25 March 2020
Practice Direction - The Mental Health (Northern Ireland) Order 1986
The Mental Health Review Tribunal (Northern Ireland) Rules 1986
1.The Review Tribunal (the Tribunal) has a statutory function under the
Mental Health (Northern Ireland) Order 1986
to hear and determine applications and referrals received in accordance with Part
V of that Order.
2.So as to facilitate the continued exercise by the
Tribunal of its statutory function enabling the UK’s compliance with Article 5
ECHR during the COVID 19 crisis, the Chairman, in accordance with Rule
13 of the Mental Health Review Tribunal
(Northern Ireland) Rules 1986 (“the
Rules”) makes the following directions: -
3.The following changes to the procedures of the Tribunal in dealing with applications and
referrals under the Order will be implemented and remain in place for 12 weeks from the
2020. The changes will apply to all applications and referrals made after the
25th March and all applications and referrals received prior to that
date but not yet listed for hearing. If
circumstances change during this period
these changes may be revised from time to time or they may be extended beyond
that date if that is deemed necessary.
4.Panels will in so far as is possible,
be appointed in the usual way. However if there is a
difficulty in constituting a three person panel for the purposes of any
hearing, consent of the parties will be sought to proceed in reliance on
paragraph 7 of Schedule 3 to the Mental
Health (Northern Ireland) Order 1986 (as inserted by the Mental Capacity Act
(NI) 2016) which provides as follows:-“In any proceedings which are to be
heard and determined by the Review Tribunal constituted as mentioned in
paragraph 4(1) or (2)(a), the proceedings may with the consent of the parties
be heard and determined in the absence of any one member other than the
president, and in that event the tribunal is to be treated as properly
5. If paragraph 7 of Schedule 3 is relied upon, the panel will be
made up of a president and a medical member. A medical member is required in
preference to an experienced member by reason of the requirement for a medical
examination under the Mental Health Review Tribunal Rules of Procedure
(Northern Ireland )1986.
6. Legal representatives are advised to anticipate such consent
being sought and seek early instructions so as to minimise
7. Medical examinations will be
conducted by way of a telephone conversation, facetime, skype or other
technology facilitating remote communication (the conversation). The conversation
will be between the medical member and a member of
nursing staff who is familiar with the patient and has access to their notes, Kardex and
records. The timing of the conversation and
identification of the appropriate member of
nursing staff must be settled between the Review
Tribunal Secretariat (the Secretariat), the medical member and the relevant trust at least 24 hours prior to the scheduled
8. All reasonable efforts must be made to facilitate a telephone, facetime,
skype call or other call between the Patient and the Medical Member. If there
is no contact between the Patient and the Medical Member, the Tribunal will
require a reasonable explanation from the parties as to why not, so as to properly
ensure the Patient’s right to a fair
9. All relevant medical notes and records relative
to the Patient to include their Kardex must be available at the time of the conversation so as to provide a
response to any enquiries by the Medical Member.
10. In cases where there is an inconsistency between the Medical
Member’s preliminary opinion and the opinion of the RMO, the Tribunal
will immediately inform the parties of the preliminary
opinion. The Tribunal will also immediately inform the parties of any factual
differences between the evidence as contained in the reports and
information coming to the attention of the Medical Member during the examination. The parties will provide written submissions addressing any such
matters as soon as practicable in advance of the hearing and no later than 11
AM on the morning of the hearing.
11. The hearing will be conducted remotely by telephone,
skype or facetime or other such technology with the panel. The means of
participation will be agreed between the parties, the panel and the Secretariat
at least 24 hours in advance of the hearing so as to ensure availability and
facilitate testing of technology.
12. All reports relied upon by the Trust must be forwarded at
least 14 days prior to the hearing. Any update may be provided as soon as
practicable and no later than 11 AM early on the morning of the hearing. If practicable the update will be provided by
way of e mail to the Patient or their legal representative and the Tribunal. Deadlines
for the provision of reports will be strictly enforced so as to allow the
Tribunal to fulfil its statutory role in protecting the Patient’s human rights.
However, the Tribunal recognises the pressure all Trust employees and
healthcare staff are currently operating under and so any reasonable request
for an extension of time shall be given due consideration by the President allocated to the case.
13. If the Patient is represented, written submissions in response
to the Trust evidence must be furnished by the legal representatives to the
Trust and the Tribunal as soon as practicable and at least 48 hours prior to
the hearing. Any reasonable request for an extension of time shall be given due consideration
by the President allocated to the case.
14. All parties to include the witnesses must be available online / on
telephone promptly at the time fixed for the hearing.
15. At hearing the Trust witnesses will adopt their reports and give oral evidence of any developments since those reports were
completed. Their evidence will not otherwise be rehearsed in direct examination
save in exceptional circumstances. If exceptional circumstances arise those
circumstances must, where possible, be outlined in writing in advance of the
hearing and will be given due consideration by the Tribunal.
16. The parties will be given an opportunity to examine and cross
examine witnesses relative to developments since the dates of the reports.
Ideally one of the Trust witnesses should be designated to give evidence
relative to such developments so as to minimise delay and avoid duplication of evidence.
17. Cross examination of the witnesses will otherwise proceed in
the usual way with an expectation that the points to be tested in cross
examination will be consistent with those contained in the written submissions
referred to a paragraph 13 above.
The Patient will be invited to address the Tribunal in the usual manner.
Closing submissions will follow in the
20. The Tribunal will take all reasonable steps so as to minimise
distress to the Patient whilst not compromising the fairness of the hearing.
21. Postponement requests or requests for extension of time to
provide reports/submissions wherever possible should be made well in advance of
the deadline/hearing so as to minimise burdens on already over stretched sectors.
22. The decision of the Tribunal will issue by way of e mail to
the parties on the day of the hearing and written reasons will follow within
the usual timeframe.
23. This practice direction is subject to any legislative change
which may be introduced relative to the business of the Tribunal. In the event
of any such legislative change, this practice direction will be revised as
Dated the 25rd March