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?