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The Scottish Mental Health TribunalPractice and Procedure$
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Derek Auchie and Alisa Carmichael

Print publication date: 2009

Print ISBN-13: 9781845860226

Published to Edinburgh Scholarship Online: May 2020

DOI: 10.3366/edinburgh/9781845860226.001.0001

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Hearing Procedure II – The Merits of the Case

Hearing Procedure II – The Merits of the Case

(p.133) Chapter 4 Hearing Procedure II – The Merits of the Case
The Scottish Mental Health Tribunal

Derek P. Auchie

Ailsa Carmichael

Edinburgh University Press

In this chapter we consider how the merits of a case should be dealt with by the tribunal. This stage begins once all preliminary matters have been dealt with. It is not possible to lay down an absolutely fixed procedure, since much will depend on the facts of the case and its procedural history. However, we consider, in the usual order, some of the main parts of a standard hearing on the merits, so as to give a general impression of how a typical tribunal case should be conducted. As has already been mentioned, tribunal members are under an obligation to avoid formality wherever possible.1 While this obligation exists for all parts of the hearing, including discussions on preliminary matters, it is perhaps more relevant where the merits of the case are under consideration, since at this stage evidence on the merits of the application or appeal will be led.2 One of the major ways in which such informality is demonstrated (when compared with public court hearings) lies in the emphasis during tribunal hearings on interventions and questioning by tribunal members.3 However, the obligation to conduct the hearing as informally as possible should not be seen as a blank cheque simply to deal with the arguments and evidence presented in a completely arbitrary and relaxed way.

Keywords:   Approach, Fairness, Procedure, Oral evidence, Witnesses, Submissions, Questions, Exclusion, Privacy

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