The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005

[F1 Withholding documents or reports from disclosure at initiative of the Tribunal in exceptional circumstances S

47.— (1) This rule applies to documents or reports received by the Tribunal where the Convener or the Tribunal is concerned that disclosure of all or any part of the contents of a document or report–

(a) may cause serious harm to the patient or any other person such that it would be wrong to disclose it to the patient or another person; but

(b) that in all the circumstances it would nevertheless not be unfair if the document or report or that part of it is considered by the Tribunal.

(2) The Convener or the Tribunal may appoint a person having appropriate skills or experience to–

(a) assess whether disclosure of the document or report to a patient or another person may cause serious harm; and

(b) report to the Convener or the Tribunal, as the case may be, on the matter.

(3) The Tribunal shall pay to an expert appointed under paragraph (2) such an amount in respect of necessary expenses incurred in preparing and producing any report, as the President shall direct.

(4) If the Convener or the Tribunal is satisfied, taking into account the report of any expert appointed under paragraph (2), as to the matters specified in paragraph (1), the Convener or the Tribunal, as the case may be, shall determine whether the document, report, or any part of it, is not to be disclosed and may direct that–

(a) the document or report may be considered by the Tribunal; and

(b) all or any part of its contents must not be disclosed to such persons as specified by the Convener or the Tribunal.

(5) The Tribunal shall notify the representative of the patient or other person to whom the document, report or any part of it is not to be disclosed, that such a decision has been made, and the reasons for that decision.

(6) Where a decision is made under this rule not to disclose a document, report or any part of it to a patient and the patient does not have a representative to represent their interests, a curator ad litem may be appointed under rule 55(1).

(7) After rule 72(5) insert–

“(5A) Paragraph 5B applies to decisions made by the Tribunal in relation to applications or references under sections 50(1), 63(1), 92, 95, 98(2), 99(1), 100(2), 120(2), 149, 158, 161, 162(2), 163(1), 164(2), 185(1), 187(2), 189(2), 191, 192(2), 210(3), 211(2), 213(2), 214(2), 255(4), (6) and (7), 256(1), 264(2), 267(2), 268(2), 271(2) and 291(2) of the Act but does not apply in relation to any such applications which are not granted by the Tribunal.

(5B) Where a copy of a decision is sent to the Commission under paragraph (5) the Clerk shall at the same time send to the Commission a copy of:–

(a) the application or reference (as the case may be); and

(b) in the case of an application, any mental health report that is required under the Act to accompany that application.”

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Textual Amendments

F1 Rules 46, 46A, 47 substituted for rules 46, 47 (20.12.2008) by The Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Amendment Rules 2008 (S.S.I. 2008/396), rules 1, 2(3)