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Publication - Consultation paper

Draft regulations transferring the Mental Health Tribunal for Scotland to the Scottish Tribunals: consultation

Published: 26 Feb 2018
Part of:
Equality and rights, Health and social care
ISBN:
9781788515559

Consultation papers on the draft regulations transferring the Mental Health Tribunal to the Scottish Tribunals.

113 page PDF

2.1MB

113 page PDF

2.1MB

Contents
Draft regulations transferring the Mental Health Tribunal for Scotland to the Scottish Tribunals: consultation
Annex C

113 page PDF

2.1MB

Annex C

Scottish Statutory Instruments

2018 No.

Tribunals And Inquiries

The Upper Tribunal for Scotland (Mental Health Rules of Procedure) Regulations 2018

Made - - - - 2018
Laid before the Scottish Parliament 2018
Coming into force - - 12th November 2018

The Scottish Ministers make the following Regulations in exercise of the powers conferred by paragraph 4(1)(b) and (2) of schedule 9 of the Tribunals (Scotland) Act 2014( a) and all other powers enabling them to do so.

In accordance with paragraph 4(3) of schedule 9 of that Act, the Scottish Ministers have consulted the President of Tribunals and such other persons as they considered appropriate.

Citation and commencement

1. —(1) These Regulations may be cited as the Upper Tribunal for Scotland (Mental Health Rules of Procedure) Regulations 2018 and the Rules contained in the schedule may be cited as the Upper Tribunal for Scotland Mental Health Rules of Procedure 2018.
(2) These Regulations come into force on 12th November 2018.
(3) In these Regulations, "the 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003.

Disapplication of the Upper Tribunal for Scotland Rules of Procedure 2016

2. The Upper Tribunal for Scotland Rules of Procedure 2016( b) do not apply to proceedings before the Upper Tribunal under the 2003 Act.

Application of Rules in schedule

3. The Rules in the schedule of these Regulations apply to all proceedings before the Upper Tribunal under the 2003 Act.

A member of the Scottish Government

St Andrew’s House,
Edinburgh
2018

Regulation 3

Schedule 1

The Upper Tribunal for Scotland Mental Health Rules of Procedure 2018

Contents

Part 1
Interpretation and Application

1. Interpretation
2. Application

Part 2
Role of The Upper Tribunal

3. Purpose of the Upper Tribunal

Part 3
Procedure for Cases in the Upper Tribunal

4. Notice of appeal against a decision of the First-tier Tribunal
5. Response to the notice of appeal
6. Cases transferred to the Upper Tribunal

Part 4
General Powers and Provisions

7. Case management
8. Procedure for applying for and giving directions
9. Failure to comply with rules etc.
10. Dismissal of a party’s case
11. Addition, substitution and removal of parties
12. Orders for expenses
13. Representatives
14. Curator ad litem
15. Supporters
16. Calculating time
17. Sending and delivery of documents
18. Disclosure of documents and information
19. Evidence and submissions
20. Citation of witnesses and orders to answer questions or produce documents
21. Withdrawal
22. Chairing member
23. Venue for hearings
24. Enforcement of decisions

Part 5
Hearings

25. Hearings
26. Entitlement to attend a hearing
27. Notice of hearings
28. Public and private hearings
29. Hearings in a party’s absence

Part 6
Decisions

30. Notice of decisions and reasons
31. Review of a decision

Part 7
Appealing Decisions of the Upper Tribunal

32. Interpretation of this Part
33. Application for permission to appeal a decision of the Upper Tribunal
34. Upper Tribunal’s consideration of application for permission to appeal

Part 8
Legal Aid

35. Legal aid

Part 1

Interpretation and Application

Interpretation

1. —(1) In these Rules—
"the 2003 Act" means the Mental Health (Care and Treatment) (Scotland) Act 2003( a);
"the 2014 Act" means the Tribunals (Scotland) Act 2014( b);
"Appeal Appendix" means all the documents and authorities to be relied on for the purpose of the appeal along with an inventory;
"appellant" means—
(a) a person who makes an appeal to the Upper Tribunal, except a person who initiated them by virtue of a provision giving a listed initiator authority to act;
(b) a person who has had an application to the First-tier Tribunal transferred to the Upper Tribunal; or
(c) in any case, a person substituted as an appellant under rule 11(1) (addition, substitution and removal of parties);
"document" means anything in which information is recorded in any form;
"First-tier Tribunal" means the First-tier Tribunal of Scotland Mental Health Chamber;
"hearing" means an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication;
"interested party" means a person other than the appellant or respondent on whom the First-tier Tribunal has ordered the proceedings before it to be served;
"party" means a person who is (or was at the time that the Upper Tribunal disposed of the proceedings) an appellant or respondent in proceedings before the Upper Tribunal;
"practice direction" means a practice direction issued in terms of section 74 of the 2014 Act;
"President" means the President of Tribunals;
"proceedings" includes, unless indicated otherwise, a part of the proceedings;
"respondent" means—
(a) in an appeal against a decision of the First-tier Tribunal, that tribunal and any person other than the appellant who—
(i) was a party before the First-tier Tribunal; or
(ii) otherwise has a right of appeal against the decision of the First-tier Tribunal and has given notice to the Upper Tribunal that they wish to be a party to the appeal;
(iii) in proceedings transferred or referred to the Upper Tribunal from the First-tier Tribunal, a person who was a respondent in the proceedings in the First-tier Tribunal; or
(iv) in any case, a person substituted or added as a respondent under rule 11 (addition, substitution and removal of parties);
"Upper Tribunal" means the Upper Tribunal for Scotland; and
"witness statement" means a written statement of a witness ordered by the Upper Tribunal to stand for the evidence-in-chief of the witness.
(2) In these Rules "the listed initiator requirement" is that the appeal is accompanied by—
(a) a written statement by an approved medical practitioner confirming that in the opinion of that practitioner the patient is incapable in relation to a decision as to whether to initiate an appeal; and
(b) a written statement from the person make the appeal stating—
(i) that the patient has attained the age of 16 years and has no named person;
(ii) which of the categories of person who may initiate the appeal by virtue of a provision giving a listed initiator authority to act the person falls within; and
(iii) that the patient has not made a written declaration which precludes the person from initiating the appeal by virtue of that provision.
(3) A reference in these Rules to a provision giving a listed initiator authority to act is a reference to—
(a) section 257A of the Mental Health (Care and Treatment) (Scotland) Act 2003( a);
(b) regulation 8A of the Mental Health (England and Wales Cross-border transfer; patients subject to requirements other than detention) (Scotland) Regulations 2008( b); and
(c) regulation 13A of the Mental Health (Cross-border transfer; patients subject to detention requirement or otherwise in hospital) (Scotland) Regulations 2005( c).

Application

2. These Rules apply to all proceedings before the Upper Tribunal under the 2003 Act.

Part 2
Role of The Upper Tribunal

Purpose of the Upper Tribunal

3. The Upper Tribunal hears and decides cases transferred to it from the First-tier Tribunal and hears and decides appeals from the First-tier Tribunal.

Part 3
Procedure for Cases in the Upper Tribunal
Notice of appeal against a decision of the First-tier Tribunal

4. —(1) A person may lodge with the Upper Tribunal a notice of appeal against a decision of the First-tier Tribunal.
(2) A notice of appeal must—
(a) identify the decision of the First-tier Tribunal to which it relates;
(b) identify the alleged error or errors of law in the decision; and
(c) state whether the person is content for the Upper Tribunal to decide the case without a hearing.
(3) The appellant must provide with the notice of appeal a copy of—
(a) any written record of the decision being challenged;
(b) any separate written statement of reasons for that decision; and
(c) the notice of permission to appeal or alternatively notice of refusal of permission to appeal from the First-tier Tribunal.
(4) Where the notice of appeal is made by virtue of a provision giving a listed initiator authority to act, the listed initiator requirement in rule 1(2) must be complied with.
(5) When the Upper Tribunal receives a notice of appeal it must fix a hearing and send to each respondent and interested party (if any)—
(a) a copy of the notice and any accompanying documents; and
(b) notice of the date and time of a hearing.
(6) If the appellant lodges the notice of appeal with the Upper Tribunal later than the time required by paragraph (8)—
(a) the notice of appeal must:
(i) include a request for an extension of time;
(ii) explain why the notice of appeal was not provided in time; and
(iii) state why it is said to be in the interests of justice that the time be extended; and
(b) unless the Upper Tribunal extends the time for lodging a notice of appeal the Upper Tribunal may not admit the notice of appeal.
(7) The Upper Tribunal may, where the First-tier Tribunal has refused permission to appeal and the Upper Tribunal has held a hearing—
(a) refuse permission to appeal;
(b) give permission to appeal; or
(c) give permission to appeal on limited grounds or subject to conditions;
and must send a notice of its decision to each party and any interested party including reasons for any refusal of permission or limitations or conditions on any grant of permission.
(8) Where the First-tier Tribunal sends a notice of permission or refusal of permission to appeal to a person who has sought permission to appeal, that person, if intending to appeal, must provide a notice of appeal to the Upper Tribunal within 14 days after the day of receipt by that person of the notice of permission or refusal of permission to appeal.

Response to the notice of appeal

5. —(1) Subject to any order given by the Upper Tribunal, a respondent may provide a written response to a notice of appeal.
(2) Any response provided under paragraph (1) must be sent or delivered to the Upper Tribunal so that it is received no later than 14 days after the day on which the Upper Tribunal sent a copy of the notice of appeal to the respondent.
(3) The response must state—
a) the name and address of the respondent;
(b) the name and address of the representative (if any) of the respondent;
(c) an address where documents for the respondent may be sent or delivered;
(d) whether the respondent opposes the appeal;
(e) the grounds on which the respondent relies, including (in the case of an appeal against the decision of the First-tier Tribunal) any grounds on which the respondent was unsuccessful in the proceedings which are the subject of the appeal, but intends to rely in the appeal; and
(f) whether the respondent consents to the case being heard without a hearing.
(4) If the respondent provides the response to the Upper Tribunal later than the time required by paragraph (2) or by an extension of time allowed under rule 7(3)(a) (power to extend time), the response must include a request for an extension of time and the reason why the response was not provided in time.
(5) When the Upper Tribunal receives the response it must send a copy of the response and any accompanying documents to the appellant and any interested party.

Cases transferred to the Upper Tribunal

6. —(1) Paragraphs (2) and (3) apply to a case transferred to the Upper Tribunal from the First-tier Tribunal.
(2) In such a case—
(a) the Upper Tribunal must give directions as to the procedure to be followed in the consideration and disposal of the proceedings;
(b) the preceding rules in this Part will only apply to the proceedings to the extent provided for by such directions.
(3) If a case or matter is to be determined without notice to or the involvement of a respondent—
(a) any provision in these Rules requiring a document to be provided by or to a respondent; and
(b) any other provision in these Rules permitting a respondent to participate in the proceedings,
does not apply to that case or matter.

Part 4
General Powers and Provisions

Case management

7. —(1) Subject to the provisions of the 2014 Act and these Rules, the Upper Tribunal may regulate its own procedure.
(2) The Upper Tribunal may give a direction in relation to the conduct of proceedings before it at any time, including a direction amending, suspending or setting aside an earlier direction.
(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may—
(a) extend or shorten the time for complying with any rule, direction or order;
(b) conjoin or take concurrently two or more sets of proceedings or parts of proceedings raising common issues;
(c) specify one or more cases as a lead case or lead cases where—
(i) two or more cases are before the Upper Tribunal;
(ii) in each such case the proceedings have not been finally determined; and
(iii) the cases give rise to common or related issues of fact or law,
and sist the other cases until the common or related issues have been determined;
(d) permit or require a party to amend a document;
(e) permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party;
(f) deal with an issue in the proceedings as a preliminary issue;
(g) hold a hearing to consider any matter, including a case management issue;
(h) decide the form of any hearing;
(i) adjourn or postpone a hearing;
(j) require a party to produce or lodge documents including but not confined to a note of argument and the Appeal Appendix;
(k) sist proceedings;
(l) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and—
(i) because of a change of circumstances since the proceedings were started, the Upper Tribunal no longer has jurisdiction in relation to the proceedings; or
(ii) the Upper Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case;
(m) suspend the effect of its own decision pending an appeal of that decision;
(n) in an appeal against the decision of the First-tier Tribunal, suspend the effect of that decision pending the determination of any permission to appeal or any appeal;
(o) require the First-tier Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before the First-tier Tribunal.

Procedure for applying for and giving directions

8. —(1) The Upper Tribunal may give a direction on the application of one or more of the parties or on its own initiative.
(2) An application for a direction may be made—
(a) by sending or delivering a written application to the Upper Tribunal; or
(b) orally during the course of a hearing.
(3) An application for a direction must include the reason for making that application.
(4) Before making a direction, the Upper Tribunal must afford parties an opportunity to make representations to it concerning whether the direction should be imposed and the terms of the direction.

Failure to comply with rules etc.

9. —(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a direction, a practice direction or an order, does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a direction, a practice direction or an order, the Upper Tribunal may take such action as it considers just, which may include—
(a) waiving the requirement;
(b) requiring the failure to be remedied; or
(c) exercising its power under rule 10 (dismissal of a party’s case).

Dismissal of a party’s case

10. —(1) The Upper Tribunal must dismiss the whole or a part of the proceedings if the Upper Tribunal—
(a) does not have jurisdiction in relation to the proceedings or that part of them; and
(b) does not exercise its power under rule 7(3)(l)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.
(2) The Upper Tribunal may dismiss the whole or a part of the proceedings if—
(a) the appellant has failed to comply with an order which stated that failure by the appellant to comply with the order could lead to the dismissal of the proceedings or part of them; or
(b) the appellant has failed to co-operate with the Upper Tribunal to such an extent that the Upper Tribunal cannot deal with the proceedings fairly.
(3) The Upper Tribunal may not dismiss the whole or a part of the proceedings under paragraph (1) or (2) without first giving the appellant an opportunity to make representations in relation to the proposed dismissal.

Addition, substitution and removal of parties

11. —(1) The Upper Tribunal may give a direction adding, substituting or removing a party as an appellant or a respondent including where—
(a) the wrong person has been named as a party; or
(b) the addition, substitution or removal has become necessary because of a change in circumstances since the start of proceedings.
(2) If the Upper Tribunal gives a direction under paragraph (1) it may give such consequential directions as it considers appropriate.
(3) A person who is not a party may make a written application to the Upper Tribunal to be added or substituted as a party under this rule.
(4) If the Upper Tribunal refuses an application under paragraph (3) it must consider whether to permit the person who made the application to provide submissions or evidence to the Upper Tribunal.

Orders for expenses

12. —(1) The Upper Tribunal may make an order for expenses as taxed by the Auditor of the Court of Session in proceedings on appeal from the First-tier Tribunal if the First-tier Tribunal had the power to make an order for expenses, and only on the basis on which the First-tier Tribunal had the power to award expenses.
(2) Notwithstanding paragraph (1) and without prejudice to that paragraph, the Upper Tribunal may make an order for expenses as taxed by the Auditor of the Court of Session against a party if that party’s act, omission or other conduct has caused any other party to incur expense which it would be unreasonable for that other party to be expected to pay, with the maximum recoverable expenses being the expenses incurred.
(3) The Upper Tribunal, of its own initiative or on the application of a party or the parties, may in exceptional circumstances fix by order a sum payable by a party in discharge of an award of expenses.

Representatives

13. —(1) A party may be represented in any proceedings by a lay representative or legal representative whose details must be communicated to the Upper Tribunal prior to any hearing.
(2) A party may show any document or communicate any information about the proceedings to that party’s lay representative or legal representative without contravening any prohibition or restriction on disclosure of the document or information.
(3) Where a document or information is disclosed under paragraph (2), the lay representative or legal representative is subject to any prohibition or restriction on disclosure in the same way that the party is.
(4) Anything permitted or required to be done by a party under these Rules, a direction, a practice direction or an order may be done by a lay representative or legal representative, except signing of an affidavit or a precognition.
(5) The Upper Tribunal may order that a lay representative is not to represent a party if—
(a) it is of the opinion that the lay representative is an unsuitable person to act as a lay representative (whether generally or in the proceedings concerned); or
(b) it is satisfied that to do so would be in the interests of the efficient administration of justice.

Curator ad litem

14. —(1) A curator ad litem may be appointed by the Upper Tribunal where any of the circumstances in paragraph (2) apply to proceedings before the Upper Tribunal.
(2) The circumstances are—
(a) the patient does not have the capacity to instruct a legal representative in the proceedings;
(b) an appeal to the Upper Tribunal has been initiated by virtue of a provision giving a listed initiator authority to act; or
(c) where a case has been transferred to the Upper Tribunal from the First-tier Tribunal, the case was initiated before the First-tier Tribunal by virtue of a provision giving a listed initiator authority to act.

Supporters

15. —(1) A party who is an individual may be accompanied by another person to act as a supporter.
(2) A supporter may assist the party by—
(a) providing moral support;
(b) helping to manage tribunal documents and other papers;
(c) taking notes of the proceedings;
(d) quietly advising on—
(i) points of law and procedure;
(ii) issues which the party might wish to raise with the tribunal.
(3) The party may show any document or communicate any information about the proceedings to that party’s supporter without contravening any prohibition or restriction on disclosure of the document or information.
(4) Where a document or information is disclosed under paragraph (3), the supporter is subject to any prohibition or restriction on disclosure in the same way that the party is.
(5) A supporter may not represent the party.
(6) The Upper Tribunal may direct that a person is not to act as a supporter of a party if—
(a) it is of the opinion that the supporter is an unsuitable person to act as a supporter (whether generally or in the proceedings concerned); or
(b) it is satisfied that to do so would be in the interests of the efficient administration of justice.

Calculating time

16. —(1) An act required by these Rules, a direction, a practice direction or an order to be done on or by a particular day must be done by 5pm on that day.
(2) If the time specified by these Rules, a direction, a practice direction or an order for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.
(3) In this rule "working day" means any day except a Saturday, a Sunday, or a bank holiday in Scotland under section 1 of the Banking and Financial Dealings Act 1971( a).

Sending and delivery of documents

17. —(1) Any document to be provided to the Upper Tribunal under these Rules, a direction, a practice direction or an order must be—
(a) sent by pre-paid post or by document exchange, or delivered by hand, to the address of the Upper Tribunal; or
(b) sent or delivered by such other method as the Upper Tribunal may permit or direct.
(2) Subject to paragraph (3), if a party or an interested party provides a fax number, email address or other details for the electronic transmission of documents to them, that party or interested party must accept delivery of documents by that method.
(3) If a party or an interested party informs the Upper Tribunal and all other parties and interested parties that a particular form of communication, other than pre-paid post or delivery by hand, should not be used to provide documents to that party or interested party, that form of communication must not be so used.
(4) If the Upper Tribunal or a party or an interested party sends a document to a party or interested party or the Upper Tribunal by email or any other electronic means of communication, the recipient may request that the sender provide a hard copy of the document to the recipient. The recipient must make such a request as soon as reasonably practicable after receiving the document electronically.
(5) The Upper Tribunal and each party and interested party may assume that the address provided by a party or interested party or its representative is and remains the address to which documents should be sent or delivered until receiving written notification to the contrary.

Disclosure of documents and information

18. —(1) Subject to paragraph (2), the public disclosure of any aspect of proceedings before the Upper Tribunal under these Rules is prohibited.
(2) The Upper Tribunal may at any stage of the proceedings, on its own initiative or on application by one or more of the parties or any interested party, make a direction allowing the public disclosure of any aspect of those proceedings so far as it considers appropriate.

Evidence and submissions

19. —(1) Without restriction on the general powers in rule 7 (case management powers), the Upper Tribunal may give directions as to—
(a) subject to paragraph (4), issues on which parties may lead fresh evidence or make submissions;
(b) the nature of any such evidence;
(c) whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;
(d) any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;
(e) the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given—
(i) orally at a hearing; or
(ii) by witness statement or written submissions; and

(f) the time at which any evidence or submissions are to be provided.
(2) The Upper Tribunal may exclude evidence that would otherwise be admissible where—
(a) the evidence was not, without reasonable excuse, provided within the time allowed by an order or a practice direction;
(b) the evidence was otherwise, without reasonable excuse, provided in a manner that did not comply with an order or a practice direction; or
(c) it would otherwise be unfair to admit the evidence.
(3) The Upper Tribunal may consent to a witness giving, or require any witness to give, evidence on oath or affirmation, and may administer an oath or affirmation for that purpose.
(4) Fresh evidence may only be led in an appeal if the Upper Tribunal is satisfied—
(a) that the evidence—
(i) could not have been obtained with reasonable diligence at the First-tier Tribunal stage;
(ii) is relevant and will probably have an important influence on the hearing; and
(iii) is apparently credible; or
(b) that the interests of justice justify the evidence being led.

Citation of witnesses and orders to answer questions or produce documents

20. —(1) On the application of a party or on its own initiative, the Upper Tribunal may—
(a) by citation require any person to attend as a witness at a hearing at the time and place specified in the citation; or
(b) direct any person to answer any questions or produce any documents in that person’s possession or control which relate to any issue in the proceedings.
(2) A citation under paragraph (1)(a) must—
(a) give the person required to attend 14 days’ notice prior to the day of the hearing or such other period as the Upper Tribunal may direct;
(b) where the person is not a party, state (if appropriate) how expenses of attendance necessarily incurred may be recovered;
(c) state that the person on whom the requirement is imposed may apply to the Upper Tribunal to vary or set aside the citation or direction, if the person did not have an opportunity to object to it before it was made or issued; and
(d) state the consequences of failure to comply with the citation or direction.
(3) A person making an application referred to in paragraph (2)(c) must do so as soon as reasonably practicable after receiving notice of the citation or direction.

Withdrawal

21. —(1) A party may give notice to the Upper Tribunal of the withdrawal of the case made by that party in the Upper Tribunal proceedings, or any part of that case—
(a) by sending or delivering to the Upper Tribunal a notice of withdrawal; or
(b) orally at a hearing.
(2) Unless satisfied that a party has already been notified, the Upper Tribunal must notify each party of its receipt of a withdrawal under this rule.

Chairing member

22. Where a matter is to be decided by two or more members of the Upper Tribunal, the President must determine the chairing member.

Venue for hearings

23. The Upper Tribunal is to be convened at such time and place in Scotland as the President may determine.

Enforcement of decisions

24. An order for the payment of a sum payable in pursuance of a decision of the Upper Tribunal, or a copy of such an order certified by the Upper Tribunal, may be enforced as if it were an extract registered decree arbitral bearing a warrant for execution issued by the Court of Session.

Part 5
Hearings

Hearings

25. —(1) Subject to paragraph (2), the Upper Tribunal will make any decision with a hearing.
(2) Where all parties have consented to a decision being made without a hearing, the Upper Tribunal may make such a decision without a hearing.

Entitlement to attend a hearing

26. Subject to rules 13(5) (representatives) and 15(6) (supporters) and 28 (public and private hearings), each party and interested party is entitled to participate at a hearing together with any legal or lay representatives and supporters permitted by rules 13 and 15.

Notice of hearings

27. —(1) The Upper Tribunal must give each party and interested party entitled to attend a hearing reasonable notice of the time and place of the hearing (including any adjourned or postponed hearing) and any change to the time and place of the hearing.
(2) The period of notice under paragraph (1) must be at least 7 days (and not more than 14 days) prior to the day of the hearing, except that the Upper Tribunal may give shorter notice—
(a) with the consent of the parties and interested parties; or
(b) in urgent or exceptional circumstances.

Public and private hearings

28. —(1) Subject to the paragraph (2), all hearings must be held in private.
(2) The Upper Tribunal may direct that a hearing, or part of it, is to be held in public where-
(a) a party to the proceedings has applied in writing for the hearings, or part of it , to be held in public; and
(b) the Upper Tribunal considers that holding the hearing in public, as specified in the application, would not be detrimental to the patient’s welfare.
(3) The Upper Tribunal may give a direction excluding from any hearing, or part of it—
(a) any person whose conduct the Upper Tribunal considers is disrupting or is likely to disrupt the hearing;
(b) any person whose presence the Upper Tribunal considers is likely to prevent another person from giving evidence or making submissions freely; or
(c) any person where the purpose of the hearing would be defeated by the attendance of that person.

Hearings in a party’s absence

29. If a party fails to attend a hearing, the Upper Tribunal may proceed with the hearing if the Upper Tribunal—
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.

Part 6
Decisions

Notice of decisions and reasons

30. —(1) Subject to the remainder of this rule, the Upper Tribunal may give a decision orally at a hearing.
(2) The Upper Tribunal must provide to each party and interested party within 14 days of making a decision (other than a decision under Part 7) which finally disposes of all issues in the proceedings or on a preliminary issue dealt with following an order under rule 7(3)(f)—
(a) a decision notice stating the Upper Tribunal’s decision; and
(b) notification of any rights of appeal against the decision and the time and manner in which such rights of appeal may be exercised.
(3) Subject to these Rules, the Upper Tribunal may publish any of its decisions if it considers it in the public interest so to do, with the manner of publication also at the discretion of the Upper Tribunal.

Review of a decision

31. No review of a decision of the Upper Tribunal is available under these Rules.

Part 7
Appealing Decisions of the Upper Tribunal

Interpretation of this Part

32. In this Part, "appeal" means the exercise of a right of appeal under section 48(1) of the 2014 Act.

Application for permission to appeal a decision of the Upper Tribunal

33. —(1) A party seeking permission to appeal must make a written application to the Upper Tribunal.
(2) An application under paragraph (1) must—
(a) identify the decision of the Upper Tribunal to which it relates;
(b) identify the alleged error or errors of law in the decision; and
(c) state in terms of section 50(4) of the 2014 Act what important point of principle or practice would be raised by a second appeal or what other compelling reason there is that shows the appeal should be allowed to proceed.

Upper Tribunal’s consideration of application for permission to appeal

34. —(1) The Upper Tribunal must consider whether to give permission to appeal in relation to the decision or part of it.
(2) The Upper Tribunal must provide a record of its decision to the parties and any interested party as soon as practicable.
(3) If the Upper Tribunal refuses permission to appeal it must provide with the record of its decision—
(a) a statement of its reasons for such a refusal; and
(b) notification of the right to make an application to the Court of Session for permission to appeal and the time within which, and the method by which, such application must be made
(4) The Upper Tribunal may give permission to appeal on limited grounds, but must comply with paragraph (3) in relation to any grounds on which it has refused permission.

Part 8
Legal Aid

Legal aid

35. If a party is granted legal aid by the Scottish Legal Aid Board in respect of a case before the Upper Tribunal that party must as soon as practicable send a copy of the legal aid certificate to the Upper Tribunal.

Explanatory Note

(This note is not part of the Regulations)

These Regulations make the Upper Tribunal for Scotland Mental Health Rules of Procedure 2018. The Rules regulate the practice and procedure to be followed in the Upper Tribunal for Scotland when dealing with proceedings under the Mental Health (Care and Treatment) (Scotland) Act 2003.

All other proceedings before the Upper Tribunal are subject to the Upper Tribunal for Scotland Rules of Procedure 2016 (in S.S.I. 2016/232).

The Upper Tribunal hears appeals from, and cases transferred to it by, the First-tier Tribunal for Scotland. An appeal to the Upper Tribunal requires first the permission of the First-tier Tribunal, failing which the permission of the Upper Tribunal. An appeal can be on a point of law only.


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