When does the “3 years” start for the purposes of s.68(6) MHA?

When does the “3 years” start for the purposes of s.68(6) MHA?

Client received her s.37 order in April 2020 and has not had a MHT since.

S.68(6) MHT: “The managers of the hospital shall also refer the patient’s case to [the appropriate tribunal] if a period of more than three years (or, if the patient has not attained the age of 18 years, one year) has elapsed since his case was last considered by such a tribunal, whether on his own application or otherwise.”

Client was before the s.37 order detained under a variety of provisions of the MHA including s.2, s.3 and latterly s.38 MHA. The client had been continuously detained for a period well before the s.37 order (since at least August 2018 with a last MHT in March 2019 when under s.3). The s.38 orders started in July 2019.

The Crown Court is not “the appropriate tribunal” for the purposes of the MHA for s.68(6) as far as I can see and only the FTT is.

Does the 3-year period for the purposes of s.68(6) start running from:
a. When the client had her last MHT (if she had one during the period of continuous detention)? That would indicate a referral date of March 2022.
b. The date when the hospital order was made? That would make the referral date April 2023.

If (a), does it make any difference if the section immediately preceding the s.37 was an appealable section (e.g., s.2 or s.3) or one which could not be appealed to the FTT (e.g., s.38)?

The reference guide at para. 6.51 states:

In the case of unrestricted part 3 patients whose cases have never been
heard by the Tribunal, the three year (or one year) period begins as set out in
figure 32.

If the patient was not previously a restricted patient or transferred from outside of England & Wales, it states this starts from “The date of the hospital order or transfer direction”. Given that the S.37 order is some form of judicial oversight (and the 6-month reference is not made for this reason), I would interpret this as the referral date being 3 years after the hospital order is made. Hoping someone has a definitive answer though.


Thanks very much for replying Zac.

I can see that the Reference Guide says it’s 3 years from the hospital order but I can’t see where this meaning derives from.

The explanatory notes to s.37 of the MHA 2007 (which substituted the new s.68 MHA in place of the old s.68 MHA) says as follows: “157. Finally, section 37 amends Schedule 1 to the 1983 Act to ensure that the new provisions continue to apply where appropriate to unrestricted Part 3 patients (i.e. mentally disordered offenders not subject to the special restrictions under section 41 of the 1983 Act). Only those Part 3 patients who are transferred from a guardianship order to a hospital order qualify for a referral by the hospital managers after the first six months. Part 3 patients placed on a hospital order will not be entitled to a referral in the first six months of their detention, as their initial detention has been subject to judicial consideration by the sentencing court and they cannot themselves apply to the MHRT in that period. The referral at three years (or one year) will extend to all Part 3 patients detained in hospital or on SCT and not subject to restrictions.”

The old 3-year reference in the pre-2007 Act was in s.68(2).

That is now in s.68(6) and operates a little differently as not requiring a renewal of the MHA section as a trigger event to the referral but just the effluxion of time (3 years from the trigger event, which it says is the last MHT hearing).

Schedule 1 to the amended (post 2007) MH Act (which amends the Act for hospital order patients, etc.) doesn’t change the wording of s.68(6), as inserted by the 2007 Act, so that is left just as it is written in the amended 1983 Act.

I can’t see anywhere that the Act or schedule says that the start point for the 3 years referral point for a s.37 patient is the start of the s.37 order.

The missing words, which could theoretically be implied to make sense of s.68(6) now I guess could be: “if more than 3 years has elapsed since the patient’s case was last considered by the MHT during the currency of the current section” but it doesn’t say this and thus leaves the door open to taking in to account periods of detention prior to the making of the s.37 order when calculating the start point for the 3 years referral period.

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That’s because it doesn’t! The late, great Paul Veitch used to discuss on the panel course how the three-year rule applies to s37 patients, and the notes on the Mandatory and discretionary references page reflect what he said:

The three-year rule applies to unrestricted Part 3 patients but the wording of the section means that there should be no reference if the Tribunal had never previously considered the case. However, the Code of Practice (at Figure 20) states that a reference should be made where ‘[t]hree years have passed without their case being considered by the Tribunal (one year if they are under 18)’ and it is common for hospitals to follow the Code rather than the Act in this regard.

I’ve just looked up Eldergill’s book on this and see that the same problem arose with the old three-year reference too. On page 635 he suggests reading the duty as if it instead said “and his case has not been considered by a tribunal during the previous three years”.

Your question is different but arises from the same problematic wording. I have a feeling that a court considering this would go along with what the Code of Practice and Reference Guide now say (to give the patient the safeguard that Parliament intended). But I don’t think earlier periods of detention would be counted, if only because that might result in a reference having to be made during the first six months of a s37 hospital order, and the intention was clearly that there would be no reference during that period.

Thanks Jonathan. Very helpful background information.

I think that a Court if asked to consider my question may be troubled by the (at least theoretical) possibility of indefinite detention under the MHA without ever having to have a MHT hearing if you are correct and that periods of detention immediately prior to the s.37 order do not count in determining when the 3-year period starts.

So, imagine the following not wholly fantastical scenario.

Patient A never applies for a MHT hearing but does occasionally engage in making threats to the staff at the hospital. Due to the hospital’s “zero tolerance” approach to threats to its staff, staff are encouraged to report this to the police as and when. Every two or so years, this results in a new prosecution for A and a new s.37 order for the patient. This repeats ad infinitum.

If the time-to-count does not include any time spent before the new s.37, patient A will never be referred by the HMs for a MHT under s.68(6) and could spend a lifetime detained in hospital without ever having a MHT. I have had some clients who are probably not far off this scenario but the practical reality is that a person like patient A may never engage a solicitor so this precise scenario never comes to light.

Whilst there is a judicial decision every 2 or so years via the Mags or Crown Court in this scenario, this is a different judicial process (with a different mindset and onus) to the one contemplated under art 5 or by a MHT. The criminal court is there to think of “disposal” from the criminal charge and not of potential discharge from s.37 and the MHT do still retain the power of discretionary discharge even where the MHA detention criteria are met.

Even in my actual client’s scenario, the client has been detained in hospital for over 4 years (last MHT March 2019) before being auto referred for a MHT by the HMs.

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Other things cross “section boundaries” – e.g. the 3-month period in the Part 4 consent to treatment provisions, and the 6-month period period for references – so I can see the attraction of wanting this period to as well. But I think construing the 3-year rule to take into account prior detention isn’t the most natural reading and could lead to (I think) obviously unintended consequences, like a reference for a hospital order patient before or around the 6-month point.

You could maybe get a definitive answer by demanding a 3-year reference “early”, then judicially reviewing the hospital managers’ refusal or appealing the tribunal’s decision that it lacks jurisdiction.

I can see what you mean by the different nature of the court and the tribunal in the ECHR context, but look at what was said in De Wilde (mentioned by @Richard_Rook in Tribunal applications in first six months of hospital order - #4 by Richard_Rook):

Where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that Article 5 (4) (art. 5-4) obliges the Contracting States to make available to the person detained a right of recourse to a court; but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings. In the latter case the supervision required by Article 5 (4) (art. 5-4) is incorporated in the decision; this is so, for example, where a sentence of imprisonment is pronounced after “conviction by a competent court” (Article 5 (1) (a) of the Convention) (art. 5-1-a).

If the patient can’t or won’t make an application then the hospital managers should (and others might) request a s67 reference. The Code of Practice says:

37.45 Hospital managers should consider asking the Secretary of State to make a reference in respect of any patients whose rights under article 5(4) of the ECHR might otherwise be at risk of being violated because they are unable (for whatever reason) to have their cases considered by the Tribunal speedily following their initial detention or at reasonable intervals afterwards.

37.46 In particular, they should normally seek such a reference in any case where:

  • a patient’s detention under section 2 has been extended under section 29 of the Act pending the outcome of an application to the county court for the displacement of their nearest relative
  • the patient lacks the capacity to request a reference, or
  • either the patient’s case has never been considered by the Tribunal, or a significant period has passed since it was last considered.

Thanks Jonathan.

Recently, one of my colleagues successfully requested a DoH referral within the first 6 months of a s.37 and another colleague obtained a MoJ referral within the first 6 months of a 37/41 so anything is possible (hence I don’t buy the inviolability of the “can’t have a MHT in the first 6 months of a hospital order” argument).

The big issue with being reliant upon MoJ or DoH referrals system is not just the administrative discretion element but the fact that there is nothing inevitable about someone picking up on the need for a referral so as to actually make the application to the SoS for a referral in a suitable case, so this system is therefore arbitrary and not 100% reliable.

A judicial decision on this question (i.e., whether the 3 years can start running before the s.37 starts) may never happen as the sensible thing for a hospital MHAO to do if challenged about this in JR would be to ask the SoS to make a referral in any event. Only if the SoS declined to do so (which I think is unlikely) would the JR vesus the hospital not then be academic.

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You have nearly persuaded me so I’m sure could persuade an MHA Administrator. The FTT would likely strike it out, the MHAA might get a s67 reference, but the UT might end up giving guidance even if it becomes academic. Problem solved! :slight_smile:

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You’ve given me an idea.

Although MHT panels are traditionally not inclined to look at the validity of client’s detention papers, the FTT must (given that this is the basis from which they draw their jurisdiction to hear cases under the MHA) be interested to know how to determine what is and what is not a valid or invalid application or reference and they can only do this if they take a view on what is and what is not a valid or invalid application or reference.

I will see if my client is OK with my asking this question of the FTT.

I will report back.

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What happened with your patient in the end?

When writing the question in Six-month reference and notional s37 patients today I nearly added the following paragraph, but then I remembered this topic and realised it belongs better here. It seems to be almost the same legal question as yours but applied to a different factual scenario.

If a patient was originally transferred under s47/49 and that changed to notional s37, when would the three-year period commence? Jones (25th edn, 1-933) says it’s the date of the notional s37. That makes some sense as s68 doesn’t apply at all while the patient is restricted (sched 1 Part 2). But I wonder whether the wording of s68(6) would mean that “since his case was last considered by such a tribunal” really goes back to the s47/49 date.

What do you think?