Can you help - P was recalled/revoked on his CTO and referred for a MHT. His hearing is tomorrow and yesterday he was discharged back on the CTO. Am I correct in assuming that we cannot now ask for a paper hearing as although it states in Rule 35 (3) that you can ask for a CTO paper hearing (a) in the case of a patient who is a community patient, the patient or the patient’s representative has stated in writing that the patient does not wish to attend or be represented at a hearing of the reference, this paragraph does not help us as when he was under the s3 detention which underpinned the reference, his case had not previously been considered by the Tribunal 5(a) so is he prohibited from having a paper hearing (5*(b)the patient’s case was last considered by the Tribunal without a hearing* is not relevant)?
I would request one in those circumstances.
R.35(3) doesn’t differentiate between types of s.68 references. R.35(3)(a) only requires that the patient is a community patient, not that he was a community patient at the time the reference was made. As the patient is presently a community patient, I’d argue R.35(3)(a) is engaged and therefore a paper review would be permissible.
That being said, if the hearing is tomorrow the request is unlikely to be dealt with in time. If the hearing will convene either way, it would be more cost-efficient to continue with it (even if no positive submissions are made).
I agree he is currently a community patient (by 3 days) but isn’t he excluded from a paper review as para 5 applies - the patient’s case has not previously been considered by the Tribunal?
The full text is:
(5) Paragraph (3)(b) does not apply where—
(a) the patient’s case has not previously been considered by the Tribunal, or
(b) the patient’s case was last considered by the Tribunal without a hearing.
R.35(5) only creates exclusions for Paragraph 3(b) which concerns inpatients. It doesn’t create exclusions for community patients as they fall under Paragraph 3(a).