R (MN) v MHRT [2008] EWHC 3383 (Admin)

Tribunal application made under s70 when patient subject to s47/49 (restricted transfer direction) lapses when s49 (restriction direction) lapses; to avoid delay, the application can be treated as if it were an application under s69(2)(a).

Judgment

The following are very rough notes of the extempore judgment. They will will be removed once the transcript is available, or improved upon if that takes ages.

N, a patient under the MHA 1983 applies to review a decision of the MHRT on 28/6/07. His application was made to MHRT when he was detained under s47/49. MHRT decided his application ceased to have effect when he ceased to be restricted patient.

A question of interpretation of several sections, including s70. s70 allows application to MHRT in each year, but in first year application can only be in second six months because at hearing when made restricted patient judge heard psychiatric evidence.

Position of NM not uncommon. Operative part of sentence expired, so ceased to be restricted patient.

Question is whether appeal made under s70 remains in force (when patient ceases to be restricted patient).

Mr Southey submits it must. Even if as is practice of MHRT, s70 application treated as converted to s69(2) (application by non-restricted patient). Result is patient loses one periodical right to apply and may be faced with application treated as live if prefer it it weren't.

In order to understand s70, need to look at scheme of Act generally.

s41(5). Restriction order ceases. Hospital order remains in force. s40 & sch1 pt1 apply as if hospital order made on that date. Termination of restriction order, patient treated as though ordinary hospital order (without restrictions) on date restriction order ceased.

Miss Dimitriou for defendant makes three submissions.

1. Since patient's RO deemed to have ceased, application made under s70 also lapses, because s70 applications are made by restricted patients (by definition) (see s79).

2. Regime of restricted patients is different to that of non-restricted patients. Statutory scheme does not envisage floating from one to another. Application under s70 - can only (first) apply 6-12 months from HO. Contrast with claimant - by HO under s41(5) (notional/deemed HO) - right to apply within first six months as if non-restricted patient.

3. Procedure applied to restricted/non-restricted patients differs. Secretary of State must participate in restricted hearings. MHRT Rules 1983 r6 (statement by SoS within 3 weeks). If s70 application continued - apply mandatory language of r6 - "SoS shall send...". When pressed, Mr S says SoS drops out of the picture because patient no longer restricted and SoS no longer has interest. I can't reconcile that with the mandatory word shall in r6 (!) The concession - rules re SoS not apply to persons in C's category (ceased to be restricted patient) - disclosed unreality of situation.

Two domestic authorities of some relevance, neither directly in point.

R (M) v South Thames MHRT [1997] EWHC Admin 797. Change from s2 to s3, not deprive of MHRT. Unsurprisingly - is important ... . Difference in status s2 to s3 relates to provisional or other nature of detention. s2 is provisional for investigation; s3 is enduring. Unsurprisingly - where apply - initial 6 months of s2 (!) should continue Tribunal jurisdiction when 6 months elapsed. Right of appeal under s2 and s3 much the same. In each case, as soon as admitted can apply, rules of participation same, no provision re SoS. Collins J decision neither questionable or inconsistent with Tribunal in this case.

R (SR) v MHRT [2005] EWHC 2923 (Admin) Stanley B. Also unlike present case. Like present, different statuses treated. At [22] "s72... made". Fortifies my observations. Separate treatment of admission under various categories. Fails to support fluidity/movement between patients in different categories (which C contends for). At [32] "if the C... see section x". Close to Mr S's argument - s70 appeal and immediate s69 appeal. Result unlikely to have been intended given restrictions on when can apply.

Further points.

Patient in C's position - placed at disadvantage by treatment of application made under s70 as though s69(2)(a). Patient - strategic decision - right time to make applications. Limited in number. Predict improvements.

Miss D - not Tribunal's policy to impose a hearing under s69(2)(a) when s70 application. Policy is to assist to avoid any delay in treatment by treating applications under s70 as s69(2). Indeed whole purpose of s69(2)(a) is to assist patients in N's position (!). Quotes s69(2). Can apply in first six months. Miss D says it would be otiose if Mr S correct.

Mr S at end of opening made Article 5(4) point. Readily accept obligations - not by practice (particularly administrative practice) (?) So long as statute contrary. T's case - application under s70 not in law deemed as s69(2)(a) from when status ceases. Practice is to treat as though made under s69(2)(a) so as to avoid patient being under disadvantage of having to wait months (application form and wait any time at all).

An error of Tribunal administration. Mr N was told his application under s70 had expired, and told need reapply under s69(2)(a). Miss D - 1st correct - 2nd incorrect: administrative practice of treating s70 as s69 (!) If it were a case of mere administrative practice to correct error of law, would have to agree with Mr S. On closer examination conclude it is not. s69(2)(a) is specific to patients who've had right to apply previously. If patient rely on old s70, no purpose in s69(2)(a) (!)

No inconsistency in statute and ECHR Article 5 requiring access to independent and impartial tribunal capable of determining case in reasonable time, regular reviews.

This application must fail.

Other

Hearing 19/12/08

Plender J

Mr Southey (instructed by Campbell Law) for MN

Miss Dimitriou (instructed by Treasury Solicitor) for MHRT

This case might well be appealed.

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