Tribunal applications in first six months of hospital order

**Case (Change in status - s47/49 to s37/41).** CS v Elysium Healthcare [2021] UKUT 186 (AAC) — The patient applied to the MHRT for Wales while subject to a s47/49 restricted transfer direction; then the Court of Appeal quashed the underlying IPP sentence, replacing it with a s37/41 restricted hospital order; then the MHRT decided that following the change in status it lacked jurisdiction to consider the application. The Upper Tribunal set aside the MHRT's decision, on the basis that the patient had remained a restricted patient throughout, and remade it accordingly. Elysium Healthcare was criticised for its "lamentable" failure to comply with case management directions, which delayed proceedings (as did the Upper Tribunal's own inefficient administration).
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Interesting that the MoJ supported this appeal in part on the basis that Art 5(4) might be breached if this patient had to wait for six months before he could apply again to the Tribunal after the Court of Appeal substituted a restricted hospital order for the prison sentence that had until then underpinned his s47/49 status. In the past that argument would have been anathema to MoJ. They would have said that the appeal court’s decision to impose the hospital order was by itself sufficient to satisfy Art 5(4). Wonder if this represents a genuine change in attitude by MoJ, or just a failure to join the dots. I suspect the latter, but if it’s the former it raises the question whether they now think that the general prohibition on Tribunal applications within six months of being given a hospital order is no longer Art 5(4) compliant.

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Maybe they took the position they did because CS was subject to the two sections (s47/49 then s37/41) in relation to the same offence. That might also explain the difference in approach taken in GM v Dorset Healthcare University NHS Foundation Trust [2020] UKUT 152 (AAC) (tribunal lost jurisdiction on change of status from s3 to s37 hospital order). GM wasn’t mentioned in CS: maybe the pleadings were drafted before GM was published on 25/6/20.

The SSJ was probably also influenced by the patient’s argument that the substituted s37/41 began on 14/5/08 (when the quashed IPP had begun) rather than 5/3/20 (the date of the Court of Appeal decision), which would mean that on 21/1/20 (when the tribunal application was made) the patient would have been eligible to apply under s70 as a (s37/41) restricted patient. The six-month period would have been ancient history. It’s a pity the judge didn’t address this point (which must be correct) and it would be interesting to know what date the MHT and MOJ consider to be the start date of CS’s detention for tribunal eligibilty purposes.

It’s harder to understand why the judge distinguished R (MN) v MHRT [2008] EWHC 3383 (Admin) (tribunal lost jurisdiction on change of status from s47/49 to notional s37): it seems to be because MN had lost his “restricted patient” status and was able to apply to the tribunal during the first six months of the new section. But CS would also have been able to apply to the tribunal straight after the change in status (if the hospital order had begun over a decade earlier). MN, with the judge focussing on preventing “two bites of the cherry”, doesn’t fit well with the logic of the other cases. Maybe the UT just preferred to distinguish it on flimsy grounds rather than say it was wrongly decided.

That’s interesting. It’s probably not compliant with the entitlement to “take proceedings” to challenge detention, though I can’t think of any cases on the subject. I think the same applies to the second half of section 2 detention (certainly if the SSHSC doesn’t refer right up to the final day). The stuff about the sentencing court’s decision being sufficient authority to detain is an ex post facto justification for the situation which followed the decision to limit the pre-existing rights of unrestricted hospital order patients when limited tribunal eligiblity was extended to restricted patients in the 1983 Act.

I guess we could write to the heads of the MHCS to find out. I understand that they are aware of this forum!

The idea that a court’s decision to impose a hospital order itself satisfies the right in Art5(4) to “take proceedings” - at least for a period - is founded on the decision of the ECtHR in De Wilde, Oms and Versyp v Belgium (2832/66 etc), see in partic para 76.

As I recall, that’s the basis on which the six month exclusion rule for Pt 3 patients has been justified to date.

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Every day is a school day! I don’t think I’ve read that case before but will do - thank you. It doesn’t make much sense at first glance but then many ECHR decisions don’t. It likely explains why nobody has challenged the inability to “take proceedings” during the first six months! Maybe the government had the case in mind when they removed unrestricted hospital order patients’ right to apply during that period.

I still haven’t read your case (sorry) but here are some historical details about the six-month rule, taken from Brenda Hale, Mental Health Law (6th edn, Sweet and Maxwell 2017), page 189:

Ordinary hospital orders are almost indistinguishable from admissions for treatment under s.3. … There are only two important differences. … Secondly, the offender does not have the right of the patient admitted under s.3 to apply to a tribunal within the first six months of his admission. This was taken away from ordinary hospital order patients when restriction order patients were given rights of application (as a result of the decision of the European Court of Human Rights in X v United Kingdom (1982) 4 E.H.R.R. 188 …). Understandably, the government did not see why restriction order patients should be allowed to go to a tribunal within six months of the court’s decision that they were a serious risk to the public. But the right to a review is one of those “set forth in the Convention” and under art.14 these must be enjoyed by all “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. It was feared that restricted patients may complain of discrimination if ordinary hospital order patients could apply when they could not. Hence a right which have existed since the 1959 Act, had never been known to cause difficulties, but might benefit a few patients (of whom Michael Fagan, the Queen’s intruder, was one) was taken away.