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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 


 



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