The tribunal has been able since 2012 to hold CTO mandatory reference hearings on the papers when the patient does not wish to attend or be represented at a hearing. In 2024 a similar power to hold detention mandatory reference hearings on the papers was added and, seeing as paper hearings dilute the statutory safeguards, rule 35 was changed so that paper hearings can’t be held when:
(a) the patient’s case has not previously been considered by the Tribunal, or
(b) the patient’s case was last considered by the Tribunal without a hearing.
Here are three observations/questions:
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I only noticed tonight when writing some CPD questions that, although it used to be that CTO reference hearings could be decided on the papers every time, now that is limited to every other time. In one way it makes sense to treat both classes of patient in a non-discriminatory way, but the tribunal might not save as much money and time as it had hoped. I wonder whether the number of new detention paper hearings has been or will be greater than the reduction in CTO paper hearings.
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I wonder what “the patient’s case” means. If it doesn’t include both detention and CTO periods then that would further reduce the ability to have paper hearings (as the first hearing on the CTO would have to be an oral hearing).
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It used to be that capacity was only considered by the tribunal if an unrepresented patient asked for a paper hearing – but now the tribunal has to be satisfied that the patient has capacity to decide in relation not only to detention cases but also CTO cases, whether the patient is represented or not. Previously a rule 11(7)(b) representative of a CTO patient could request a paper hearing (though maybe the change is a good one).
Has anyone come across any of this in practice?
I’m not sure it’s entirely in-step with your question, but I requested a paper hearing for a 6-month ref CTO patient recently without keeping in mind the R.35 changes. I got quite a fast response from a Judge approving it & waiving the new requirements under Rule 7(2) “taking in mind” the previous rules and the wishes of the patient. I’m not entirely convinced that’s within the spirit of the HESC Rules, but it seems like Js are still willing to approve paper hearing requests on the previous criteria.
Thanks. The tribunal is treating its rules as mere guidance. The decision seems to be unlawful:
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Rule 7(2) is about a party failing to comply with a requirement in the rules etc. The tribunal can’t use that rule to excuse its own failure (in this case, to hold an oral hearing unless one of the exceptions apply).
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Even rule 5, which allows the tribunal to “regulate its own procedure”, is limited: it is “[s]ubject to the provisions of the 2007 Act and any other enactment” (the rules themselves being an enactment), and self-evidently should not be used to countermand another rule which explicitly deals with the situation.
It would be interesting if your client wants to challenge the decision not to hold an oral hearing, for example if he is not entirely happy with the result.
I agree, Jonathan. In this case my client was very set on a paper hearing. However, my suspicion is that the reasons were copy/paste so we might see it be considered in due course.
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Would you be able to set out here the “copy/paste” reasons (of course, without including any information about the client’s case)?
I’d be hesitant without permission from the Tribunal to publish part of the decision. Is there any guidance you can refer me to?
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My interpretation is that unless what you publish falls within “information about mental health cases and the names of any persons concerned in such cases” you don’t need permission. What “information” is protected from publication has been defined quite narrowly by the courts (see Pickering v Liverpool Daily Post [1991] 2 AC 370 and Re B (A Child) [2004] EWHC 411 (Fam)).
But if you are still hesitant about that, have a look at the approach taken in Re A (publication of MHT decision) [2023] MHLO 3 (FTT). You would just need to supply a redacted version for publication and, essentially, argue that there are no exceptional circumstances justifying departure from the open justice principle. You should probably argue in the alternative that permission is not required, to leave your options open.
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Thanks Jonathan. I’ve spoken to my client who has consented to this request, and I’ve submitted a request to the Tribunal to approve the jurisdiction issue as suitable to publish. I’ll update you here once I get a response.
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