Health and social care managers now face new rules on the disclosure of information in mental health review tribunals.

The Tribunal Procedural Rules have amended the test used by tribunals in relation to a responsible authority’s application to withhold information from the patient.

Cheryl Rowbotham, a solicitor at Hempsons, says: “This raises the bar in favour of disclosure. Previously, non-disclosure was allowed if it prevented an adverse effect on the health or welfare of the patient or others. Now, tribunals can only prohibit disclosure of a document if it is likely to cause ‘serious harm’.”

In addition the Upper Tier Tribunal has provided guidelines for hospitals and other responsible authorities dealing with requests for disclosure for the tribunal hearing of records that contain confidential information about third parties. These are:

  • The parties should always try to agree disclosure
  • Demonstrate clearly why there should be non-disclosure
  • If third party consent cannot be obtained, disclose the documents to the solicitor who can then consider making an application
  • If disclosure is required, reasons should be set out in a skeleton argument to which you must reply
  • If the responsible authority does not want to rely on an undertaking from the solicitor for non-disclosure it should set out the reasons in a skeleton argument and the solicitor must reply
  • If no agreement is reached only then apply to the tribunal
  • Disputes should be resolved at the substantive hearing except in complex cases where a ruling can be sought in advance