Mandatory and discretionary references

When patients do not exercise their right to apply to the Mental Health Tribunal, references can (and in some cases, must) be made on their behalf.

It is important to know the rules about references. For instance:

1. You can prompt the relevant body to make a reference which should already have been made.

2. If a reference is due soon, it may be better to wait for that rather than make an application, in order to preserve the right to apply later.

3. The tribunal may join an application with a reference, and hold a single hearing, so it is usually best to withdraw the application if possible (or not make one).

It is necessary to know the section start date, and the dates of previous applications/references and hearings.

In MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94 the ECtHR found a violation of Article 5 in the case of a patient who lacked the capacity to apply to the tribunal in relation to her s2 detention: the necessary special safeguards, which were lacking, ‘may well include empowering or even requiring some other person or authority to act on the patient’s behalf’ (i.e. referring the case to the tribunal). It is unclear what the government’s response will be.

Secretary of State for Justice (restricted patients – mandatory and discretionary)

There are three possible references for restricted patients:

1. The Secretary of State for Justice can make a reference at any time (s71(1)).

2. He must do so where there has been no Tribunal for three years (s71(2)).

3. However, for conditionally-discharged patients, the only reference is upon recall (s75). Note that the patient cannot apply during the first six months after recall.

Secretary of State for Health and Social Care (unrestricted patients – discretionary only)

The Secretary of State for Health can refer Part II patients, and unrestricted Part III patients, at any time (s67(1)).

The Department of Health have published guidance on the exercise of this power: DHSC, 'Section 67 of the MHA 1983: References by the Secretary of State for Health and Social Care to the First-tier Tribunal' (14/8/19). The guidance helpfully sets out the patients for whom the Department can make a referral:

Sections 2, 3, 4
Hospital orders (unrestricted)
Prison transfers (unrestricted)
CTO
Guardianship
Patients who detained under other legislation but who are treated as if they are subject to s37.

The two most common situations for requests are stated as being:

"a patient detained under section 2 misses the 14-day deadline for applying to the Tribunal through no fault of their own and there is still time for a hearing to be arranged before the section 2 is due to expire;
a patient’s detention under section 2 has been extended pending resolution of proceedings under s29 to displace their nearest relative (the Act does not give patients the right to apply directly to the Tribunal in these circumstances)."

The Guidance asks that a letter be sent (containing the reasons for the request, and the length of time the patient has been on the section) and a completed, unsigned, undated Tribunal referral form. These documents should be sent to:

Department of Health
Area 313A, Richmond House 79 Whitehall London SW1A 2NS Fax: 0115 902 3211
E-mail: mentalhealthact2007@dh.gsi.gov.uk

All relevant factors will be taken into account, including:

"the reason for the request;
the length of time since the case was last considered by a Tribunal (if ever);
the length of time it may be before an application may (or a reference must) be made under other sections of the Act; and
whether any decision being sought falls within the remit of a Tribunal."

Finally, the guidance states, in relation to patients and nearest relatives, that ‘Wherever they can make an application, they should do so rather than seek a reference under section 67’.

The Secretary of State’s refusal to make a reference for a patient who had lost her right to a s2 tribunal through no fault of her own was considered in R (Modaresi) v SSH [2013] UKSC 53, [2013] MHLO 63. The refusal was lawful as the patient, at that stage detained under s3, had the right to make her own application.

The DHSC has agreed to make an urgent reference on the day of a hearing when the tribunal find that the patient lacked capacity to make the application but the hearing should go ahead (Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21)).

Reference by Hospital managers (unrestricted – mandatory only)

The hospital managers must make a reference to the Tribunal in certain circumstances (s68). They can only make a reference in those circumstances, but in other circumstances could request a reference be made by the relevant Secretary of State. The system was changed by the Mental Health Act 2007.

The managers are: in relation to a community patient, the managers of the responsible hospital; in relation to any other patient, the managers of the hospital in which the patient is liable to be detained (s68(9)).

S68 applies to:

s2 patients (in practice, only when extended by s29(4))
s3 patients
community patients (i.e. subject to s17A CTO)
patient whose CTO has been revoked under 17F
patient transferred from guardianship to hospital under s19

Apart fromt he six-month reference, it also applies to unrestricted s37 patients.

It therefore does not apply to restricted patients.

Revocation of CTO

The managers must make a reference as soon as possible after a CTO is revoked under s17F (s68(7)).

The patient can also apply during the first six months after revocation, and in the usual subsequent periods.

Six-month reference (one-off)

If there has been no s3/CTO tribunal application/reference during the first six months since s2/s3 began then a reference must be made six months after detention began.

Note that s2 applications/references are ignored. So are any applications/references which are withdrawn. For instance, you could be detained under s2, apply to the tribunal and have a hearing, then be detained under s3, and still get your six-month reference six months after your s2 began.

Section 68 states that on expiry of the period of six months beginning with the ‘applicable day’ the managers must make a Tribunal reference, unless one of the s68(3) exceptions apply.

The first step is to identify the applicable day.

Detention history	Applicable day
s2 only	s2 admission date
s2 then s3
s2, then s3, then CTO*
s3 only	s3 admission date
s3 then CTO*	s3 admission date
Guardianship, then transferred to hospital	Transfer date

* If the CTO gets revoked, then it is ignored: the applicable day remains the s2 or s3 admission date.

The next step is to see what has happened in the six months following the applicable day.

These actions mean there will be NO six-month reference:
- Applications:
  - Application made by s3 patient.
  - Application made by CTO patient (either during first six months, or following revocation).
  - Application made when transferred from guardianship to hospital.
  - Application made by NR (either when barring certificate issued, or when NR displaced on certain grounds).
- References:
  - Discretionary reference made by Secretary of State for Health under s67(1).
  - Mandatory reference made by hospital managers under s68(7) on revocation of CTO.

But note that these actions have no bearing on the question:
- Application made while under s2 or s4.
- Withdrawn applications.*
- References made while under s2.

* If a withdrawal is after the six month period then a reference must be made as soon as possible (s68(4)).

The six-month rule does not apply to unrestricted Part 3 patients (see para 157 of Explanatory Notes).

Three-year reference (recurring)

The managers must also make a reference ‘if a period of more than three years (or, if the patient has not attained the age of 18 years, one year) has elapsed since his case was last considered by such a tribunal’ (s68(6)).

The three-year rule applies to unrestricted Part 3 patients but the wording of the section seems to mean that there should be no reference if the Tribunal had never previously considered the case. However, the Code of Practice (at Figure 20) states that a reference should be made where ‘[t]hree years have passed without their case being considered by the Tribunal (one year if they are under 18)’ and it is common for hospitals to follow the Code rather than the Act in this regard.

Withdrawing references

See Withdrawal (MHT) for details on withdrawal.