Mental Health Act 2001

Powers of tribunals.

49

49.—(1) A tribunal shall hold sittings for the purpose of a review by it under this Act and at the sittings may receive submissions and such evidence as it thinks fit.

(2) A tribunal may, for the purposes of the functions of the tribunal—

(a) F46[]

(b) F46[]

(c) F46[]

F47[(ca) direct in writing any person, whose attendance before the tribunal would, but for the exigencies of the public health emergency, be ordinarily required, to provide a written statement to the tribunal on such matters as may be specified in the direction,]

(d) direct in writing any person to send to the tribunal any document or thing in his or her possession or power specified in the direction, and

(e) give any other directions for the purpose of the proceedings concerned that appear to the tribunal to be reasonable and just.

(3) F46[]

(4) A person who—

(a) F46[]

(b) F46[]

(c) fails or refuses to send to the tribunal any document or thing legally required by the tribunal under paragraph (d) of subsection (2) to be sent to it by the person or without just cause or excuse disobeys a direction under F48[paragraph (ca), (d) or (e)] of that subsection, or

(d) does any other thing in relation to the proceedings before the tribunal which, if done in relation to proceedings before a court by a witness in the court, would be contempt of that court,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.

(5) If a person gives false evidence before a tribunal in such circumstances that, if he or she had given the evidence before a court, he or she would be guilty of perjury, he or she shall be guilty of that offence.

(6) The procedure of a tribunal in relation to a review by it under this Act shall, subject to the provisions of this Act, be such as shall be determined by the tribunal and the tribunal shall, without prejudice to the generality of the foregoing, make provision for—

(a) notifying the consultant psychiatrist responsible for the care and treatment of the patient the subject of the review and the patient or his or her legal representative of the F48[date and time] of the relevant sitting of the tribunal,

(b) giving the patient the subject of the review or his or her legal representative a copy of any report furnished to the tribunal under section 17 and an indication in writing of the nature and source of any information relating to the matter which has come to notice in the course of the review,

F48[(c) enabling the patient the subject of the review to present his or her case to the tribunal by way of representations in writing made by the patient or his or her legal representative,]

(d) enabling written statements to be admissible as evidence by the tribunal with the consent of the patient the subject of the review or his or her legal representative,

(e) enabling any signature appearing on a document produced before the tribunal to be taken, in the absence of evidence to the contrary, to be that of the person whose signature it purports to be,

(f) F46[]

(g) F46[]

(h) F46[]

(i) F46[]

(j) the making of a sufficient record of the proceedings of the tribunal.

(7) A witness whose evidence has been, is being or is to be given before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a witness in a court.

(8) A legal representative appearing before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a legal representative in a court.

(9) Sittings of a tribunal for the purposes of an investigation by it under this Act shall be held in private.

(10) The following shall be absolutely privileged:

(a) documents of the tribunal and documents of its members connected with the tribunal or its functions, wherever published,

(b) reports of the tribunal, wherever published,

(c) statements made in any form at meetings or sittings of the tribunal by its members or officials and such statements wherever published subsequently.

(11) F46[]

F47[(12) Where section 48(3A) applies, the Commission shall, on the request of the tribunal, appoint a consultant psychiatrist with whom the tribunal may, on the date on which the tribunal is sitting and for the purposes of the review concerned, consult.]

Annotations

Amendments:

F46

Suspended (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 23(b), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F47

Inserted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 21(a), (d), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

F48

Substituted (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 21(b), (c)(i), (ii), commenced as per s. 1(2)(b), (3)(a), (b), subject to exception in s. 24.

Modifications (not altering text):

C23

Section prior to 30 March 2020 temporarily suspended and subs. (2)(ca) inserted, subss. (4)(c), (6)(a) amended, (6)(c) substituted, subs. (12) inserted, and subss. 2(a), (b), (c), 4(a), (b), (6)(f), (g), (h), (i) and (11) suspended (30.03.2020 to 9.11.2020 or other date if continued in operation) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), ss. 21, 23(b), commenced as per s. 1(2)(b), 3(a), (b), subject to exception in s. 24. The suspended section is reproduced below.

49.—(1) A tribunal shall hold sittings for the purpose of a review by it under this Act and at the sittings may receive submissions and such evidence as it thinks fit.

(2) A tribunal may, for the purposes of the functions of the tribunal—

(a) subject to subsection (11), direct in writing the consultant psychiatrist responsible for the care and treatment of a patient the subject of the review concerned to arrange for the patient to attend before the tribunal on a date and at a time and place specified in the direction,

(b) direct in writing any person whose evidence is required by the tribunal to attend before the tribunal on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or power specified in the direction,

(c) direct any person in attendance before the tribunal to produce to the tribunal any document or thing in his or her possession or power specified in the direction,

(d) direct in writing any person to send to the tribunal any document or thing in his or her possession or power specified in the direction, and

(e) give any other directions for the purpose of the proceedings concerned that appear to the tribunal to be reasonable and just.

(3) The reasonable expenses of witnesses directed under subsection (2)(b) to attend before a tribunal shall be paid by the Commission out of moneys at the disposal of the Commission.

(4) A person who—

(a) having been directed under subsection (2) to attend before a tribunal and, in the case of a person so directed under paragraph (b) of that subsection, having had tendered to him or her any sum in respect of the expenses of his or her attendance which a witness summoned to attend before the High Court would be entitled to have tendered to him or her, without just cause or excuse disobeys the direction,

(b) being in attendance before a tribunal pursuant to a direction under paragraph (b) of subsection (2), refuses to take the oath on being required by the tribunal to do so or refuses to answer any question to which the tribunal may legally require an answer or to produce any document or thing in his or her possession or power legally required by the tribunal to be produced by the person,

(c) fails or refuses to send to the tribunal any document or thing legally required by the tribunal under paragraph (d) of subsection (2) to be sent to it by the person or without just cause or excuse disobeys a direction under paragraph (c), (d) or (e) of that subsection, or

(d) does any other thing in relation to the proceedings before the tribunal which, if done in relation to proceedings before a court by a witness in the court, would be contempt of that court,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.

(5) If a person gives false evidence before a tribunal in such circumstances that, if he or she had given the evidence before a court, he or she would be guilty of perjury, he or she shall be guilty of that offence.

(6) The procedure of a tribunal in relation to a review by it under this Act shall, subject to the provisions of this Act, be such as shall be determined by the tribunal and the tribunal shall, without prejudice to the generality of the foregoing, make provision for—

(a) notifying the consultant psychiatrist responsible for the care and treatment of the patient the subject of the review and the patient or his or her legal representative of the date, time and place of the relevant sitting of the tribunal,

(b) giving the patient the subject of the review or his or her legal representative a copy of any report furnished to the tribunal under section 17 and an indication in writing of the nature and source of any information relating to the matter which has come to notice in the course of the review,

(c) subject to subsection (11), enabling the patient the subject of the review and his or her legal representative to be present at the relevant sitting of the tribunal and enabling the patient the subject of the review to present his or her case to the tribunal in person or through a legal representative,

(d) enabling written statements to be admissible as evidence by the tribunal with the consent of the patient the subject of the review or his or her legal representative,

(e) enabling any signature appearing on a document produced before the tribunal to be taken, in the absence of evidence to the contrary, to be that of the person whose signature it purports to be,

(f) the examination by or on behalf of the tribunal and the cross-examination by or on behalf of the patient the subject of the review concerned (on oath or otherwise as it may determine) of witnesses before the tribunal called by it,

(g) the examination by or on behalf of the patient the subject of the review and the cross-examination by or on behalf of the tribunal (on oath or otherwise as the tribunal may determine), of witnesses before the tribunal called by the patient the subject of the review,

(h) the determination by the tribunal whether evidence at the tribunal should be given on oath,

(i) the administration by the tribunal of the oath to witnesses before the tribunal, and

(j) the making of a sufficient record of the proceedings of the tribunal.

(7) A witness whose evidence has been, is being or is to be given before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a witness in a court.

(8) A legal representative appearing before the tribunal in proceedings under this Act shall be entitled to the same privileges and immunities as a legal representative in a court.

(9) Sittings of a tribunal for the purposes of an investigation by it under this Act shall be held in private.

(10) The following shall be absolutely privileged:

(a) documents of the tribunal and documents of its members connected with the tribunal or its functions, wherever published,

(b) reports of the tribunal, wherever published,

(c) statements made in any form at meetings or sittings of the tribunal by its members or officials and such statements wherever published subsequently.

(11) A patient shall not be required to attend before a tribunal under this section if, in the opinion of the tribunal, such attendance might be prejudicial to his or her mental health, well-being or emotional condition.

Editorial Notes:

E19

The Euro equivalent of £1,5000 mentioned in subs. (4) is €1,905. This translates into a Class C fine as provided (4.01.2011) by Fines Act 2010 (8/2010), s. 6(2) and table ref. no. 1, S.I. No. 662 of 2010. A class C fine is not greater than €2,500.