Tribunal on the last day of s2, can the panel consider criteria for s3?

Law and practice Mental Health Tribunal
1

Where a tribunal is listed on the last day of a s2 - can the panel consider the s3 criteria if the RC indicates in evidence that his intention is to regrade to the s3 or not?

Given the s2 is at the end, surely the question for the panel would be to determine the S2 criteria are met until midnight that day, as this is when it expires or not? Can they dteemine the s2 shoudl remain to allow a s3 to be

2

Hi. The tribunal will consider the section the person is on that day. Of course, RC can indicate what they want to do, but AMHP (or NR) shall be needed to make application. Tribunal will not apply the s3 criteria is P under s2 on the day. However, if P is made subject to a s3 on or before the day of the hearing, then tribunal will look at the s3 criteria, but they will not telescopically look at what may or may not happen when the s2 period ends. I would imagine the tribunal will be very keen to hear what the plan is if P is still under a s2 on the day.

3

Thanks - seems a little odd to be deciding whether the section applies for a matter of hours!

4

Not really - the Tribunal has to make their decision about the section on the day of the hearing. If the Tribunal find that the patient does not meet the Section 2 criteria, they cannot then be placed under Section 3 unless there’s been a change in circumstances (see: R (von Brandenburg) v East London and City MH NHS Trust [2003] UKHL 58).

5

Sorry to jump in, what would be the position then if the S2 was upheld on the last day? RC has to put in place S3 presumably? If they accept voluntary patient either next day or discharge beforehand, does that undermine their evidence to the panel the day before?

6

Rather than a full-bodied response, I’d just briefly mention two points:

  1. The RC isn’t the deciding factor for a Section 3. They might give one recommendation, but it’s down to the other doctor to recommend and then the AMHP to have the final say. It’s not uncommon for Tribunals uphold a Section 2 only for it to expire a few days later; and

  2. Unless there were any recommendations made (very rare for Section 2 cases), the Tribunal wouldn’t continue to have oversight of the patient’s case. There would be no scrutiny after the hearing concluded.

Hope that helps!