With S.37(N) cases, the provisions of S.41(5) mean that the start date for calculating when the referral should be made is the date on which restrictions have ended.
That’s correct but s.41(5) also states that the provisions of Part I of Schedule 1 MHA 1983 apply. Richard correctly points to Paras 2 and Paras 10 of this Schedule.
Para 2
Sections […] 68 shall apply in relation to the patient with the modifications specified in paragraphs 2A to 10 below.
Para 10
In section 68–
(a) […]
(b) subsections (2) to (5) shall apply if the patient falls within paragraph (e) of subsection (1) but not otherwise.
So, s.68 applies but it disregards s.68(2)-(5) unless the patient is transferred from guardianship to hospital under s.19 (which is a very unusual case).
S.68(3)-(5) are just additional qualifiers to s.68(2). S.68(2) is the six-month reference and is therefore disapplied. This is quite a clear statutory route to follow to conclude that six-month references do not apply to s.37 Notional patients.
Note that the referral is after 12-months if the patient is under 18.
This is correct, but only by virtue of s.68(6) which is the three-year reference for over 18s which becomes a twelve-month reference for under 18s.
I think that response may have been provided by a well-meaning HMCTS employee rather than a member of the judiciary, as Judges do not generally provide anything akin to legal advice. In any event, I think it’s relatively non-contentious that six-month referrals do not apply to Notional 37 patients. The more interesting question would be when the clock starts for a 3-year reference after s.49 restrictions have ended 