Overview of Mental Health Practice Direction amendments

Following amendments to the Mental Health Practice Directions, this article explores the recent amendments and summarises the recent Amended Pilot Practice Direction, which was extended on the 14th September 2020 and is to remain in place until the 18th March 2021.

However, this could be revoked at any time, if it is deemed inappropriate or unnecessary.

In short, the amended direction remains largely the same for Mental Health Tribunals, apart from 1 key change, which is as follows:

Pre-Hearing assessments

The original Practice Direction said that these were deemed “not practicable” during the COVID-19 pandemic, due to the health risk these examinations present.

However, the wording has changed in the amended direction as follows:

“…shall be deemed not practicable under Rule 34 of the 2008 Rules for any pre-hearing examinations to take place, unless the Chamber President, Deputy Chamber President or an authorised salaried judge direct that in the exceptional circumstances of a particular case it shall be practicable for such a pre hearing examination to take place…” for example, if they are Autistic or suffer with a learning disability, this would be beneficial, or if they do not wish to attend the tribunal, but would be happy to meet with the tribunal doctor, to have their input.

The solicitor would make the application for the PHE and must stress the importance of one being conducted in that particular case.  

To summarise, if the patient wishes for a PHE to be conducted, then it is perfectly acceptable, due to video-enabled hearings with a full panel, a PHE is practicable  and they should be conducted remotely and take place on the morning of the hearing, with the hospital facilitating a room for the examination to take place remotely.

This would mean the hearing would be listed for a full day.

The recent case law that clarifies this is Re C [2020] MHLO 48 [FTT], which I encourage you to read.

Finally, I would like to stress that the standing directions in relation to solicitors being provided section papers and medical records remains in force for the duration of this Practice Direction, due to the ongoing COVID-19 health pandemic and the difficulties in getting forms of authorities signed.

This article was kindly written by our Consultant Solicitor, Steve Lawlor.

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