Good morning
If a patient who was on a s3 and had a Tribunal coming up as a result of a s68(2) referral, does the Tribunal have the jurisdiction to hear if the patient is placed on s7 guardianship order before the hearing?
I note that AD’A v Cornwall confirmed that if an application made whilst under s3 the Tribunal would have jurisdiction, but does this apply to referrals?
Yes - the case law escapes me right now but applications are treated the same as referrals.
You can see the list of jurisdiction cases (and how there’s no differentiation between applications and referrals) here:
Coming back to this - in doing some related research today, I’ve found an authority for the above.
p.26 of MH (by her litigation friend, OS) v Secretary of State for the Department of Health [2005] UKHL 60:
“A reference to the tribunal must be considered in the same way as if there had been an application by the patient: see r 29. Hence although the initiative is taken by someone else, the patient’s rights are the same.”
However, this refers to the (now defunct) r.29 of the MHRT Rules 1983 (replaced by TPR 2008).
Maybe someone with better legal research skills than me can find the reasoning for why this wasn’t carried over to the TPR and whether it’s still good law!
Maybe this, from KF v Birmingham and Solihull Mental Health NHS Foundation Trust [2010] UKUT 185 (AAC):
- Second, we agree that there is no reason to hold that references to the First-tier Tribunal should be treated any differently to applications in this regard, and indeed every reason why they should be treated in the same way.
The subsequent paragraphs give various reasons for that conclusion.
Knew you’d come to the rescue Jonathan 