EXPLANATORY NOTE
(This note is not part of the Rules)
These Rules amend the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 (“the 2005 Rules”) to take into account amendments made by the Mental Health (Scotland) Act 2015 (“the 2015 Act”) to the Mental Health (Care and Treatment) (Scotland) Act 2003. They come into force on 30th June 2017.
The 2015 Act made changes to the current provision about named persons so that it is no longer the case that every patient whose case comes before the Tribunal will automatically have a named person to act in their interests.
Section 257A of the 2015 Act instead provides that where a patient over the age of 16 does not have a named person, and is incapable in relation to a decision as to whether to initiate an application or appeal before the Tribunal, then certain persons listed in section 257A(9) may initiate certain applications or appeals on the patient’s behalf. As part of this change new appeal provisions have been inserted into the Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008 and the Mental Health (Cross-border transfer: patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005. This instrument makes changes to the 2005 Rules to accommodate those amendments.
Rule 2 of the 2005 Rules is amended so that the definition of “party” does not include a person who has initiated proceedings before the Tribunal by virtue of any of these new provisions. It is also amended to include a definition of the listed initiator requirement which must be met by anyone making an application on appeal by virtue of the new rules (rule 3).
Rules 5, 10, 11, 13, 15, 16, 17A and 23 of the 2005 Rules are amended to reflect the need to comply with the listed initiator requirement in certain proceedings before the Tribunal (rule 4).
Rule 55 of the 2005 Rules in relation to curators ad litem is amended so as to provide that where a person has initiated an application or appeal on the patient’s behalf by virtue of the new rules, the Tribunal may appoint a curator ad litem (rule 6).
The 2005 Rules are also amended to clarify existing practice.
Rule 6 of the 2005 Rules is amended to clarify reference to the powers the Tribunal has under sections 64 and 65 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (rule 5).
Rule 72 of the 2005 Rules is amended to make it clear that the clerk must send a copy of the document containing the Tribunal’s decision and a full statement of the facts found by the Tribunal and the reasons for the decision to the parties. In addition, the patient’s responsible medical officer and mental health officer are to receive a copy of the decision of the Tribunal where they are not already a party to the proceedings (rule 7).