DOH referred my client as her application was not processed by the MHAA in time.
Client now wishes to withdraw but the Tribunal are insisting that the patient cannot withdraw her application and it must be done by the DOH.
Anyone got a view on this?
R.17(3) TPR 2008 highlights that FTT do not have the power to withdraw S.68, S.71(2) or s.75(1) references. R.17(2) refers to the withdrawal not taking effect unless the tribunal consents to the withdrawal, except:
R.17(2)(b) TPR 2008- where proceedings have started as a result of s.67 or 71(1)
You can withdraw a discretionary reference, but not a mandatory one. I had this recently when I applied to withdraw - the tribunal said I couldn’t withdraw because it was a reference. By this time it was after 4pm…so I had to make the application to the panel the following morning and they accepted the request to withdraw. They were a bit puzzled as to why the case worker hadn’t accepted it the previous day.
That was my understanding as well
I have always thought that: (a) a patient can withdraw his case, with the tribunal’s consent; and (b) a reference maker can withdraw a discretionary reference, without needing the tribunal’s consent, but cannot withdraw a mandatory reference.
I didn’t think the patient could withdraw a reference at all, as I had interpreted “its case” in rule 17(1)'s “a party may give notice of the withdrawal of its case” as meaning the case of the person who made the application or reference. This is consistent with the wording of rule 17(3) which says: “A party which started a mental health case by making [mandatory reference] may not withdraw its case.” See Withdrawal (MHT).
The tribunal which consented to the patient’s application to withdraw the discretionary reference must have thought differently, i.e. that “its case” in a reference case means the case of the reference maker or of the patient.
Rob
That doesn’t sound right. Under Rule 17 it is parties who can apply to withdraw. But the definition of “party” in Rule 1 excludes the SofS in s67 cases.
Richard
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Rule 1 seems to mean that in unrestricted cases the reference maker isn’t a automatically party and so can’t withdraw the reference unless added as a party by the tribunal. Thanks - I hadn’t spotted that before!
This way of thinking is interesting… if the patient can withdraw a reference then that would include a mandatory reference too, with the tribunal’s consent, as the prohibition on withdrawing mandatory references only applies to the reference maker (once added as a party, if necessary).
I’ve never known them allow a withdrawal in such a case. What has happened in the past is that the patient instructs the solicitor, everyone attends and the hearing goes ahead. I take it they are on a S2?
@Rob_Beech How did the tribunal/DHSC deal with the request to withdraw? Thanks.
So what happened in this case was that STJ 1 & then 2 both indicated that they wouldnt accept a withdrawal on the basis that only the DOH could make it.
I pointed out the definition of party in a long letter and the very helpful STJ Rickman dealt with the matter and consented to the withdrawal. I also spoke by phone with STJ Chahal afterwards who confirmed that this approach was correct and a DOH referral can be withdrawn by the patient because they are a party to the proceedings.
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If the tribunal is taking the right approach here, in allowing a patient to withdraw a reference, then the patient can withdraw any discretionary reference without even needing the tribunal’s consent (rule 17(2)(b)). Did STJ Rickman or Chahal express a view on that?
Was the question of a patient withdrawing a mandatory reference raised?
I’ve just noticed that the rule 22 of the Welsh rules is clearer and takes the approach above. An applicant may withdraw an application with the consent of the tribunal, and:
(4) A reference made by the Welsh Ministers or the Secretary of State in circumstances in which they are not by the terms of the Act obliged to make a reference may be withdrawn by the Welsh Ministers or the Secretary of State, as the case may be, at any time before it is considered by the Tribunal and, where a reference is so withdrawn, the Tribunal shall inform the patient and the other parties that the reference has been withdrawn.
That must have been based on rule 29 of the old Mental Health Review Tribunal Rules 1983, for England and Wales, which said:
(d) a reference made by the Secretary of State in circumstances in which he is not by the terms of the Act obliged to make a reference may be withdrawn by him at any time before it is considered by the tribunal and, where a reference is so withdrawn, the tribunal shall inform the patient and the other parties that the reference has been withdrawn.
I don’t think that the current rules really are ambiguous. But if they were, do you not think the draughtman’s intention must have been to replicate the long-standing position that it is applicants who withdraw applications but reference-makers who withdraw references?
I think the current tribunal approach is wrong.
Jonathan
The change was deliberate. I was the lead DH official at the time and it was my idea (or fault, if you prefer).
The process at the time was (and I assume still is) that DH would know nothing about a patient it was referring except what it was told in the request for SofS to make the reference - and had no legitimate interest in knowing more. After making the reference, DH had no further stake in the case. It would not be informed of the hearing date, nor the outcome.
So my view was that requiring patients to come back to SofS to ask for a reference to be withdrawn was either an unnecessary bureaucratic step, which added no value, or else would require DH effectively to make a decision on the patient’s behalf which it was not an appropriate body to make. Either way, better to let the patient deal directly with the tribunal.
Richard
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Thank you very much for sharing this! At the risk of digging myself into a deeper hole, I’m not convinced yet that the draughtsman implemented your idea…
It all comes down to the interpretation of “a party may give notice of the withdrawal of its case” and who the “it” is.
I think “it” is always the person who started the proceedings: if X makes the application or reference in any HESC jurisdiction then it’s X’s case and X can withdraw its case, subject to the stated constraints. The generic wording “it” seems to be there just to cater for multiple jurisdictions in one set of rules.
You say that in an SSHSC discretionary reference “it” is the patient. I see what you mean about the definition of “party” in the rules. The rules are woolly about parties… rule 9 only allows the addition of a “respondent”, which isn’t part of the definition of “party” in a mental health case, but would anyone argue that the tribunal can’t add a party? Lady Hale was happy to gloss over the details (Brenda Hale, Mental Health Law (6th edn, Sweet and Maxwell 2017), p293):
The parties to the proceedings are the patient … and any other person who starts the proceedings by making an application (Tribunal Rules, r.1(3)). Does this include the Secretary of State for Health who makes a reference under s.67? Perhaps so, as an “applicant” means any person who starts tribunal proceedings in any way (r.1(3)). Be that as it may, the tribunal can add anyone else as a respondent (r.9(2)).
So, do you think “it” could simultaneously be the patient and the SSHSC if he is made a party? Or do you think the SSHSC now never has the power to withdraw a reference? In other references and applications where the SSHSC, SSJ or NR is a party from the outset, is “it” that person and/or the patient?
The usual view of “Notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal except … in proceedings started by a reference under section 67 or 71(1) of the Mental Health Act 1983” is that the SSHSC/SSJ can withdraw a discretionary reference even without the tribunal’s consent. If you are right then, if the rules are to be followed, the patient can withdraw a discretionary reference even without the tribunal’s consent. This doesn’t sound like it was your intention.
The usual view of “A party which started a mental health case by making a reference to the Tribunal under section 68, 71(2) or 75(1) of the Mental Health Act 1983 may not withdraw its case” is that the hospital managers/SSJ cannot withdraw a mandatory reference and therefore, because it is the reference maker who would withdraw a reference, mandatory references cannot be withdrawn. If you are right then the patient could withdraw a mandatory reference, albeit subject to the tribunal’s consent.
It doesn’t make a difference to who’s right but I’m in good company in my interpretation 
Lady Hale says (at p293 again):
The general rule is that any party can withdraw his case by notice in writing or orally at a hearing (r.17(1)), but the tribunal must consent, except when the Secretary of State for Health wishes to withdraw a reference under s.67 or the Justice Secretary a reference under s.71(2) (r.17(2)). Those references are discretionary. Mandatory references by the hospital managers under s.68, or by the Justice Secretary under s.71(2) or 75(1) cannot be withdrawn at all (r.17(3)).
Bartlett and Sandland say (Peter Bartlett and Ralph Sandland, Mental Health Law: Policy and Practice (4th edn, OUP 2013), p520):
An application or referral may be withdrawn at any time by the party who made it, in writing, before the hearing or other disposal of the case by the tribunal, or at the hearing, orally, with the agreement of the tribunal (SI 2008/2699, r. 17(1), (2)), with the understandable caveat that withdrawal of a mandatory reference made under ss. 68(1), 71(2) or 75(1) (SI 2008/2699, r. 17(3)) may not be withdrawn, as such referrals are made when a patient’s case would not otherwise come before a tribunal.
Richard Jones says (Richard Jones, Mental Health Act Manual (24th edn, Sweet and Maxwell 2021), page 876):
This rule, which enables an applicant to apply to the tribunal in writing to withdraw a case, does not apply to mandatory references (para.(3)). A discretionary reference may be withdrawn (para.(2)(b)). A withdrawal cannot take effect without the consent of the tribunal (para.(2)).
Does any of this persuade you?
Jonathan
I’m still not persuaded that the rules can be read as giving anyone except the patient the right to withdraw a s67 reference, but I agree the drafing is not as straight-forward as it might have been.
As you say, the key words from Rule 17 are "“a party may give notice of the withdrawal of its case”.
To me, “It” must mean a party, and SofS is expressly not a party to a s67 referral, whereas the patient is. Moreover, the use of the word “party” must, I think, be deliberate. If it were intended to mean only the party who started the case, the word “applicant” (as defined in Rule 1) would have been used.
So the question, to my mind, is not what “it” means but what “case” means.
At the time the rules were being drafted, I think I understood “case” to refer to the proceedings taken as a whole. In a s67 reference it seemed self-evident that proceedings were solely about, and for the benefit of, the patient, so the only sensible answer to the question “whose case is it ?” would be “it’s the patient’s case”. It would be nonsense to regard it as SofS’s case, since SofS plays no part in it and has no interest in its outcome (unlike, say, a referemce under s86 - removal of foreign patients - where it is SofS himself seeking a particular outcome).
But looking it again, I now wonder whether the drafter might actually have been using “case” to mean the case (ie desired outcome) advanced by a party within the proceedings. If so, the rules of withdrawing would apply to a respondent’s case as well as to the applicant’s.
Either way, the effect would be that the patient, and not SofS, would be the one with the right to withdraw. (Although if the second interpretation is right, it wouldn’t mesh very happily with the restrictions in Rule 35 on when the tribunal can dispose of mental health proceedings without a hearing).
I’m afraid I can’t remember what I was thinking on the question of patients needing (or not needing) permission to withdraw a s67 reference. I agree that from one angle it looks a bit anomalous that they don’t need the tribunal’s permission. But it may nonetheless have been deliberate. Under the old MHRT rules, SofS did not need permission to withdraw a s67 reference - so we may well have thought it wrong to require a patient to do so.
I don’t think I’m qualified to have a view on whether the tribunal has a power to add people as parties to cases outside the rules. But I do think it would be beyond absurd for a tribunal to have to add SofS as a party solely for the purpose of allowing a s67 reference to be withdrawn.
Truthfully, I also cannot remember whether the rules were deliberately framed to allow patients themselves to withdraw mandatory references with the tribunal’s permission. But I suspect it was deliberate, and from a policy point of view strikes me as correct. The reference, although mandatory, is still for the patient’s beenfit, and I cannot see why a patient should be denied a say in whether it goes to a hearing. I don’t see that Art 5(4) would require a tribunal hearing come what may (and you could probably mount an Art 8 case for why the patient should at least have the chance of withrawing).
Richard
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Jonathan
On further reflection, I think you’re right. The drafting doesn’t eliver the policy intention unambiguosly.
Rule 1 deliberate excludes SofS from being a party in s67 referrals. Rule 17(1) expressly provides only for a party to withdraw “its case”. As a matter of ordinary English, it is reasonable to describe a s67 referral as the patient’s case. But that reading doesn’t sit entirely easily with the use of the same words in 17(3), which clearly treat a mandatory reference as being the case of the person/authority who had to make it.
So that seems to leave the tribunal with four possible interpretations:
(i) no-one can withdraw a s67 referral - which would be a surprising result, and one for which it’s hard to think of a policy rationale;
(ii) SofS can withdraw it - but that goes against the express words of 17(1);
(iii) SofS can withdraw it, but only after being added as a party - which would be procedurally preposterous, and relies on the tribunal having an implicit power to add parties outside the rules;
(iv) the patient can withdraw it - which is, at least, a possible reading of 17(1), albeit one that requires a bit mental gymnastics, and for which there’s a plausible policy rationale.
Of these, (iv) seems the least worst fit, which may be why the tribunal has adopted it.
Richard
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Thanks for your detailed responses. I like the way you set out the four interpretations, so I’ll focus on them.
I think the third interpretation (being the first interpretation once the SSHSC is added as a party) is the correct one. Yes, it is ludicrous that the person intended to have the ability to withdraw his case is unable to do so simply because he is not within the definition of a “party”. But looking at the rule as a whole (in particular rule 17(3) which you pointed out) that is clearly the situation. It doesn’t involve any mental gymnastics, or consideration of policy rationales – just an acceptance that they made a hames of writing the rules. A direction appointing the SSHSC as a party might seem absurd but would be a simple enough response to a rare event. In the longer-term, the rules in relation to parties and withdrawal need to be tidied up to make sense, though the answer isn’t simply to use “an applicant” instead of “a party” as from rule 17(2)(c) it looks like in SEN cases the respondent can give notice of a withdrawal too.
Part of me still sort of likes the second interpretation, with the the tribunal’s case management powers being used to paper over the cracks: if tribunals subject can appoint litigation friends without the rules even mentioning them (e.g. R (EG) v Parole Board (2020) EWHC 1457 (Admin)) then maybe anything is possible.
Your favoured fourth interpretation could be subdivided into two: (a) ignoring rule 17(2)(b) (which is what the tribunal is arguably doing by purporting to consent to the withdrawal of a discretionary reference); and (b) following that rule, so that the patient can withdraw the reference without the tribunal’s consent. A tribunal could disobey its rules if that were considered necessary to comply with the Human Rights Act 1998 (Lady Hale again, in RR v SSWP [2019] UKSC 52) but that seems like a sledgehammer to crack a nut, especially as any arguable need only arises from a subversion of the meaning of the rule.
If the fourth interpretation were right – “its case” being treated as being the patient’s case – then that would have knock-on effects for other types of case. Would you always have only the patient able to withdraw (as you propose for SSHSC discretionary references) or the application- or reference-maker as well?
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Discretionary references by the SSJ. These are the closest comparators, the difference being that the SSJ is a party in restricted cases. But unlike the usual case with the SSHSC, the SSJ might have his own reasons for referring and not wanting the case withdrawn (e.g. guidance prior to the closure of the DSPD unit at Broadmoor).
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Nearest relative applications. I can see your Article 8 argument here in a rare case, but the better answer would be sensible use of the tribunal’s case management powers and/or displacement proceedings.
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“Removal of alien patients” cases where the SSJ seeks the tribunal’s approval. It wouldn’t make sense for the patient to have the power to withdraw (even if the tribunal would likely withhold consent) but does make sense for the SSJ to have that power.
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Mandatory references by hospital managers or the SSJ. These are essentially a safeguard for those who can’t or won’t apply to the tribunal (including “because they are reluctant to upset themselves or the hospital staff”: see p288 of Lady Hale’s book). To allow the patient (or anyone) to withdraw these would be to weaken or remove that safeguard.
Maybe we should just propose amendments here and aim for the first “crowdsourced” tribunal procedure rules amendment… on a grander scale, Kris Gledhill once published an article with detailed amendments to guardianship to replace DOLS which would have saved a lot of heartache 