We obviously have the SM v Livewell case which deals with capacity to make an application to the Tribunal.
Obviously in cases where the application is invalid the Tribunal have the option under Rule 8 to strike it out however today I discovered that there is no equivalent in the Welsh Tribunal Rules.
The case I dealt with was one where I was appointed under R13(5)(a)(ii) - basically R11(7)(B). On reviewing all of the documentation, application and meeting the patient it became overwhelmingly clear that this was a case that in England under Rule 8 but the only mechanism in Wales would be to make an application to withdraw the application.
Has anyone else come across this? It seems a massive oversight in the design of the MHRT Wales rules
As far as I remember, the strike-out power was a new addition in 2008. I don’t know why the Welsh tribunal didn’t follow suit, as a lot of their current rules are based on the English equivalent.
Probably they still just decide that the proceedings should end, under the general case management powers. Rule 5 of the Welsh rules states: “The Tribunal may give directions at any time in relation to the conduct or disposal of proceedings.”
I hope that someone who practises in Wales can provide a definitive answer!
Yes seems strange, I haven’t come across this yet.
Slightly off topic but I also noticed recently the MHRT Wales rules do not have an equivalent reinstatement rule as we do in England (Rule 17(4)(5)). Having thought about this Rule 5 as Jonathan mentioned above I wonder if that would be an option in those circumstances, although there is no mention of timescales like we have at Rule 17(5).
Reinstatement was another new addition in the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. Maybe reinstatement and strike out were powers that the other HESC jurisdictions wanted in the rules. Neither s22 and schedule 5 of the Tribunals, Courts and Enforcement Act 2007 nor s65 and schedule 2 of the Mental Health Act 1983, which deal with the creation of the English and Welsh rules respectively, mention strike out or reinstatement. I reckon – if it wanted to – the Welsh tribunal could achieve the same ends using its case management powers.