Continuing the discussion from Potential reduction in paper hearings for CTO patients:
I’ll be eating humble pie if I’ve interpreted it wrongly, but here’s the relevant extract from my MHLO summary of that SI:
The intention of the rule 35 change is to undo the 2024 amendment which accidentally applied extra safeguards for CTO patients (those being requirements that the first and at least alternate decisions thereafter be made at hearings). But an accidental side-effect of the 2025 amendment is to remove those and other safeguards from detained patients. Their safeguards now do not apply if their case either has not previously been considered by the tribunal or was last considered without a hearing (which is the reverse of what must be intended). The lost safeguards are any restrictions on repeated paper hearings (as above), the requirement to be legally represented, and the requirement that the representative state in writing: that the patient does not wish to attend or be represented; that the representative has discussed any reports or other documents provided; and that the patient has capacity to decide. (The requirement that the tribunal be satisfied of patient’s capacity is probably also part of the disapplied detained-patient safeguards.)
Maybe the temporary solution to the whole thing is that the tribunal only “may” have paper hearings, so should decide in accordance with what was intended rather than what was done.
