My client has told me that she wishes to withdraw her application purely because of pressure from her family. In addition I have just received an abusive call from her brother demanding that I withdraw her application. I have permission from the client to share with the tribunal her reasons for withdrawal but from experience these will just go to a minion (rather than an STJ) who will inevitably accept the withdrawal. She has capacity to instruct me and the tribunal is tomorrow.
Any thoughts?
Hi,
I would make the application before the Tribunal tomorrow.
Tammy
Thanks Tammy
Do you mean that you would just put in an application to withdraw on the basis her family is coercing her even though it will simply be accepted, or would you not mention the coercion at all?
I should add that she wants to be discharged and has a good chance if she proceeds.
Hi Karen,
From what you say, this is not a mental capacity issue but a case in which the client is vulnerable to coercion of her free will to decide as per the Munby test for invoking the inherent jurisdiction in Re SA [2005] EWHC 2942 (Fam).
Only the High Court can invoke its inherent jurisdiction power but given the overriding objective of the FTT to deal with cases justly and the discretion the FTT has to grant (or not) a withdrawal then the FTT could conceivably, if alerted to the clientâs circumstances, decide not to permit the withdrawal as whilst the client has capacity, she is not exercising a free choice in seeking to withdraw and therefore it may not be in the IoJ to allow her application to withdraw (depending on all the circumstances).
Trickier may be how one can properly alert the FTT to the clientâs circumstances ⌠the practice/conduct issue of going against oneâs own clientâs capacitous albeit coerced instructions.
Would the client permit you to outline all the circumstances surrounding the withdrawal application in the CMR1? If not, you may be professionally embarrassed and need to withdraw from representing the client?
There may also be an adult safeguarding issue here of course to consider. Sorry, more questions than answers!
Ian
Hereâs part of my summary of Tribunal Policy: Withdrawals (23/2/15):
(1) Late withdrawals (where the request is received less than 48 hours, not counting non-working days, before the hearing) ⌠will be referred either to a registrar, salaried judge, or panel. (2) For late withdrawals: (a) the tribunal must be provided with full reasons why the patient wants to withdraw the application (and thus agrees to the continuation of detention or MHA order); (b) the tribunal will bear in mind that the need for, and right to, a periodic review of a patientâs detention is an important safeguard which is necessary for Article 5 ECHR purposes, and which should not be abandoned lightly, especially if the hearing may achieve some good, and if in doubt the tribunal should refuse to consent.
Thanks all. Sorry Tammy I think I initially misunderstood you and you meant that you would not submit withdrawal in advance but would do it in person.
I had come to roughly the same conclusion Ian. She does agree that I can set out the full circumstances and I will do this, including the abusive phone call I received. The problem is that I have done exactly this before on another case, frantically signalling that the withdrawal should not be accepted, but it was.
In addition I am alive to the huge pressure which the family are placing on my client which is , in itself, potentially compromising her mental health.
Jonathan, even very late withdrawals are accepted without question these days -even with very flimsy reasons-in my experience.
I am contemplating asking that the request is put before the Panel themselves as the excellent may well decline to accept it.
Sorry Karen, I didnât read your initial question properly hence my waffle about conduct issues.
Do let us know what happens and I suppose the general question still stands: what should one do about a put upon client who just wishes to withdraw due to family pressure but who doesnât wish the FTT to know this âŚ
Ian
Yes that is a separate issue, but even when they are happy for FTT to know in my experience it makes no difference. I am going to specifically ask for the request to be put before the Panel as the Judge is excellent and will probably refuse it.
In relation to Ianâs scenario, the old version of Law Society, âPractice note: Representation before mental health tribunalsâ (12/12/19) talked about âduress and undue influenceâ, and the current version talks about âreason to suspect that the instructions do not represent your clientâs wishesâ.
I think your client is being clever, and her instructions likely do represent her wishes - keeping her family happy by asking for a withdrawal, but telling to do it in a way that means the tribunal shouldnât agree.
Your plan to get the panel to decide sounds like the ideal solution.
Does she not have legal representation? If so, what is their take on it?
Hi Nicola
I am her legal rep!
I will check that out tomorrow Jonathan as I had not recalled that comment in the Guide for Reps.
So I asked for the request to be put before the Panel but instead it went to an STJ who refused it on basis that they should check whether the application should be heard so we convene tmw. The NR and also the brother who was abusive to me on the phone have applied to join the hearing so it should be quite a lively affair! Looking forward to it!
How did you get on with this in the end Karen?
The tribunal which sat had no knowledge of the previous application to withdraw so I filled them in. The relativesâ joined with the patientâs consent and I was expecting them to complain about the process and make their coercion plain-but they were quiet and politely -sadly! I asked MHT to explain to relatives that we had tried to withdraw but had been refused which they did.
The patient was anxious to avoid CTO and after RC evidence it was clear this was not being sought even though social report had said it was. After discussion with client she decided she wanted to withdraw on this basis and so we did.
She has now appealed again.
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