Explanatory Note
(This note is not part of the Rules)
These Rules further amend the Mental Health Tribunal for Scotland (Practice and Procedure) (No. 2) Rules 2005 (“the principal Rules”), which make provision as to the practice and procedure of the Mental Health Tribunal for Scotland.
Rule 2(2) amends rule 42 of the principal Rules (disqualification), by inserting a new paragraph (2) to provide that a person shall not be regarded as employed by or contracted to provide services in or to a hospital or, independent healthcare service, and therefore disqualified from serving as a member of a tribunal for the purposes of rule 42(1)(a), unless that person works wholly or mainly in a hospital or independent healthcare service.
Rule 2(3) replaces rules 46 (distribution and disclosure of documents) and 47 (withholding documents or reports from disclosure in exceptional circumstances) of the principal Rules, to introduce three new separate rules on these matters: rules 46, 46A and 47. New rule 46 provides for the distribution of documents only. Rule 46A provides the procedure for resolving requests to the Tribunal for the non disclosure of documents. Rule 47, which provides for the withholding of documents by the Tribunal in exceptional circumstances, is replaced in amended form to eliminate the previous requirement for the Convener or Tribunal to afford the parties an opportunity to make representations on documents which they have not seen.
Rule 2(4) makes an amendment to rule 59(7)(b) of the principal Rules (production of documents), consequential on the amendments made at rule 2(3) as above.
Rule 2(5) substitutes the reference to the Council on Tribunals in rule 66(6)(c) (hearings in public or private) with a reference to the new Administrative Justice and Tribunals Council.
Rule 2(6) amends rule 72(5) of the principal Rules (decision of the tribunal) to provide that the Clerk of the Tribunal shall send a copy of the decision to the Mental Welfare Commission or, if appropriate, the court within 21 days of the date on which the decision is signed by the Convener.
Rule 2(7) introduces a new rule 72(5A) into the principal Rules, which provides 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) that where a copy of a decision is to be sent to the Mental Welfare Commission the Clerk shall at the same time send a copy of the application and accompanying medical reports and, in the case of a reference, send a copy of the reference to the Mental Welfare Commission along with the copy of the decision. It does not apply to any applications where the application is not granted by the Tribunal.