I have obtained a statutory recommendation for a client to be moved to a less secure hospital as they are no longer in the least restrictive option.
Tribunal was beginning of October 2020 however nothing has been done, having spoken to the home area they have advised that they will not be doing anything about the statutory recommendation as they don’t agree with it.
Can anyone point me in the direction of any case law of how I can enforce the statutory recommendation or anything which could assist in this case.
Did the tribunal agree to reconvene if the statutory direction wasn’t complied with?
yes they did.
They have ordered a position statement by the middle of December
Okay, that’s good.
So there isn’t any case law to enforce the SA as such (i am happy to be corrected if I am wrong), which would have to be challenged by Judicial Review, but at this stage you have the ability to return it to a hearing at which the Tribunal can review why and consider discharge. I would suggest that you get the position of the Home area in writing rather than waiting for any updating reports, get the position of the current MDT as well and then prepare your PS and file it and ask that the matter be relisted for a further hearing asap.
You may want to consider independent expert evidence to consider discharge and transfer.
It is a question of building up pressure on the home area really. Sorry, if you knew all this already.
Sadly you cannot enforce a statutory recommendation. Did the MHT give a date by which they would consider reconvening? A statutory recommendation without a reconvening date is never very helpful. You can use a statutory recommendation to exert some moral pressure but if the MHT is going to reconvene I would seek some robust directions to try and get representatives of the appropriate authorities to attend.
Sorry I hadn’t seen Ben’s reply when I wrote that- I wasn’t copying!
Thank you Ben. I am considering getting an independent social worker involved.
The other thing you might do is to look at what other options there may be for your client, if there are any. The tribunal are bound to ask and you need to make sure you know and can address them. You can also ask your independent expert to consider them.
I agree with everything said above. If you are not seeking independent evidence, and are confident about the Tribunal continuing to support, I would suggest an application to bring direction for PS forwards, knowing already what their position is going to be, and consider applying for a summons for the decision-maker from home area to attend the hearing so that you can cross-examine them, and get the FTT to re-issue the direction. If of course the direction stands notwithstanding having heard the evidence of the home area, your merit for JR would be (I would have thought) substantially higher. That’s probably the quickest approach but carries the obvious risk that the FTT say either “we agree with the local area as to the inappropriateness of the transfer” or “we have done all that we can, oh well”. Probably safest to get an independent for that reason, but I know that I have had clients before whose instructions would be to take the quicker, riskier route.