/ Fay Smillie
Jurisdictional and Operational Support
First-tier Tribunal (Mental Health)
100 Southgate Street
Bury St Edmunds
Suffolk
IP33 2AQ

Stephen Brickell

16 August 2012

Dear Mr Brickell,

Subject: Treat Official Correspondence

Thank you for your email of 29 November 2011, addressed to the Data Access & Compliance Unit.As you have previously been advised, your request does not fall under the Freedom of Information Act however, it has been passed to me as I have responsibility for answering requests relating to HM Courts and Tribunals Service, First-tier (Mental Health) Tribunal.

I must apologise for the delay in this response, there was an oversight in the handling of your original request which resulted in my only receiving it in the last few days, for which I cam only apologise sincerely.

I have provided a response to each of the questions in numerical order as follows;

  1. How are the 3 members for each Tribunal panel selected?

Tribunal judicial office holders are asked to provide the tribunal with dates of when they are available to undertake hearings and this is updated onto the Mental Health Tribunal database along with a list of Counties where the member is willing and able to sit. When arranging a hearing date the database will also show whether panel members are available in the local area and rank them in order of where they sit in conjunction to the venue. Usually the member selected by the database at the top of the list is the member appointed to the hearing.

  1. Are all 3 members of the Tribunal panel from the same area?

Members are selected as above and panels are usually expected to travel a maximum of 50 miles or 1 hour travel in the majority of the Country and therefore may not be local to the hospital or eachother.

  1. Does each member of the panel receive remuneration?

The information you have requested is published on the Ministry of justice website I have provided a link to the relevant pages, please see:

  1. Does each member receive the same level of remuneration?

The information you have requested is published on the Ministry of justice website I have provided a link to the relevant pages, please see:

  1. Please state how much is paid to each member of the panel and by whom the payments are made.

The information you have requested is published on the Ministry of justice website I have provided a link to the relevant pages, please see:

  1. What level of legal expertise does the Judge of the Tribunal panel require?

Please see The Tribunals, Courts and Enforcement (TCE) Act 2007 Sch2 Para1 using the following link:

The legislation states;

1(1) The Lord Chancellor may appoint a person to be one of the judges of the First-tier Tribunal.E+W+S+N.I.

(2)A person is eligible for appointment under sub-paragraph (1) only if the person—

(a) satisfies the judicial-appointment eligibility condition on a 5-year basis,

(b) is an advocate or solicitor in Scotland of at least five years' standing,

(c) is a barrister or solicitor in Northern Ireland of at least five years' standing, or

(d) in the Lord Chancellor's opinion, has gained experience in law which makes the person as suitable for appointment as if the person satisfied any of paragraphs (a) to (c).

(3)Section 52(2) to (5) (meaning of “gain experience in law”) apply for the purposes of sub-paragraph (2)(d), but as if section 52(4)(i) referred to the Lord Chancellor instead of to the relevant decision-maker.

  1. What level of medical knowledge does the medical member of the Tribunal panel require?

Please see The Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008:

The specific eligibility for medical members of the tribunal panel is as follows;

Salaried Medical Members

2.1 Eligibility requirements

To be eligible for appointment as a Salaried Medical Member of the First-tier Tribunal, Social Entitlement Chamber you must:

Be a registered medical practitioner. “Registered medical practitioner” means a fully registered person within the meaning of the Medical Act 1983 whether or not they hold a licence to practise under the Act.

Candidates must be registered with the General Medical Council (GMC) in the UK.

In addition, in order to be eligible to apply candidates’ registration with the GMC must be unconditional.

Conditional registration is where the doctor has either been issued with a warning or has been referred to a Fitness to Practice Panel or has any restrictions imposed upon their registration with the GMC.

The Lord Chancellor expects that candidates for salaried posts will have sufficient directly relevant previous judicial experience. Only in exceptional cases and if the candidate in question has demonstrated the skills in some other significant way should an exception be made.

The meaning of “directly relevant experience” is sitting as a medical member in a salaried or fee-paid capacity, for fee-paid medical members this should be for a period of at least two years or 30 sitting days since appointment.

Fee-Paid Medical Members

2.1 Eligibility requirements

To be eligible for appointment as Fee-Paid Medical Member you must meet the following requirements.

Statutory eligibility requirements

You are a registered medical practitioner.

A licence to practise (as distinct from registration with the GMC) is not a requirement of appointment, but candidates should have experience of clinical practice and, must be able to demonstrate relevant up to date knowledge.

Non-statutory requirements

The Lord Chancellor expects that in order to be eligible to apply candidates registration with the GMC must be unconditional. Conditional registration is where the doctor has either been issued with a warning or has been referred to Fitness to PracticePanel or has any restrictions imposed upon their registration with the GMC.

  1. Is the lay member present to provide a balance between law and medicine?

No, the non legal member is there to provide their specialist input to the decision making process.

Again, please refer to the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008:

  1. Are all 3 members bound by the same oath prior to commencement of any service on such Tribunals?

The legislation contained in the Tribunals, Courts and Enforcement Act 2007, Schedule 2 Paragraph 9:

Specifically relates to this matter:

9(1) Sub-paragraph (2) applies to a person (“J”)—E+W+S+N.I.

(a) who is appointed under paragraph 1(1) or 2(1), or

(b) who becomes a transferred-in judge, or a transferred-in other member, of the First-tier Tribunal and has not previously taken the required oaths after accepting another office.

(2)J must take the required oaths before—

(a) the Senior President of Tribunals, or

(b) an eligible person who is nominated by the Senior President of Tribunals for the purpose of taking the oaths from J.

(3)A person is eligible for the purposes of sub-paragraph (2)(b) if any one or more of the following paragraphs applies to him—

(a) he holds high judicial office (as defined in section 60(2) of the Constitutional Reform Act 2005 (c. 4));

(b) he holds judicial office (as defined in section 109(4) of that Act);

(c) he holds (in Scotland) the office of sheriff.

(4)In this paragraph “the required oaths” means (subject to sub-paragraph (5))—

(a) the oath of allegiance, and

(b) the judicial oath,

as set out in the Promissory Oaths Act 1868 (c. 72).

(5)Where it appears to the Lord Chancellor that J will carry out functions as a judge or other member of the First-tier Tribunal wholly or mainly in Northern Ireland, the Lord Chancellor may direct that in relation to J “the required oaths” means—

(a) the oath as set out in section 19(2) of the Justice (Northern Ireland) Act 2002 (c. 26), or

(b) the affirmation and declaration as set out in section 19(3) of that Act.

  1. Prior to the start of any hearing do all panel members view all reports prepared relating to the Appellant.

Yes – all panel members are provided with the Tribunal bundle containing the statutory reports and any further evidence relevant to the appeal. Wherever possible, the Tribunal administration aims to provide the bundle to members 7 days prior to the hearing date.

  1. Does the process require the Appellant to have a legal representative present, someone who knows them well or both?

Rule 11 of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 refers to the options available to the appellant as follows;

And provides the following information;

11.(1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.

(2) If a party appoints a representative, that party (or the representative if the representative is a legal representative) must send or deliver to the Tribunal and to each other party written notice of the representative’s name and address.

(3) Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except—

(a) signing a witness statement; or

(b) signing an application notice under rule 20 (the application notice) if the representative is not a legal representative.

(4) A person who receives due notice of the appointment of a representative—

(a) must provide to the representative any document which is required to be provided to the represented party, and need not provide that document to the represented party; and

(b) may assume that the representative is and remains authorised as such until they receive written notification that this is not so from the representative or the represented party.

(5) At a hearing a party may be accompanied by another person whose name and address has not been notified under paragraph (2) but who, subject to paragraph (8) and with the permission of the Tribunal, may act as a representative or otherwise assist in presenting the party’s case at the hearing.

(6) Paragraphs (2) to (4) do not apply to a person who accompanies a party under paragraph (5).

(7) In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where—

(a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or

(b) the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient’s best interests for the patient to be represented.

(8) In a mental health case a party may not appoint as a representative, or be represented or assisted at a hearing by—

(a) a person liable to be detained or subject to guardianship or after-care under supervision, or who is a community patient, under the Mental Health Act 1983; or

(b) a person receiving treatment for mental disorder at the same hospital as the patient.

There is no requirement for the appellant to have legal representation, they can elect to conduct their own case and the Mental Health tribunal process is structured to ensure the patient is able to do so. In addition all patients who appeal to the tribunal have a right to legal representation through legal aid. The Law Society publishes an approved list of solicitors who are qualified to represent patients at tribunals. The list can be obtained from the hospital’s Mental Health Act Administrator or from the tribunal panel.

  1. Does each member of the Tribunal panel make a recommendation concerning the outcome?

After the hearing the 3 panel members discuss the evidence together and jointly reach a consensus as to the statutory criteria and as to their joint reasoning for their conclusions. It is extremely rare for a panel not to reach a unanimous decision after discussion - but in the event of irreconcilable disagreement, there being 3 people on the panel, the majority view will prevail. Usually the decision is communicated to the patient or representative on the day of the hearing. The judge will subsequently write a decision that encapsulates the agreed outcome and thinking of the panel.

  1. If there is a difference of opinion who makes the final decision?

Please see Rule 8 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008:

8.If the decision of the tribunal is not unanimous, the decision of the majority is the decision of the tribunal; and the presiding member has a casting vote if the votes are equally divided.

Once again, please accept my apologies for the delays that you have experienced relating to this enquiry. I hope the above provides all of the information you were seeking.

Yours sincerely

Fay Smillie

Jurisdictional Support (Mental Health)