Mental Health and
Capacity (Review Tribunal) (Procedure) (Jersey) Order 2018
Made 28th September 2018
Coming into force 1st
THE MINISTER FOR HEALTH AND SOCIAL SERVICES, in pursuance of Articles 49,
50, and 95 of the Mental Health (Jersey) Law 2016, and paragraph 5 of
Part 1 and paragraph 1 of Part 2 of the Schedule to that Law,
and Articles 55 and 70 of the Capacity and Self-Determination (Jersey) Law 2016, orders as follows –
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
“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
“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 –
relation to a patient liable to be detained under the Mental Health Law in an
approved establishment, the manager of the approved establishment;
relation to a patient subject to guardianship, the Minister; and
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.
reference in this Order to the president of a Tribunal is to be taken as a
(a) to the
Chairman of the Tribunal; or
for any reason the Chairman is unable to act, to the Vice-Chairman; or
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
overriding objective of this Order is to enable a Tribunal to deal with cases
fairly and justly.
with a case fairly and justly includes, so far as practicable –
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
unnecessary formality, and seeking flexibility, in the proceedings;
that the parties are able to participate fully in the proceedings;
any special expertise of the Tribunal effectively; and
delay, so far as compatible with proper consideration of the issues.
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.
parties to any proceedings and their representatives must –
the Tribunal to give effect to the overriding objective; and
with the Tribunal generally.
3 Alternative dispute resolution
In relation to an application the Tribunal may, where appropriate –
to the attention of the parties the availability of any appropriate alternative
procedure for the resolution of a disputed issue; and
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
otherwise directed by the Tribunal, an application must be made –
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).
notice in writing must include, at least –
name and address of the applicant;
name and address of the patient (if the patient is not the applicant);
name and address of the patient’s representative, if any;
name and address of any respondent;
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;
of the decision or exercise of power, or failure to decide or exercise a power,
to which the application relates;
result which the applicant is seeking;
reasons on which the applicant relies; and
further information or documents on which the applicant seeks to reply or which
is required by any applicable practice direction.
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
statement of reasons for the decision, exercise of power or failure which the
applicant has or can reasonably obtain.
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).
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
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
5 Notification by Tribunal to responsible authority and others
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
the purposes of paragraph (1), the “application” includes all
documents which together provide the matters required to be supplied under Article 4.
Tribunal must give notice of the application –
the patient is liable to be detained in an approved establishment, to the
Minister or, as the case may be, to the manager;
the patient is subject to guardianship, to the Minister or, as the case may be,
to the private guardian;
a case concerning a standard authorization, to the Minister; and
the applicant is capable of consenting, and has consented, to such notice being
(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,
(ii) if the applicant
is P, to P’s nearest relative.
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
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 –
the patient’s consent, if the patient is capable of consenting to such
notice being given; or
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.
under this Article may be given –
such form and manner as may be further specified in practice directions by the
a notice in writing which is substantially to the same effect as any specified
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.
to be supplied by responsible authority to Tribunal
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
factual information described in Part A of the Schedule;
reports, and any other observations, described in Part B of the Schedule;
of all documentary evidence –
(i) in support of the
information, reports and observations mentioned in sub-paragraphs (a) and
(ii) otherwise in
support of the decision, exercise of power or failure to which the application
together referred to as the “authority’s
addition to the authority’s statement, the responsible authority must,
within the same period as provided by paragraph (1) –
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
copies of such documents or information to the Tribunal, and (subject to paragraph (4))
the applicant, upon request.
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.
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 –
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
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.
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
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 –
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
either case, specify the reasons for the authority’s opinion that the
matter should be a restricted matter.
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.
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 –
of the matter would be likely to cause any person serious harm; and
regard to the overriding objective it is proportionate to withhold the
restricted matter from the applicant or (as the case may be) the patient.
to be supplied by Tribunal
Tribunal must –
to the applicant a copy of the authority’s statement, excluding (subject
to Article 7(3)) any restricted matter; and
comments, from the applicant, on the authority’s statement.
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
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.
president must convene the members under paragraph (1) –
soon as reasonably practicable following receipt of a reference from the Attorney
General or the Minister;
soon as reasonably practicable following the receipt of an authority’s
statement, upon the expiry of the period in Article 6(1), or
the president may otherwise consider appropriate.
10 Tribunal's general powers to direct proceedings
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.
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 –
more than one application in respect of a patient at the same time, and may for
this purpose adjourn any proceedings;
or extend any time period specified in this Order;
any requirement in this Order for a form, information, evidence or other
statements to be given in writing, or for documents to be provided;
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);
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
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
(ii) it would be
appropriate to do so.
11 Parties’ representatives
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.
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
the case of P, a person resident at the same relevant place as P.
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 –
applicant has capacity to appoint a representative, but –
(i) has not yet done
(ii) indicates that he
or she wishes to be represented, or does not wish to conduct his or her own
the opinion of the Tribunal, the patient lacks capacity to appoint a
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.
a party appoints a representative –
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.
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.
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
this Article, “party” means the applicant, the responsible
authority and any person to whom notice of an application has been given under
12 Medical examinations
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.
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
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 –
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
Tribunal determines, under Article 7, that any restricted matter should
not be disclosed to the applicant.
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
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
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
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.
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
applicant may withdraw an application at any time, on giving notice in writing
of the withdrawal to the Tribunal.
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 –
the case of a patient under the Mental Health Law, the patient ceases to be
liable to be detained or subject to guardianship;
the case of P, P ceases to be subject to a standard authorization.
where, under Article 10 or this Article, the Tribunal otherwise directs,
an application must be determined at a hearing.
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
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
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.
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
hearing by the Tribunal must be conducted in private, unless –
applicant requests a hearing in public; and
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.
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.
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.
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
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.
Tribunal must give an applicant the opportunity to address the Tribunal, and to
give evidence and to call witnesses.
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.
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.
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).
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
18 Additional powers of Tribunal
determining an application the Tribunal may –
such steps as it considers proper (including interviewing any person) to ensure
that all relevant information is before the Tribunal; and
any written representations made to the Tribunal with reference to 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.
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.
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 –
information to be obtained in such manner as the Tribunal may direct; or
applicant, or any other person concerned, to produce the information requested.
an adjournment under paragraph (4), where –
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
Tribunal’s decision is the decision of the majority of the members of the
Tribunal appointed to consider an application.
Tribunal’s decision in any proceedings must be –
in such form as may be specified in practice directions; and
by the president.
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 –
patient (where he or she is not the applicant);
the case of a decision under Article 85 of the Mental Health Law, the
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 –
patient is not the applicant; and
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
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 –
patient (where the patient is not the applicant);
responsible authority; and
the application relates to an authorization under Article 85 of the Mental
Health Law, the Minister.
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.
this paragraph applies, the Tribunal may –
the publication of the text, or of any summary, of the whole or part of the
decision or the statement of reasons; or
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
application has not been disposed of by the members of the Tribunal appointed
for the purpose; and
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
the president must make arrangements for the matter to be disposed
of by other members of the Tribunal.
22 Extension of time
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
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 –
(b) by delivery
to that person’s address (including delivery by a courier or messenger
electronic communication; or
being handed personally to the person or to the person’s representative,
24 Correction of irregularities
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.
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 and commencement
This Order may be cited as the Mental Health and Capacity (Review
Tribunal) (Procedure) (Jersey) Order 2018 and shall come into force on
1st October 2018.
deputy r.j. renouf of st. ouen
Minister for Health and Social Services