My client’s initial Section 3 started on 24/06/2024. It was renewed on 23/12/2024 and again on 22/06/2025. He applied to the Tribunal on 23/09/2025, but his case was referred by the MHA, and the hearings have been consolidated. Can I advise him to withdraw his own application and proceed with the reference hearing instead? If he is not discharged, can he apply again?
- whether he withdraws or not the reference hearing will go ahead - it is a statutory requirement.
- If he withdraws an appeal I don’t recall any bar on appealling again within the limits laid down in the MHA
- I think you meant the MHAA referred his case
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It’s his right to appeal, but from his representatives perspective, i hope he has a strong case. Otherwise, i don’t see how it serves his interests to have multiple hearings within weeks of each other, if that’s the question being asked. He can also appeal to the hospital managers.
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This raises the question of why the MHAN referred him, which you should check. It seems probable that they forgot to refer him after his renewal in December. This is why, when opening a new file you should always check the date of the client’s last tribunal, to ensure that they have not missed a referral as MHANs frequently do miss them.
Assuming that he has been correctly referred ( albeit late) you should certainly withdraw his appeal and then you can reapply before 22/06/2026 if your client does not succeed on the reference. Obviously, if you do not withdraw your appeal your client cannot apply again until after this date.
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I agree with Karen about checking the chronology and the type of referral made, and being careful not to get into this situation.
The patient should ask for his application to be withdrawn. It will be quite a while before he will be eligible again.
In general, the tribunal is not keen to consent to a withdrawal when there is a concurrent reference, probably because that could lead to more work and expense for them if the patient later applies.
Tribunal Policy: Withdrawals (23/2/15) states:
I remain keen to use the delegated powers that the Senior President has given to certain staff members to consent to timely withdrawals. However, in the light of the Code and AMA I have decided that a withdrawal should not be agreed by staff with delegated powers if the withdrawal request was received less than 48 hours (not counting weekends etc) before the tribunal hearing, or if the withdrawal appears to be merely tactical - such as where the case is part-heard, or if there are two cases that ought to be heard together and an attempt is made to withdraw one of them, or if an application for a postponement or adjournment has been made and refused and the withdrawal appears to be an attempt to get round the refusal. Such withdrawals will be referred either to a Registrar, Salaried Judge, or Panel - who will apply the principles set out in AMA.
Maybe in this case you could argue that, overall, refusing to consent would cause a detriment the patient as if the hospital had obeyed the law he would already have had a separate, reference tribunal.
Also, if I remember right, the relevant part of AMA was about consent to withdrawal being tantamount to a decision that the patient should continue to be detained without his detention being reviewed – but in this case the patient’s detention will be reviewed because of the reference, so the “principles set out in AMA” are at least neutral, and you could argue support your client’s withdrawal request.
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I have recently withdrawn two applications which had been joined with referrals with no issues at all. I suppose it depends who looks at it.
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That’s useful to know. I did wonder as I was replying whether things had changed since that policy was written.
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In both these cases the client had appealed and I checked and realised that they had missed references so I asked MHANs to refer . Once the hearings had been consolidated I withdrew the application. I waited for consolidation in order to preserve the existing hearing date.
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Apropos of nothing but this guidance has always rubbed me the wrong way - all litigation is inherently “tactical”. This is broadly accepted in less important cases in other courts (those not concerning someone’s liberty), but we draw the line when someone’s Art8 rights are in play.
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Two relevant ideas came from R (O) v MHRT [2006] EWHC 2659 (Admin): one was about “tactical” withdrawals (“if it takes the view that it is merely a tactical ploy and is not in the interests of the patient, it can refuse to accept the withdrawal”) and the other was about non-judicial staff consenting to withdrawals (“clearly the letter sent by the clerk was a letter which was not in accordance with the law in the sense that she should not have had delegated to her in the circumstances the power to deal with the application and to allow a withdrawal”). The first idea seems to have had more longevity! It suits the tribunal (and patients) for clerks to rubber stamp withdrawal requests, but suits the tribunal to scrutinise them within 48 hours of the hearing or when there’s also a reference. But, from what Karen says, they’re being more open-minded these days.
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