DOH Referral - withdrawing

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?