# Lawfulness of earlier first statutory referrals by the MOJ (and the relevance of the change in status cases)

**URL:** <https://forum.mentalhealthlaw.co.uk/t/lawfulness-of-earlier-first-statutory-referrals-by-the-moj-and-the-relevance-of-the-change-in-status-cases/4181>\
**Category:** Mental Health Tribunal\
**Tags:** referral, status-change\
**Created:** [6 September 2025 20:07 UTC](https://forum.mentalhealthlaw.co.uk/t/lawfulness-of-earlier-first-statutory-referrals-by-the-moj-and-the-relevance-of-the-change-in-status-cases/4181 "2025-09-06T20:07:23Z")\
**Posts on this page:** 1\
**Showing post:** 3

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**Author:** ![Jonathan](https://forum.mentalhealthlaw.co.uk/user_avatar/forum.mentalhealthlaw.co.uk/jonathan/32/88_2.png) [@Jonathan](https://forum.mentalhealthlaw.co.uk/u/Jonathan)\
**Post date:** [7 September 2025 07:44 UTC](https://forum.mentalhealthlaw.co.uk/t/lawfulness-of-earlier-first-statutory-referrals-by-the-moj-and-the-relevance-of-the-change-in-status-cases/4181/3 "2025-09-07T07:44:08Z")

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I’ve slept on it and I’m afraid have some more thoughts:

1. The policy says it’s based on the decision about tribunal jurisdiction in _CS_, but really it’s based on the underlying logic of the reason for that decision. _CS_ was about the fact that s70 doesn’t differentiate between different types of restricted patients who are detained in hospital when making applications, and the policy is really based on the fact that s71(2) similarly doesn’t differentiate when making references. That helps me understand something in point 1 above.

2. There are two separate questions, one about whether the tribunal retains jurisdiction (on either applications or references), and the other about the timing of the “reference clock” as you call it, but they depend on similar considerations.

3. I had a look at [Anselm Eldergill, _Mental Health Review Tribunals: Law and Procedure_ (Sweet and Maxwell, London 1997)](https://www.mentalhealthlaw.co.uk/Anselm_Eldergill,_Mental_Health_Review_Tribunals:_Law_and_Procedure_(Sweet_and_Maxwell,_London_1997)) and in relation to tribunal jurisdiction he was quite clear in chapter 10 that the statutory bar on applications meant that previous tribunal applications would cease to have effect. I wonder what he would say about this now, and about the reference clock. @medicolegal

4. The MOJ supported the patient’s arguments in _CS_ on tribunal jurisdiction, and it seems that the MOJ and MHT have been allowing s48/49 to s37/41 status change patients to continue with their applications for a while (see [Tribunal application 48/49-37/41](https://forum.mentalhealthlaw.co.uk/t/tribunal-application-48-49-37-41/1823)), so their new policy on the “reference clock” is just a continuation of this approach.

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