When patients do not exercise their right to apply to the Mental Health Tribunal, references can (and in some cases, must) be made on their behalf.

Secretary of State for Health

The Secretary of State for Health can refer Part II patients at any time (s67(1))

Hospital managers

The hospital managers will make a reference to the Tribunal in certain circumstances (s68). The system has been changed by the Mental Health Act 2007. See Automatic reference scheme under s68 changed 3/11/08

The managers are: in relation to a community patient, the managers of the responsible hospital; in relation to any other patient, the managers of the hospital in which the patient is liable to be detained (s68(9)).

S68 applies to

• s2 patients
• s3 patients
• community patients (i.e. subject to s17A CTO)
• patient whose CTO has been revoked under 17F
• patient transferred from guardianship to hospital under s19

Six months rule

On expiry of the the period of six months beginning with the "applicable day" the managers must make a Tribunal reference, unless one of the s68(3) exceptions apply. The "applicable day" means (s68(5)):

• For s2, the date of admission under s2
• For s3, the date of admission (either the s3 date or previous s2 date)
• For community patients (i.e. on CTO), or where CTO has been revoked under s17F, the earlier of the s2 or s3 admission dates.
• For transfers from guardianship to hospital, the transfer date.

The exceptions are:

• a Tribunal application has been made under s66(1)(b) (by s3 patient), (ca) (by community patient in first six months), (cb) (by patient when CTO revoked), (e) (by patient when transferred from guardianship to hospital), (g) (by NR when barring order made) or (h) (by NR when displaced on certain grounds).

N.B. A withdrawn application does not count, and if a withdrawal is after the six month period then a reference must be made as soon as possible (s68(4).

N.B. An application made under s2 or s4 does not count either.

• a reference has been made by Secretary of State for Health under s67(1) (although this exception does not apply if the reference was made when the patient was under s2)

• a reference has been made under s68(7) (automatic reference on revocation of CTO)

The six-month rule does not apply to unrestricted Part 3 patients (see para 157 of Explanatory Notes).

Three years rule

The managers must also make a reference when it is three years from the last Tribunal. Where the patient is under 18, the period is one year (s68(6)). The three-year rule does apply to unrestricted Part 3 patients (see para 157 of Explanatory Notes).

Revocation of CTO

The managers must also make a reference as soon as possible after a CTO is revoked under s17F (s68(7)).

Secretary of State for Justice

The Secretary of State for Justice can refer Part III restricted patients at any time (s71(1)) and must do so where there has been no Tribunal for three years (s71(2)).

See also

• Eligibility periods for making applications to the Tribunal