10 September 2020
Extension of Practice Direction issued by NI Review Tribunal Chair
The Mental Health (Northern Ireland) Order 1986 / The Mental Health Review Tribunal (Northern Ireland) Rules 1986
1. In accordance with Rule 13 of the Mental Health Review
Tribunal (Northern Ireland) Rules 1986, the Chairman of the Review Tribunal revises
the Practice Direction dated the 25th
March 2020 (which was extended to the 9th September) (“the Practice
Direction”) and extends it for a period of 12 weeks expiring on the 2nd
December 2020) so as to manage the
continuation of hearings during the ongoing Covid19 pandemic.
2. The revised Practice Direction is set out in Schedule
1.
3. The Practice Direction is set out in Schedule 2 for
ease of reference.
4. If circumstances change so as to permit a safe return
to face to face hearings prior to the expiration of the direction, the Chairman
will issue a revised direction. In the alternative the practice direction may
be revised from time to time or further extended.
Dated
the 9th September 2020
Signed
Attracta Wilson
Chairman
Schedule 1
The Mental Health (Northern Ireland) Order
1986
The Mental Health Review Tribunal (Northern Ireland)
Rules 1986
Practice
Direction
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 made in accordance with Part
V of that Order.
2.So
as to manage the continued exercise by the Tribunal
of its statutory function enabling the
UK’s compliance with Article 5 ECHR during the COVID19 pandemic, 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 take effect from the 9th September 2020 for a period of
12 weeks. The changes will apply to all applications and referrals made on or after
that date. The Practice direction dated the 9th March 2020 and
extended to the 9th September 2020 as recited in Schedule 2 will
apply to applications and referrals received prior to that date.
4.If
circumstances change prior to the 2nd December 2020 this direction may be
revised from time to time or may be extended beyond that date if that is deemed
necessary.
5.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.
6. 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 (“the
Rules”).
7.
Legal representatives are advised to anticipate such consent being
sought and seek early instructions so as to minimise
delay.
8.Medical
examinations in accordance with Rule 11 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.
9.
All reasonable efforts must be made to facilitate a conversation between the
Patient and the Medical Member for the purposes of the examination. If there is
no contact between the Patient and the Medical Member, the Tribunal must be
provided with a reasonable explanation from the parties as to why not, so as to
properly ensure the Patient’s
right to a fair hearing.
10.
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 made by the Medical Member.
11. In
cases where there is a conflict between the Medical Member’s preliminary
opinion and the opinion of the Responsible Medical Officer as detailed in the
medical report, 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 so as to afford the parties time to
share information and obtain instructions in advance of the hearing. The Trust must
provide a written response 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. The response must be furnished to the
Patient or their legal representative and to the Tribunal.
12. The
hearing will be conducted remotely by telephone,
skype or facetime or other such technology as is available to all
parties. The means of participation must 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. In
determining the means of participation, the Tribunal is mindful of the need to
minimise distress to the Patient and will welcome and consider any submissions
from the parties and in particular from the Patient as to the most suitable
medium to accommodate their needs and facilitate their full participation in
the interests of a fair hearing.
13.
All reports relied upon by the Trust must be forwarded at least 14 days prior
to the hearing in accordance with the Rules. Any update must be provided as
soon as practicable and no later than 11 am on the morning of the hearing. The update must be provided by way of e mail
to the Patient or their legal representative and the Tribunal if it is material
to the case. 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 and timely request for an abridgement of time shall be
given due consideration by the President allocated to the
case.
14.
Any reports or other documentation which the Patient proposes to rely on must
be furnished to the Trust and the Tribunal as soon as practicable and at least
48 hours prior to the hearing so as to minimize the need for breaks in
proceedings for the purposes of seeking instructions. Any reasonable
request for an abridgement of time to
furnish such reports or information will be
given due consideration by the President allocated to the case.
15. All
parties to include the witnesses must be available online / on telephone
promptly at the time fixed for the hearing.
16.
At hearing the Trust witnesses will be expected to 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 circumstances where clarification is deemed
necessary to discharge the burden of proof or exceptional circumstances arise.
17.
The parties will be given an opportunity to examine and cross examine witnesses
relative to developments since the dates of the reports. Where practicable
without compromising the Trust case 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.
18.
Cross examination of the witnesses will otherwise proceed in the usual way with
an expectation that any evidence relied upon to challenge the evidence
contained in the reports will be disclosed to the Trust and furnished the
Tribunal in advance of the hearing to facilitate the taking of instructions .
19.
The Patient will be invited to address the Tribunal in accordance with the
Rules. Closing submissions will follow and
where those submissions are detailed or where they introduce novel arguments,
they must be provided in writing.
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 must 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. If the Patient is unrepresented and does not have access to e
mail, arrangements will be made by the secretariat to ensure that the Patient
is informed of the decision immediately following the hearing.
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 9th September 2020
Signed
Attracta Wilson
Chairman
Schedule 2
The
Mental Health (Northern Ireland) Order 1986
The
Mental Health Review Tribunal (Northern Ireland) Rules 1986
Practice
Direction
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 and extended
Signed
Attracta Wilson
Chairman