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Mental Health (Care and Treatment) (Scotland) Act 2003

Schedule 2 (Introduced by Section 21): the Mental Health Tribunal for Scotland

667.This schedule is in 4 parts and sets out the arrangements under which the Tribunal will operate.

Part 1: members of the Tribunal

668.Paragraph 1 provides that the membership of the Tribunal shall be drawn from three panels. The Scottish Ministers will appoint these members to the Tribunal. The three panels of members will consist of legal, medical and general members respectively. Regulations may specify the qualifications, training and experience required for each panel.

669.Categories of persons who are disqualified from appointment as, and being, members of the Tribunal are set out in sub-paragraph (2).

670.In addition to the three panels mentioned above, paragraph 2 establishes a panel consisting of all those holding office as sheriffs principal, sheriffs or part-time sheriffs to serve as sheriff conveners of the Tribunal.

671.Paragraph 3 requires the Scottish Ministers to appoint a President of the Tribunal. The President is to preside over the discharge of the Tribunal’s functions, and can also serve as a convener of the Tribunal. The President must have such qualifications, training and experience as may be prescribed in regulations.

672.The President is subject to the same provisions as Tribunal members as regards disqualification, terms of office, remuneration and pensions (paragraphs 1(2), 4, 5 and 6). A legal member of the Tribunal appointed for the purpose by the Scottish Ministers can discharge the functions of the President if the President is absent or unable to act. Further regulations may provide for the President’s functions to be delegated to Tribunal members or Tribunal staff. These regulations may contain provision for different functions to be delegated to different people for different regional areas.

673.Paragraph 4 sets out the terms of office for Tribunal members. Tribunal members will generally serve for 5 years but will normally be entitled to be re-appointed for a further period, unless the circumstances set out in sub-paragraph (6) apply.

674.Each member holds office in accordance with the terms of the member’s instrument of appointment (which may, for example, provide that the member is appointed on a part-time or a full-time basis).

675.Paragraph 5 sets out the procedure for removing a Tribunal member from office. This can only be done by a disciplinary committee constituted under sub-paragraph (3),chaired by a Court of Session judge or a sheriff principal. Regulations may make provision on suspension and otherwise on the committee’s procedure.

676.Paragraph 6 allows the Scottish Ministers to make remuneration and pension arrangements for Tribunal members.

Part 2: organisation and administration of the functions of the Tribunal

677.Paragraph 7 provides for the functions of the Tribunal to be discharged by such number of tribunals as may be determined from time to time by the President. The President also determines the times and places of Tribunal hearings.

678.Sub-paragraphs (3) and (4) deal with the constitution of the Tribunal when discharging a function. A tribunal will be selected by the President. Ordinarily it will consist of a convener, who will be the President or legal member, a medical member and a general member. In cases where the Tribunal receives an application under section 191 and 192 (restricted patient cases), the convener must be the President or a sheriff convener.

679.(Rules made under paragraph 10 (see paragraph 683 of these Notes) may alter the composition of the Tribunal for particular purposes).

680.The President is responsible for ensuring that the Tribunal discharges its functions efficiently and effectively (sub-paragraph (5)). Sub-paragraph (6) gives the President power to give directions, and issue guidance, about the administration of the Tribunal.

681.Paragraph 8 provides that the Scottish Ministers may appoint staff and make arrangements for their remuneration, pensions etc and provide accommodation for the Tribunal. Sub-paragraphs (3) and (4) of paragraph 8 impose a duty on Health Boards, the State Hospitals Board for Scotland and local authorities to provide hearing venues on request from the President, as far as it is reasonably practicable to do so.

682.Paragraph 9 provides for Scottish Ministers to provide financial resources to meet the Tribunal’s expenses.

Part 3: Tribunal procedure

683.Paragraph 10(1) enables the Scottish Ministers to make rules about the practice and procedure of the Tribunal. Sub-paragraph (2) lists certain matters that may be included within such rules.

684.Paragraph 11 confers on the President a power to supplement the rules by making directions about procedure and practice. This power could be exercised in relation to, for example, the allocation of hearing dates.

685.Paragraph 12 gives the Tribunal power to require by citation any person to attend to give evidence at any hearing or to produce documents held by them. The Tribunal may require a witness to give evidence on oath or to affirm. Non-compliance with a citation without reasonable excuse, is an offence, subject to specified penalties.

686.Paragraph 13 provides for Tribunal decisions, where made by more than one member, to be made by majority with the convener having a second casting vote in the event of a tie. The Tribunal is required to produce a written document, containing the decision, a full statement of established facts and reasons for the decision. The Tribunal must notify each party of its decision and, on the request of one of the parties, a copy of the written document must be sent to each party.

Part 4: reports, information etc.

687.Paragraph 14 requires the President to submit an annual report to the Scottish Ministers on the performance of the Tribunal’s functions. This report requires to be laid before the Scottish Parliament.

688.Paragraph 15 requires the President to provide to the Scottish Ministers, or other persons specified by them, such information about the Tribunal’s operation as the Scottish Ministers may direct.

689.Paragraph 16 permits the Tribunal to pay allowances or expenses to persons appearing at a Tribunal hearing. These may cover for example, travel and subsistence and loss of earnings. Provision is also made for payments to persons who have produced medical or other reports commissioned by the Tribunal under paragraph 10(2)(q). In both cases the President determines the amount payable.

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