Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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The Family Health Services Appeals Authority was abolished on 18 January 2010and its functionstransferred to the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal. This Update informs PCTs of the transitional arrangements for cases that are pending on the date of transfer and for new cases after that date, and advises them on the practical steps that they should take.
The Family Health Services Appeals Authority (FHSAA) was abolished on 18 January 2010 by the Transfer of Tribunals Functions Order 2010 ("the Functions Order"). PCTs with cases pending before the FHSAA should be aware that such cases have transferred to the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal (HESC) – see our previous Update.
In light of the abolition of the FHSAA, the FHSAA Procedure Rules are no longer in force. The HESC has its own set of rules, which are set out in the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699). These are referred to as the Tribunal Procedure Rules below.
On 18 January 2010, the Functions Order came into force, and this date is referred to as the “date of transfer” below. The Functions Order sets out transitional arrangements for cases that were pending at the date of transfer.
All cases brought after the date of transfer will be subject to the Tribunal Procedure Rules, and will be before the HESC. The Tribunal Procedure Rules set out an overriding objective for the HESC to deal with cases fairly and justly. This includes:
HESC also has the power to award costs, a power which the FHSAA did not possess - see our previous Update.
The Functions Order also amends legislation, including the National Health Service (Performers Lists) Regulations, to remove references to the FHSAA and replace then with the “First Tier Tribunal”.
It should be noted that Regulation 18 (Restrictions on withdrawal from performers lists) of the Performers List Regulations has not been amended. The implication of this is that Secretary of State’s consent will still be required where a performer who wishes to withdraw from any PCT performers list and the PCT is investigating a performer in relation to removing or contingently removing that performer, or where that performer is suspended under Regulation 13(1) for example.
Also, any appeals from the FHSAA that would previously have gone to the High Court, will now be heard in the Upper Tier Tribunal. Appeals from the Upper Tier Tribunal can only be on a point of law, and must not be an excluded decision. Such appeals, if permitted, will go before the Court of Appeal. The Court of Appeal in these circumstances can also make findings of fact, not previously made in earlier proceedings.
Given that the transitional arrangements give the new tribunals the power to apply the old FHSAA Procedure Rules and disapply the provisions of the new Tribunal Procedure Rules, PCTs should consider seeking a directions hearing for cases pending on 18 January 2010. This will assist the PCT in clarifying the rules and procedures that the Tribunal will apply going forwards in these cases. Section 6 of the Tribunal Procedure Rules set out the procedure for applying for and giving directions.
For cases pending on 18 January 2010, as well as new cases post 18 January 2010, PCTs should ensure that staff who exercise list management functions and powers, as well as List Management Panel Members, are familiar with the Tribunal Procedure Rules.
Should you require any additional advice on the issues set out above, please contact a member of our Commercial Healthcare Team, who will be happy to assist you.