Patients who are detained under the Mental Health Act and apply to the First-tier Tribunal (Mental Health) may undergo a pre-hearing examination. The examination is conducted by the Tribunal doctor who interviews the patient and also reviews the patient’s medical records.
Under the amended Rule 34, patients detained under s2 of the Mental Health Act 1983 will automatically receive a pre-hearing examination unless they object to it. Restricted patients, and patients detained under s3, will not receive a pre-hearing examination unless they specifically request one by submitting a written request to the Tribunal no less than 14 days before the hearing.
Patients and their legal representatives need to give early consideration as to whether or not to opt for a pre-hearing examination, and to ensure that a request is made in good time.
It is not always possible to comply with the time limit, for instance where the legal representative is appointed less than 14 days before the hearing. In such cases, it will be necessary to submit a Case Management Request giving a full and reasoned explanation as to why the request is being made outside of the time limit. The request will only be granted if it is clear that the Tribunal will not be able to deal with the case fairly and justly without a pre-hearing examination taking place.
Also, the Tribunal can only proceed in the absence of the patient if a pre-hearing examination has been carried out. If a patient fails to attend the hearing, the panel should direct the Tribunal doctor to assess the patient on the ward as the hearing cannot go ahead unless it was impractical or unnecessary for the examination to take place.
