Lawfulness of earlier first statutory referrals by the MOJ

Law and practice Mental Health Tribunal
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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.

    (a) In relation to tribunal jurisdiction, I suppose if you treat s47/49 to s37/41 (CS) and recall (AC) as being effectively the same things (focussing only on the statutory bar on applications) we then would have two conflicting cases and the question would be whether the later overrules the earlier (I doubt it, especially as the later one is so sparsely reasoned and doesn’t expressly disagree, but I don’t know which should then be followed). If they aren’t about effectively the same things then they can both co-exist in relation to the different “provisions involved” (and I think that’s what most people would have thought).

    (b) In relation to the reference clock and the MOJ policy, I think CS with its focus on statutory construction (the generic use of “restricted patient”) is more relevant than AC with its focus on judicial oversight (and it being provided by the mandatory recall reference rather than the previous tribunal application). Eventually it might be that “s.37/41 necessarily restarts the reference clock” (see point 6 above) but I’m not sure it’s the law as it stands.

  3. I had a look at 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), so their new policy on the “reference clock” is just a continuation of this approach.

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