Part 5: Consultation On Draft Regulations That Set Out The Composition Of The First-Tier Tribunal And Upper Tribunal For Scotland
44) Sections 38 and 40 of the 2014 Act allow the Scottish Ministers, by regulation, to determine the composition of the First-tier and Upper Tribunals.
45) The draft regulations in Annex D apply to the composition of the First-tier Tribunal Mental Health Chamber and the Upper Tribunal when dealing with cases from the First-Tier Tribunal Mental Health Chamber.
46) The policy intention is to mirror the existing composition of the MHTS as set out in Schedule 2 of the 2003 Act. This means that cases in the First-tier Tribunal will be heard by the Chamber President and two ordinary members (one with medical experience and one with mental health care experience), or a legal member and two ordinary members (one medical experience and one with mental health care experience), or where appropriate, a judicial member (a sheriff) and two ordinary members (one medical experience and one with mental health care experience).
47) Cases appealed or transferred to the Upper Tribunal will be heard by judicial members of the Upper Tribunal, mirroring the type of judiciary that currently hear appeals in the courts. However, the appeals will take place in the Upper Tribunal, as opposed to the sheriff court. The Chamber President, the President of Tribunals or the Lord President will also be able to hear cases in the Upper Tribunal. They may either sit alone or with another judicial member of the Upper Tribunal. The Chamber President may only hear a case if they were not involved with the case before the First-tier Tribunal. The President of Tribunals will determine how the Upper Tribunal should be composed on a case-by-case basis. Cases that are currently appealed to the Court of Session will continue to be appealed to the Court of Session.