The Tribunal has no power to make statutory recommendations under s72(3) in restricted cases: Grant v MHRT (1986) The Times 28/4/86. But it may make extra-statutory recommendations in similar terms, which are informal and non-binding in nature. For details see the Hansard extract below.
- EC v Birmingham and Solihull Mental Health NHS Trust  MHLO 47 (CA) — The appellant restricted patients had sought extra-statutory recommendations, in relation to leave and transfer, but the First-tier Tribunal had refused, without hearing evidence, to make recommendations. (1) The parliamentary answer in relation to extra-statutory recommendations given by a Home Office minister on 28/10/87, and the fact that recommendations had been made and considered in the past, did not give rise to a legitimate expectation that the tribunal would entertain submissions that a recommendation should be made. (2) If the FTT had been faced with the contention that leave or transfer were necessary or available parts of the patient's treatment (in relation to the test in s72(1)(b)(iia)) it would have had to consider it, but in these cases it had not been. [Summary based on Lawtel and All ER (D) reports.]
(For Home Department, read Ministry of Justice; for Responsible Medical Officer, read Responsible Clinician; for Mental Health Review Tribunal, read Mental Health Tribunal.)
Medical Health Review Tribunals
HC Deb 28 October 1987 vol 121 cc261-2W
Mr. Irving asked the Secretary of State for the Home Department what steps his Department currently takes when, in relation to a patient to whom section 73 of the Mental Health Act 1983 applies, a mental health review tribunal includes in its written decision a recommendation that a patient be granted leave of absence or be transferred to another hospital or be transferred into guardianship.
Mr. Douglas Hogg Any such recommendation received in the Home Office is acknowledged, and any comments are offered which can usefully be made at that stage. Correspondence with the tribunal is copied to the patient's responsible medical officer, since it is for this officer to consider the recommendation in the first instance. If the responsible medical officer submits a proposal based on a tribunal's recommendation, full account is taken of the tribunal's views. At any subsequent hearing of the case, the statement which the Home Office provides will explain the outcome of any recommendation which the tribunal had made.
Mr. Irving asked the Secretary of State for the Home Department whether he intends to seek the amendment of section 73 of the Mental Health Act 1983 to give mental health review tribunals statutory power to make recommendations that a patient to whom section 73 applies be granted leave of absence or transfer to another hospital or transfer into guardianship.
Mr. Douglas Hogg No.