I have a client who applied for a tribunal when on s48/49 and who has now been put on s37/41. Apologies for the simple question but I cannot find a definitive answer as to whether the date which has been set can be retained to consider the s37/41 criteria. I have found case law relating to 47/49. Does anyone know of any 48/49 case law?
The 48/49 becomes nil and void and And so to does the application
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Thank you. Can you direct me to where this is said?
I’m sure that the s48/49 ends when the s37/41 begins. I’m not sure it’s because of s40(5). But I don’t think the ending of the section is decisive – for example, s2 automatically ends when s3 begins (s6(4)) but the tribunal retain jurisdiction to hear a s2 application/reference even when the patient is detained under s3 (R (M) v South Thames MHRT [1997] EWHC Admin 797).
There are no cases directly about your scenario. It has similarities with the case you found (CS v Elysium Healthcare [2021] UKUT 186 (AAC)) in which the tribunal retained jurisdiction despite a change from s47/49 to s37/41 essentially because the patient had “remained throughout a restricted patient”. Unless there is a strong countervailing public policy reason – as in GM v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 152 (AAC) which involved a change from s3 to s37 – I imagine you would get the same answer.
thank you Jonathan
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