New Tribunal Procedure Committee consultation: Levelling the playing field for hospital-based patients

The Tribunal Procedure Committee are consulting on proposed changes to Rule 35 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 by amending the restrictions on cases that can be decided without a hearing.

Paper hearings for hospital-based patients

This amendment would mean that cases involving hospital-based patients, including restricted patients, with capacity, who have been referred to the Tribunal to consent to the reference being decided on the papers.

Benefits of the proposed amendment

The TPC suggests that this change would:

• “give patients the right to determine how they want their case to be considered by the Tribunal and protects their right to privacy and dignity. The hearing would only be conducted on the papers if it was not reasonably practicable to hold the hearing because the patient did not want to attend or be represented and it was in the interests of justice to hold a hearing on the papers”; and
• “respect the autonomy of those in hospital in the same way as community patients”

Overall, the TPC say that “[t]he most important consideration is to ensure patients in hospital are afforded the same right to privacy and dignity as those in the community.”

However, the TPC does consider that a safeguarding issue may arise in connection with the proposed rule change.

They are aware that patients detained in hospitals may often refuse to engage with the Tribunal process. Therefore, "the ability to deal with references on the papers would benefit such patients, but it may be thought that there is a limit to the number of occasions on which a reference should be dealt with on the papers without providing the opportunity for a hearing which would provide additional scrutiny."

Any amendments would need to factor in the Mental Health Bill which the TPC accept "may not be appropriate if the references occur only every three years as now as a patient in hospital may then have an oral hearing only every 6 years". Section 28 of the Mental Health Bill provides for references to the Tribunal every 12 months rather than every 3 years as is currently the case.

The TPC is keen to hear from stakeholders on the need to include safeguarding measures and what those measures should involve.

You can respond to the consultation questionnaire here and by 29 August 2023 when it closes.

This blog was written with the support of  Nihkel Dosanjh , trainee solicitor.