The rules say that a detained patient can only have a paper review if his previous case was considered with a hearing. If the patient had a full hearing in August and was subsequently discharged on a CTO which was then revoked can he still opt for a paper review? Arguably the August tribunal could be counted as the same ‘case.’
I’ve come back to this a few times as I’ve flip-flopped between schools of thought. If you have a client who wants a paper review on these circumstances, perhaps you should request one and ask that the decision is made public!
Thanks Zac. I was planning to ask and I assume that the tribunal office will probably just grant it as I doubt anyone is checking. I will probably just set out why we say he is eligible as we have to confirm that the details are true I think.
That amendment was very badly drafted, even on the second attempt, so it’s probably more useful to look at their intentions than what the words might mean. I think it was just meant to prevent a patient having two paper reviews in a row (as in their heart of hearts they know that oral hearings are superior) – while otherwise allowing as many reference paper reviews as possible, including on revocation. I think the concept of “the patient’s case” includes before and after revocation, and your patient could have a paper review now since the tribunal has considered his case and it was at a hearing.
Yes- I think that is the conclusion I came to , as he has remained subject to the MHA.
I had a look at this scenario - your patient failed their CTO and had it revoked. So their outcome and the recording of this will be against the patient.
If the patient has a paper review it is likely they will add all the negatives of what they wrote last time but now with all the failures of why their CTO was revoked. The structure will remain the same but updated. That will be on the forefront of their case.
In a live setting they will have more time to build and construct their case - so both circumstances will give the opposition a chance to control the situation to cement their conclusions. But it’s the degree the damage is measured. Not done.
With a paper hearing - damage is predictable and expected - new reasons of why the CTO failed will now be included. With a live hearing - same hearing but more time to cover any gaps. So the degree is slightly more damaging for a live hearing.
However - this is the key difference between a live hearing versus a paper hearing.
If you opt against a paper review - what you will then be doing is giving your patient an opportunity to present their counter arguments on record to why their CTO resulted in the way it did - it gives the client a chance to have their reasons on record and give anyone representing them a chance to defend their position. You have something to work with rather than accepting the opposition’s likely outcome.
By going for a paper review it may appear less damaging - but it is essentially denying the patient their voice. To have their voice heard on record - the opportunity to set the record straight.
Thank you for your thoughts Sarah. To reassure you ,it is only possible to opt for a paper review if the patient wants this and has capacity to choose a paper review. Therefore it is necessary for me to inform the patient of this option if they instruct me that they do not wish to challenge their detention.