We have a client who is now subject to two S.37/41 orders - one made in 1997 and a further one made in 2024 for a different offence committed in 2022 for which he was found guilty for recently. How does this work legally and logistically? Would he be subject to two eligibility periods, one for the first S.37/41 and one for the second S.37/41, in effect then allowing him to challenge both independently? Or should he be absolutely discharged from the first S.37/41 to allow the second one to take over in effect?
1 Like
The situation was mentioned in passing in OO v Central and North West London NHS Foundation Trust [2024] UKUT 190 (AAC). My notes include:
The judge noted that each hospital order gives a right to apply to the tribunal and made some observations about procedural matters (including that, as this case would now be remitted to the MHT, the Secretary of State had agreed to make a discretionary referral in relation to the second order, that the tribunal can consolidate proceedings, and that in any event the Secretary of State would have a discretion to discharge the second order).
I agree that the patient would be able to apply twice as often to the tribunal. But I don’t think applications/references are so directly linked with the tribunal’s powers on the day that a second referral or application would be needed: I think if the tribunal were to discharge one order they would just have to discharge both at once. There aren’t any cases deciding any of this.
I’ve heard of the Ministry of Justice discharging one hospital order, at least when the other one is almost guaranteed never to be appealed, though it might suit the patient to have both.
2 Likes
A post was split to a new topic: Equality of Arms or Equality of Risk? Ethical Tensions in Forensic Patient Discharge Decisions