Apparently some hospitals make the reference 6 months after the notional s37 commences, and the tribunal secretariat accepts this without question. At other hospitals the first reference is made at the one- or three-year point.
I don’t think the 6 month reference applies to unrestricted hospital order patients (because of how schedule 1 applies s68 to them) and I think we’d have a duty to tell the tribunal that the reference isn’t valid, but am I wrong in either of those things? Thanks.
Jonathan - I agree with you that the 6 month referral does not normally apply to notional s37 patients, for the reason you give. (Page 76 of the Reference Guide expresses the same view.)
The logic, I think, is the same one that underlies the absense of a right for s37 patients to apply themselves during the first six months of their detention. Namely that, by definition all s37n patients will have had their first day in court (for Art 5 ECHR purposes) when originally sentenced. (Though in the case of former s47 patients, you could argue the logic is strained.)
I’d agree Jonathan. I’m not sure I agree with Richard as to the logic - the only authority dealing with their admission to hospital would be prison/healthcare services. Certainly as soon as the S.37N commences - the patient would’ve otherwise been released from prison so I can’t see how the judicial oversight of a criminal court would be linked to their MHA admission.
I agree we’d have a duty to tell the tribunal if we had any concerns about jurisdiction but I can’t think of a single UKUT decision which addresses this and it doesn’t seem to be common knowledge. I can’t imagine this question would have no definitive answer by now unless a number of Judges had waved the references through.