JS v South London and Maudsley NHS Foundation Trust and Secretary of State for Justice
| Jurisdiction | UK Non-devolved |
| Judge | Jacobs |
| Judgment Date | 30 May 2019 |
| Neutral Citation | [2019] UKUT 172 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HM/2550/2018 |
| Date | 30 May 2019 |
Neutral Citation: [2019] UKUT 172 (AAC)
Court and Reference: Upper Tribunal (AAC)
Judge: UTJ Jacobs
HM/2550/2018
Appearances: O Lewis for JS
Facts: A detained patient may apply to a Tribunal once during each period of detention under the Mental Health Act 1983. Rule 17 Tribunal Procedure Rules 2008 allows a patient who has applied to a Tribunal to give notice of withdrawal before or at a hearing; this only takes effect if the Tribunal consents, and an application for reinstatement may be made. JS applied to a Tribunal but later sought to withdraw his application, citing his wish to work with his clinical team towards release. The Tribunal, acting through an authorised member of staff pursuant to the Senior President's Practice Statement, gave its consent on 20 August 2018, the day before the expiry of the period of detention (which was extended).
On 12 September 2018, JS sought to have his application reinstated, contending that he had made sufficient progress. This was rejected by a Tribunal Judge on 14 September 2018 on the basis that JS had a right to make an application under his new period of eligibility and reinstatement would allow 2 hearings in 1 period of eligibility, which was not the purpose of the reinstatement provision. An application to set aside this decision under r45 Tribunal Procedure Rules 2008 was rejected; JS then sought to appeal to the Upper Tribunal. It was contended that Art 5(4) ECHR mandated reinstatement to allow judicial consideration of the lawfulness of detention; alternatively, that a discretion to allow reinstatement should be exercised in favour of the patient in the absence of good reasons.
This decision is given under s11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the First-tier Tribunal under reference MP/2018/14663, made on 14 September 2018, did not involve the making of an error on a point of law.
1. This case deals with the factors to be taken into account when an application has been made to reinstate a case that was withdrawn with the consent of the First-tier Tribunal. I also explain why the Trust is a respondent to the proceedings.
2. The patient is liable to be detained under the Mental Health Act 1983. On 30 May 2018, he applied to the First-tier Tribunal with a view to being discharged from that liability. He then applied to withdraw his application, which required the consent of the tribunal under r17 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699). The application was made by the patient's solicitor on 18 August 2018:
We were informed by [the patient] that after he evaluated his pathway he does not wish to proceed with his application. He explained that based on the clinical evidence he would like to work with the team to secure his discharge.
In the light of the circumstances described above, our client has instructed that his application be withdrawn with immediate effect in accordance with his legal rights.
[He] has been fully advised on legal implications of withdrawing and understands that he has the option to reapply in this period of eligibility.
Additionally, we have advised [him] on r17(4) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 in regards to having his case reinstated within 28 days of the withdrawal date.
I need to explain the reference to a period of eligibility. A patient is only entitled to make 1 application in each period (s70 of the 1983 Act).1 The last day of the patient's current period was 21 August 2018, so the opportunity for making a fresh application in that period was very limited.
3. The tribunal gave its consent on 20 August 2018. That decision was made by an authorised member of staff purporting to act under the authority of the Senior President's Practice Statement on Delegation of Functions to Staff and Registrars of 10 June 2014. In fact, that Statement had been replaced by one of 27 April 2015. But no matter, because the terms of the later Statement were equally applicable. Paragraph 2(c) provided for the relevant delegation:
The giving of consent by authorised tribunal staff under r17(2) to a notice of withdrawal lodged by or on behalf of a patient by a representative under r17(1)(a), by those tribunal staff responsible for receiving and processing notices of withdrawal, subject to the notice of withdrawal being received by the tribunal 48 hours or more before the scheduled start time of the hearing of the application to the tribunal; and subject to the case not being part-heard, there being in existence no concurrent application or reference, and no other reason for tribunal staff to believe that consent to the withdrawal should be refused, such as it appearing that the withdrawal is merely tactical; …
Paragraph 4 provided for referral to a registrar or judge:
In accordance with r4(3) of the Tribunal Procedure (First Tier Tribunal) (Health Education and Social Care Chamber) Rules 2008, within 14 days after the date that the Tribunal sends notice of a decision made by an authorised member of tribunal staff or a Registrar (pursuant to an approval under para 3 above) to a party, that party may apply in writing to the Tribunal for the decision to be considered afresh by a judge (if the decision was made under para 3 above) or by a Judge or Registrar if made under para 2 above).
No such application was made.
4. However, on 12 September 2018, the patient applied for his application to be reinstated under r17(4). His solicitor explained:
At the material time, our client was of the opinion that he wished to make further progress with his clinical team. However, since this withdrawal application was accepted our client has reviewed his position and wishes to challenge his detention.
Our client has considered all of the legal advice provided and believes that he is making effective progress and considers that this is the appropriate time to seek discharge from his section.
The Tribunal Judge refused the application on 14 September 2018, saying:
The patient is now in a new period of eligibility and has the right to make a fresh application to the tribunal. I note that the current period of eligibility began on 22 August 2018, 2 days after the previous application was withdrawn. The patient should have been given legal advice about his eligibility at the time he decided to withdraw. Allowing the reinstatement would have the result of allowing the applicant to have 2 tribunal hearings...
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JS v South London and Maudsley NHS Foundation Trust and the Secretary of State for Justice
...SOUTH LONDON AND MAUDSLEY NHS FOUNDATION TRUST AND THE SECRETARY OF STATE FOR JUSTICE [2019] UKUT 172 (AAC) UPPER TRIBUNAL CASE NO: DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) Save for the cover sheet, this decision may be made public (rule 14(7) of the Tribunal Procedur......