Mental Health and Capacity (Review
Tribunal) (Procedure) (Jersey) Order 2018
1 Interpretation
(1) In this
Order –
“application” has the meaning given by Article 4(6)
and except where the context otherwise requires, includes a reference by the
Attorney General or the Minister, and “applicant” is to be
construed accordingly;
“authority’s statement” has the meaning given by
Article 6;
“Capacity Law” means the Capacity and Self-Determination (Jersey)
Law 2016;
“Mental Health Law” means the Mental Health (Jersey) Law 2016;
“overriding objective” is to be construed in accordance
with Article 2;
“P”, in relation to an application for review of a
standard authorization, has the meaning given by Part 5 of the Capacity
Law;
“party” has the meaning given by Article 11(8);
“patient”, in relation to an application, means the
person in respect of whom an application is made and (unless otherwise
specifically provided) includes P;
“practice directions” means general directions given by
the Tribunal in exercise of its powers under Article 10(1);
“responsible authority” means –
(a) in
relation to a patient liable to be detained under the Mental Health Law in an
approved establishment, the manager of the approved establishment;
(b) in
relation to a patient subject to guardianship, the Minister; and
(c) in
relation to P, the manager of the relevant place;
“restricted matter” has the meaning given by Article 7;
“Tribunal” means a Mental Health Review Tribunal
established under Part 7 of the Mental Health Law.
(2) A reference in this
Order to the president of a Tribunal is to be taken as a reference –
(a) to
the Chairman of the Tribunal; or
(b) if
for any reason the Chairman is unable to act, to the Vice-Chairman; or
(c) if
for any reason both the Chairman and Vice-Chairman are unable to act, to such
legal member of the Tribunal as may be appointed by the Bailiff on such terms
(including capacity to act as Chairman) as the Bailiff may see fit.
2 Overriding
objective, and duty of co-operation
(1) The overriding
objective of this Order is to enable a Tribunal to deal with cases fairly and
justly.
(2) Dealing with a case
fairly and justly includes, so far as practicable –
(a) dealing
with the case in ways which are proportionate to the importance of the case,
the complexity of the issues, the anticipated costs and the resources of the
parties;
(b) avoiding
unnecessary formality, and seeking flexibility, in the proceedings;
(c) ensuring
that the parties are able to participate fully in the proceedings;
(d) using
any special expertise of the Tribunal effectively; and
(e) avoiding
delay, so far as compatible with proper consideration of the issues.
(3) In exercising any power
under this Order and in interpreting any relevant rule or practice direction,
the Tribunal must seek to give effect to the overriding objective.
(4) The parties to any
proceedings and their representatives must –
(a) help
the Tribunal to give effect to the overriding objective; and
(b) co-operate
with the Tribunal generally.
3 Alternative
dispute resolution
In relation to an application the Tribunal may, where
appropriate –
(a) bring to the attention
of the parties the availability of any appropriate alternative procedure for
the resolution of a disputed issue; and
(b) if the parties wish,
and provided that to do so is compatible with the overriding objective,
facilitate the use of such a procedure.
4 Form
and manner of applications
(1) Unless otherwise
directed by the Tribunal, an application must be made –
(a) in
accordance with such requirements, as to the form and manner of applications,
as may be set out by the Tribunal in practice directions; or
(b) by a
notice in writing which –
(i) is substantially
to the same effect as any such requirements, and
(ii) complies
with paragraph (2).
(2) A notice in writing
must include, at least –
(a) the
name and address of the applicant;
(b) the
name and address of the patient (if the patient is not the applicant);
(c) the
name and address of the patient’s representative, if any;
(d) the
name and address of any respondent;
(e) a
statement that the applicant (where the applicant is not the Attorney General
or the Minister) has capacity to make the application on his or her own behalf,
and (where applicable) to instruct any representative, or, if such a statement
cannot be made, details of the lack of capacity and a statement of the
relationship of the applicant to the patient;
(f) details
of the decision or exercise of power, or failure to decide or exercise a power,
to which the application relates;
(g) the
result which the applicant is seeking;
(h) the
reasons on which the applicant relies; and
(i) any
further information or documents on which the applicant seeks to reply or which
is required by any applicable practice direction.
(3) The notice under paragraph (1)(b)
must also be accompanied, so far as reasonably practicable, by –
(a) a
copy of any written record of the decision, exercise of power, or failure to
which the application relates; and
(b) any
statement of reasons for the decision, exercise of power or failure which the
applicant has or can reasonably obtain.
(4) The Tribunal or the
responsible authority must on request supply a copy of any applicable form
which may be set out in a practice direction under paragraph (1)(a).
(5) Where the Tribunal
considers that an application purporting to be made under this Article is
defective in any respect, the Tribunal may require the applicant to supply,
within a reasonable time, such information as would in the Tribunal’s
view remedy the defect and enable the Tribunal to consider the application.
(6) In this Article,
“application” means an application for review of a decision, or of
the exercise of a power, under the Mental Health Law or the Capacity Law.
5 Notification
by Tribunal to responsible authority and others
(1) Following receipt of an
application duly made under Article 4, the Tribunal must as soon as
practicable send a copy of the application to the responsible authority.
(2) For the purposes of paragraph (1),
the “application” includes all documents which together provide the
matters required to be supplied under Article 4.
(3) The Tribunal must give
notice of the application –
(a) where
the patient is liable to be detained in an approved establishment, to the
Minister or, as the case may be, to the manager;
(b) where
the patient is subject to guardianship, to the Minister or, as the case may be,
to the private guardian;
(c) in a
case concerning a standard authorization, to the Minister; and
(d) where
the applicant is capable of consenting, and has consented, to such notice being
given –
(i) if the applicant
is a patient under the Mental Health Law, to the person named in the
authority’s statement as exercising the functions of the nearest person,
or
(ii) if
the applicant is P, to P’s nearest relative.
(4) Without prejudice to paragraph (3),
and subject to paragraph (5), in any case in which the Tribunal consider
it would be appropriate (and, where P is concerned, in P’s best interests)
to do so, the Tribunal may give notice of an application to the nearest person
or nearest relative, as the case may be.
(5) Where the intention of
the Tribunal is to give notice under paragraph (4) of an application to
the nearest person or nearest relative, the Tribunal must first, before giving
such notice –
(a) obtain
the patient’s consent, if the patient is capable of consenting to such
notice being given; or
(b) if
the patient is not so capable –
(i) obtain an
understanding, so far as possible, of any views of the patient as to the giving
of such notice, and
(ii) seek
the opinion of the patient’s responsible medical officer or, where P is
concerned, of the manager of the relevant place, as to whether such notice
should be given.
(6) Notice under this
Article may be given –
(a) in
such form and manner as may be further specified in practice directions by the
Tribunal; or
(b) by a
notice in writing which is substantially to the same effect as any specified
form.
(7) In paragraph (5)(3),
“private guardian” means a person, other than the Minister, who
acts as a patient’s guardian under Part 4 of the Mental Health Law.
6 Statement
to be supplied by responsible authority to Tribunal
(1) Within such period of
time (beginning with the date on which the responsible authority receives a
copy of an application) as the Tribunal may direct, and as soon as practicable,
the authority must (subject to Article 7) send to the Tribunal –
(a) the
factual information described in Part A of the Schedule;
(b) the
reports, and any other observations, described in Part B of the Schedule;
and
(c) copies
of all documentary evidence –
(i) in support of the
information, reports and observations mentioned in sub-paragraphs (a) and
(b), or
(ii) otherwise
in support of the decision, exercise of power or failure to which the
application relates,
together referred to as the “authority’s
statement”.
(2) In addition to the
authority’s statement, the responsible authority must, within the same
period as provided by paragraph (1) –
(a) give
the Tribunal, and (subject to paragraph (4)) the applicant, access to such
other documents or information (including in particular, but not limited to,
psychiatric records) as may be in the authority’s possession and relevant
to consideration of the application; and
(b) provide
copies of such documents or information to the Tribunal, and (subject to paragraph (4))
the applicant, upon request.
(3) The Tribunal may, where
necessary and relevant to consideration of the application, direct the
responsible authority to provide to the Tribunal such other documents or
information as may be in the authority’s possession and are specified by
the Tribunal.
(4) The responsible
authority must not give access to, or provide copies of, any document or
information disclosed under paragraph (2) or (3) to an applicant who is a
patient –
(a) in
the case of an application under the Mental Health Law, unless the authority
has first obtained confirmation from the patient’s responsible medical
officer that doing so would not be likely to cause serious harm to the patient
or any other person; or
(b) in
the case of an application by P under the Capacity Law, unless the authority
has first obtained confirmation, from such persons as the authority may
consider appropriate, that doing so would not be likely to cause serious harm
to P or to P’s best interests, or to any other person.
(4) The operation of this
Article and Articles 7 and 8 is without prejudice to any rights of access
to personal information conferred, by the Data Protection (Jersey) Law 2018, upon the applicant as data
subject within the meaning given by that Law.
7 Restricted
matters
(1) Where, in the opinion
of the responsible authority, any matter mentioned in Article 6(1)(a) to
(c) should not be disclosed to the applicant or (if different) the patient (a “restricted
matter”), the authority must –
(a) specify
the restricted matter and either –
(i) so identify the
restricted matter as to ensure that it may be readily separated or excluded
from the rest of the authority’s statement, or
(ii) send
the restricted matter to the Tribunal together with, but separately from, the
rest of the authority’s statement; and
(b) in
either case, specify the reasons for the authority’s opinion that the
matter should be a restricted matter.
(2) As soon as practicable
following receipt of an authority’s statement which contains or refers to
any restricted matter, the Tribunal must determine, in accordance with
paragraph (3), the question of whether or not to disclose the restricted
matter to the applicant or (as the case may be) the patient.
(3) Restricted matter may
be disclosed only if the Tribunal gives a direction to such effect to the
responsible authority, but the Tribunal must not give such a direction where,
in the opinion of the Tribunal –
(a) disclosure
of the matter would be likely to cause any person serious harm; and
(b) having
regard to the overriding objective it is proportionate to withhold the
restricted matter from the applicant or (as the case may be) the patient.
8 Information
to be supplied by Tribunal
(1) The Tribunal
must –
(a) send
to the applicant a copy of the authority’s statement, excluding (subject
to Article 7(3)) any restricted matter; and
(b) invite
comments, from the applicant, on the authority’s statement.
(2) Where any comments are
received from the applicant on the authority’s statement, the Tribunal
must give the responsible authority a copy of the comments and a reasonable
opportunity to respond to the comments.
9 Tribunal
to be convened for consideration of applications
(1) Subject to Article 3,
the president must convene the members of a Tribunal to determine an
application, and the president, or another legal member so convened, may issue
such directions as to preliminary matters relating to the application or any
associated proceedings as the president (or as the case may be, other legal
member) may consider necessary.
(2) The president must
convene the members under paragraph (1) –
(a) as
soon as reasonably practicable following receipt of a reference from the
Attorney General or the Minister;
(b) as
soon as reasonably practicable following the receipt of an authority’s
statement, upon the expiry of the period in Article 6(1), or
(c) as
the president may otherwise consider appropriate.
10 Tribunal's
general powers to direct proceedings
(1) For the purpose of
giving effect to the overriding objective, the Tribunal may give such
directions as to the conduct or disposal of proceedings as may seem necessary
at any time, including general directions as to its own practice.
(2) In particular, and
without prejudice to the generality of paragraph (1), the Tribunal
(whether of its own motion, or on the application of any party)
may –
(a) consider
more than one application in respect of a patient at the same time, and may for
this purpose adjourn any proceedings;
(b) shorten
or extend any time period specified in this Order;
(c) waive
any requirement in this Order for a form, information, evidence or other
statements to be given in writing, or for documents to be provided;
(d) request
the responsible authority to provide access to any documents or information in
its possession which –
(i) in the view of
the Tribunal, may be relevant to consideration of the application, and
(ii) are
additional to those supplied by the authority under Article 6(2);
(e) give
directions as to the manner in which any evidence, statements or submissions
are to be provided to the Tribunal, or any interviews are to be conducted,
including directions for such evidence, statements or submissions to be given
or interviews to be conducted orally in person, or by means of –
(i) a recording,
whether audio or audiovisual,
(ii) a
telephone, television or internet connection, or
(iii) any
other appropriate digital or electronic method of communication; and
(f) dispense
with the requirement under Article 16(1) for a determination to be made at
a hearing, in any case in which –
(i) the Tribunal
considers the documentary evidence to be sufficient to enable it to determine a
matter, and
(ii) it
would be appropriate to do so.
11 Parties’
representatives
(1) Subject to paragraph (2),
a party may be represented, in any dealings with or proceedings before the
Tribunal, by any person appointed by the party for that purpose.
(2) A party may not be
represented by –
(a) a person
liable to be detained or subject to guardianship under the Mental Health Law;
(b) a person
receiving treatment for mental disorder at the same approved establishment as
the patient by or in respect of whom the application is made; or
(c) in
the case of P, a person resident at the same relevant place as P.
(3) Without prejudice to
paragraph (1), the Tribunal may appoint any person as a representative of
the patient where the Tribunal considers that it is in the best interests of
the patient to do so, and in particular (but without limitation) where –
(a) the
applicant has capacity to appoint a representative, but –
(i) has not yet done
so, and
(ii) indicates
that he or she wishes to be represented, or does not wish to conduct his or her
own case; or
(b) in
the opinion of the Tribunal, the patient lacks capacity to appoint a
representative.
(4) Where the Tribunal
appoints a person as representative under paragraph (3), the Tribunal must
send notice in writing of the appointment, and of the representative’s
name and address, to each of the parties.
(5) Where a party appoints
a representative –
(a) the
party must give notice in writing of the appointment, and of the
representative’s name and address, to the Tribunal and to each of the
other parties; and
(b) it is
to be assumed that the appointment subsists unless and until notice in writing
to the contrary is received by the Tribunal.
(6) A reference in Articles 6,
13, 19 and 20 to any party includes reference to that party’s
representative as appointed under this Article, and such a representative may
take all such steps and do all such things relating to the application as the
person whom he or she represents is required or authorized by this Order to
take or do.
(7) Unless the Tribunal
otherwise directs, a patient or other person appearing before the Tribunal may
be accompanied by such other person or persons as he or she wishes (provided
that any such person does not seek to act as representative of any party, where
such a representative has been appointed by the party or by the Tribunal).
(8) In this Article,
“party” means the applicant, the responsible authority and any person
to whom notice of an application has been given under Article 5.
12 Medical
examinations
(1) The medical member of
the Tribunal appointed to consider the application may examine, interview or
assess a patient or take such other steps as he or she considers necessary to
form an opinion of the patient’s mental condition.
(2) For the purposes of
paragraph (1) a patient may be seen in private and his or her medical
records may be examined.
13 Documents
etc. to be provided to parties
(1) The Tribunal must
provide to the parties copies of all documents obtained by or sent to the
Tribunal for the purposes of the proceedings and a statement of any oral
information so obtained or provided, except to the extent that –
(a) the
Tribunal considers that any document or part of a document or any oral
information received in connection with the application is not relevant for the
purposes of the application; or
(b) the
Tribunal determines, under Article 7, that any restricted matter should
not be disclosed to the applicant.
(2) The Tribunal must give
the parties a reasonable opportunity to consider any document or information
made available under paragraph (1), including if so requested by
adjourning any hearing of the application for a reasonable period.
(3) The Tribunal may
disclose to any person any information withheld under the provisions of this Order
on terms that the information must not be disclosed to the applicant or the
patient or to any other person or be used otherwise than in connection with the
application.
14 Evidence
to be provided to Tribunal
(1) The Tribunal may call
for such documents and examine such witnesses as may in the Tribunal’s
view be able to provide evidence which is relevant to the proceedings.
(2) The Tribunal may
require any party to or any witness in the proceedings to give evidence on
oath, and the president (or other legal member as mentioned in Article 9(1))
has power to administer the oath for that purpose, but no person may be
compelled to give any evidence or produce any document which he or she could
not be compelled to give or produce on the trial of an action.
(3) The Tribunal may
receive in evidence any document or information notwithstanding that such
document or information would be inadmissible in a court of law.
15 Withdrawal
of applications
(1) An applicant may
withdraw an application at any time, on giving notice in writing of the
withdrawal to the Tribunal.
(2) An application is to be
treated as withdrawn (subject to, and to such extent as may be provided in, any
direction given by the Tribunal) if –
(a) in
the case of a patient under the Mental Health Law, the patient ceases to be
liable to be detained or subject to guardianship;
(b) in
the case of P, P ceases to be subject to a standard authorization.
16 Manner
of determination
(1) Except where, under Article 10
or this Article, the Tribunal otherwise directs, an application must be
determined at a hearing.
(2) Where the Tribunal is
satisfied that proceeding by way of a hearing would be likely to cause serious
harm to the patient’s health, the Tribunal may, before determining an
application, direct that no hearing should be held on that application.
(3) Where the Tribunal
gives a direction under paragraph (1), the direction and a statement of
the reasons for it must be sent to the applicant and the responsible authority.
(4) Where the Tribunal
considers that an application should be determined by way of a hearing, the
Tribunal must give to each party reasonable notice of the date, time and place
fixed for the hearing.
(5) Except where otherwise
required under the Mental Health Law, an application must be determined as soon
as reasonably practicable, and in any event within the period of 3 months
beginning with the date on which the application is received by the Tribunal.
17 Conduct
of hearings
(1) A hearing by the
Tribunal must be conducted in private, unless –
(a) the
applicant requests a hearing in public; and
(b) the
Tribunal is satisfied that a hearing in public would not be detrimental to the
interests of the patient and would not for any other reason be undesirable.
(2) When sitting in private
the Tribunal may admit to the hearing any person or class of persons on such
terms and conditions as the Tribunal considers appropriate.
(3) The Tribunal may
exclude from any hearing or from any part of a hearing such person or class of
persons as the Tribunal thinks fit, and may exclude the patient or any other person
from the hearing of evidence if, in their opinion, it would be undesirable in
the interests of the patient or for other special reasons for the patient or
such other person to be present.
(4) Except to the extent
directed by the Tribunal and as may be compatible with the Data Protection (Jersey) Law 2018, information about
proceedings before the Tribunal and the names of any persons concerned in the
proceedings must not be made public.
(5) Subject to paragraphs (6)
to (10) and to the overriding objective, any person who has received notice of
the hearing may appear and take such part in the proceedings as the Tribunal
thinks fit.
(6) The Tribunal must give
an applicant the opportunity to address the Tribunal, and to give evidence and
to call witnesses.
(7) The responsible
authority, and with the permission of the Tribunal any other person, may put
questions to the applicant or to any witness called by him or her or on his or
her behalf.
(8) The
Tribunal must give the responsible authority, and any other party notified of
the hearing under Article 16(4), an opportunity to address the Tribunal
and to give evidence and to call witnesses, and may permit any other person to
do so as the Tribunal thinks fit.
(9) The applicant and the
responsible authority, and with the permission of the Tribunal any other person,
may put questions to any person giving evidence before the Tribunal under
paragraph (8).
(10) Where the patient is the
applicant or is called as a witness, the Tribunal may, if the Tribunal
considers it is desirable in the interests of the patient’s health or in
P’s best interests to do so, interview the patient or take his or her
evidence in private or in any manner the Tribunal considers appropriate.
18 Additional
powers of Tribunal
(1) Before determining an
application the Tribunal may –
(a) take
such steps as it considers proper (including interviewing any person) to ensure
that all relevant information is before the Tribunal; and
(b) consider
any written representations made to the Tribunal with reference to the
application.
(2) The Tribunal must give
any person interviewed under paragraph (1)(a) the opportunity to state his
or her views and to draw the Tribunal’s attention to any matter relevant
to the application.
(3) An interview under this
Article must take place in private but the Tribunal may, if it thinks fit,
authorize any person (other than the interviewee) to attend.
(4) Where it appears to the
Tribunal that it is desirable to obtain further information on any point, the
Tribunal may adjourn a hearing, for the purpose of enabling –
(a) the
information to be obtained in such manner as the Tribunal may direct; or
(b) the
applicant, or any other person concerned, to produce the information requested.
(5) Following an
adjournment under paragraph (4), where –
(a) the
Tribunal considers that a resumed hearing is desirable; or
(b) a
resumed hearing is requested by the applicant or the responsible authority,
reasonable notice of the resumed hearing must be given to the
parties, and to any other person who was notified of the hearing under the
provisions of Article 16(4) and who appeared at the previous hearing.
19 Tribunal
decisions
(1) The
Tribunal’s decision is the decision of the majority of the members of the
Tribunal appointed to consider an application.
(2) The
Tribunal’s decision in any proceedings must be –
(a) recorded
in such form as may be specified in practice directions; and
(b) signed
by the president.
(3) Subject to paragraphs (4)
and (5) and Article 20(4), the Tribunal’s decision must be
communicated in writing, within the period of 7 days beginning with the
date of the decision, to –
(a) the
applicant;
(b) the
responsible authority;
(c) the
patient (where he or she is not the applicant);
(d) in
the case of a decision under Article 85 of the Mental Health Law, the
Minister; and
(e) such
other persons as the Tribunal may direct,
and (except in the case mentioned in sub-paragraph (d)) the
Tribunal must at the same time inform the applicant, the patient (where he or
she is not the applicant), and the responsible authority of their right to
receive reasons for the decision in accordance with Article 20.
(4) Where –
(a) the
patient is not the applicant; and
(b) the
Tribunal considers that it would not be desirable to communicate the decision
in writing to the patient,
the Tribunal’s decision must be communicated to the patient in
such a manner as the Tribunal may consider appropriate.
20 Statement
of reasons for decision
(1) Subject to paragraph (4),
within the period of 28 days beginning with the date of the decision the
Tribunal must send a statement in writing of the reasons for the Tribunal’s
decision, to –
(a) the
applicant;
(b) the
patient (where the patient is not the applicant);
(c) the responsible
authority; and
(d) where
the application relates to an authorization under Article 85 of the Mental
Health Law, the Minister.
(2) The statement of
reasons must be signed by the president.
(3) Paragraph (4)
applies where the Tribunal is satisfied that any information contained in
the statement of reasons would be likely to cause any person serious harm.
(4) Where this paragraph
applies, the Tribunal may –
(a) prohibit
the publication of the text, or of any summary, of the whole or part of the decision
or the statement of reasons; or
(b) direct
that the statement of reasons be sent, or such text or summary be published,
only to such persons and on such conditions as the Tribunal may specify.
21 Appointment
of additional Tribunal members
Where –
(a) an application has not
been disposed of by the members of the Tribunal appointed for the purpose; and
(b) the president is of the
opinion that it is not practicable, or not possible without undue delay, for
the consideration of the matter to be completed by those members,
the president must make arrangements for the matter to be disposed
of by other members of the Tribunal.
22 Extension
of time
(1) Where a time specified
in this Order for doing any act expires on a Sunday or public holiday, and for
that reason the act cannot be done on that day, the act is in time if it is
done on the next working day.
(2) A request for extension
of a time specified in this Order may be granted by the Tribunal even though
that request is not made until after the expiration of the time specified.
23 Sending
of notices etc.
Any application, notice or other document required or authorized by
this Order or by any practice direction to be sent or given to any person may
be sent or given –
(a) by post;
(b) by delivery to that
person’s address (including delivery by a courier or messenger service);
(c) by electronic
communication; or
(d) by being handed
personally to the person or to the person’s representative, if any.
24 Correction
of irregularities
(1) Any irregularity
resulting from failure to comply with this Order before the Tribunal has
reached a decision does not of itself render the proceedings void, but the
Tribunal may, and must if it considers that any person may have been prejudiced,
take such steps as it thinks fit before reaching its decision to cure the
irregularity, whether by the amendment of any document, the giving of any
notice, the taking of any step or otherwise.
(2) Where the Tribunal
corrects any error or omission in a decision, direction or other document
produced by it, the Tribunal must take all reasonable steps to bring the
correction to the attention of the parties.
25 Citation
This Order may be cited as the Mental Health and Capacity (Review
Tribunal) (Procedure) (Jersey) Order 2018.