on all types of application, referral and appeal to be heard by the tribunal.

The Tribunal, Parties and Relevant Persons

The 2003 Act introduces for the first time the Mental Health Tribunal for Scotland. It also creates a new category of party to proceedings: the “named person”. Various other persons are entitled to receive intimation of and be given the opportunity to participate in proceedings. The Mental Health Officer and the Responsible Medical Officer each has a raft of statutory responsibilities in terms of the Act. Here we consider those who may be parties to proceedings, and the role of each in proceedings before the Tribunal, by reference both to the Act and to the Rules.

Tribunal Applications, Appeals, References and Reviews

The 2003 Act makes provision for the manner in which various types of proceedings before the Tribunal are to be initiated and progressed. This chapter deals with the provisions relating to the procedure for applications, appeals, references and reviews, which are contained in, respectively, Pts II, III, IV and V of the Rules. Cases remitted to the Tribunal following a successful appeal to the sheriff principal or the Court of Session, for which provision is made in Pt VI, are covered in the chapter dealing with appeals from the Tribunal.1 At first sight, there is no obvious logic to the terms of art chosen by the drafters for some of the different means of proceeding as between applications and appeals. Where a patient is dissatisfied with a determination made by an RMO to extend his CTO, he may make an application for its revocation. Where he is unhappy with a decision of the Scottish Ministers to vary a condition of conditional discharge, however, his remedy is to appeal to the Tribunal.

Introduction and Background

In October 2005 a new tribunal, the Mental Health Tribunal for Scotland (“MHTS”), was born. This Tribunal1 is like no other that has been introduced in Scotland. It is based on a multi-disciplinary approach to decision-making involving a combination of health professionals and lawyers. The MHTS arose from the Millan Report2 and represents a sea change in the way in which decisions are made in respect of the treatment of mentally disordered persons. The Tribunal has been in operation now for around 4 years. It is still, therefore, relatively young and its procedures will remain on a steep developmental incline for some time to come. However, given that hearings take place every day, up and down the country, it is fair to say that, for such a young tribunal, a considerable amount of development has already occurred.

Appeals from Tribunal Decisions

Sections 320 and 322 of the 2003 Act make provision respectively for appeal to the sheriff principal and the Court of Session from decisions of the tribunal. Almost all of the decisions which can be appealed under s 320 are decisions on the merits of the application or other matter before the tribunal relating to the status of the patient in the sense of his liability to detention, or the conditions of his detention. Examples include a refusal to revoke an STDC,1 a decision to make or refuse to make a CTO,2 and a decision to revoke a compulsion order under s 193(3) and (4) of the 2003 Act.3 Appeals may also be made against decisions of the tribunal about the appointment of named persons.4 There is no provision for an immediate appeal against procedural decisions such as those to adjourn, or to make directions as to the way in which a future hearing is to proceed. The legislature must be taken to have intended that cases should proceed to a conclusion on the merits without interruption caused by appeals on procedural matters. It is, however, noteworthy that s 324(2)(b) makes it a ground of appeal against the ultimate decision in the proceedings that there has been a procedural impropriety in the conduct of any hearing by the tribunal on the application.

Tribunal Decisions

In the course of proceedings before the tribunal, a variety of decisions will have to be made, some in relation to preliminary and procedural matters, and others of a substantive nature, whether making or refusing interim orders, or reaching a determination which will finally dispose of the proceedings. This chapter is concerned with the way in which the tribunal communicates its decisions, and the statutory and other legal rules concerned with the issuing of written reasons for such decisions. Like other courts and tribunals, there are occasions when, rather than making a substantive order authorising particular measures in respect of a patient, it will be open to the tribunal to make orders which deal only with procedural matters. Many of the matters that come before the tribunal do not require a substantive order to be made on each occasion the case calls.

Hearing Procedure III – The Rules of Evidence

Evidence is the name given to any material that may be made available to the tribunal and from which it may draw conclusions as to matters of fact. There are two main types of evidence: documentary and oral. It should be noted that legal submissions or arguments (including any preliminary points) are not evidence. Evidence will feature in the vast majority of tribunal hearings, the main exceptions being those hearings that do not really begin since the hearing requires to be adjourned for a particular reason. The importance of identifying material that is evidence is twofold. First, there are certain legal rules that apply to the permissibility (admissibility), presentation and assessment of evidence. Many of these rules have been developed in the context of hearings in the public courts. Most apply to criminal proceedings in those courts, but there are some rules of civil evidence. The questions, then, are: which rules apply to tribunal hearings, and how do they apply?

Hearing Procedure II – The Merits of the Case

In this chapter we consider how the merits of a case should be dealt with by the tribunal. This stage begins once all preliminary matters have been dealt with. It is not possible to lay down an absolutely fixed procedure, since much will depend on the facts of the case and its procedural history. However, we consider, in the usual order, some of the main parts of a standard hearing on the merits, so as to give a general impression of how a typical tribunal case should be conducted. As has already been mentioned, tribunal members are under an obligation to avoid formality wherever possible.1 While this obligation exists for all parts of the hearing, including discussions on preliminary matters, it is perhaps more relevant where the merits of the case are under consideration, since at this stage evidence on the merits of the application or appeal will be led.2 One of the major ways in which such informality is demonstrated (when compared with public court hearings) lies in the emphasis during tribunal hearings on interventions and questioning by tribunal members.3 However, the obligation to conduct the hearing as informally as possible should not be seen as a blank cheque simply to deal with the arguments and evidence presented in a completely arbitrary and relaxed way.