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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 25th March 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 constituted. 

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 delay. 

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 hearing. 

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 hearing.  

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. 

19. The Patient will be invited to address the Tribunal in the usual manner. Closing   submissions will follow in the usual manner.

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 appropriate. 

Dated the 25rd March 2020 


 

Signed Attracta Wilson 

Chairman 

 



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