On 8/12/08 the Chamber President issued a notice explaining that, until the Mental Health Act 1983 is amended in 2009, a patient who withdraws an application to the English Tribunal cannot reapply within the same period of eligibility; instead, he must ask for the original application to be reinstated. The necessary amendment came into force on 1/6/09 so this notice, although still on the Tribunals Service website, no longer applies.
The LSC confirmed that when an application was reinstated under the procedure described here, it was to be treated as if the patient had made a fresh application - and therefore there were two separate matter starts.
The necessary amendment was made by the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009.
Operation of section 77(2) MHA 1983 – disregarding withdrawn applications
There has been an oversight concerning the reference in s77(2) to applications withdrawn in accordance with rules made under s78 in that s78 was not amended to cover withdrawals under Tribunal Procedure Rules.
Accordingly, the only tribunal using rules under s78 is the MHRT for Wales and means that s77(2) currently gives the right to make a second application only where a withdrawal has been agreed by the MHRT for Wales.
The Ministry of Justice is aware of this and intends to make an amendment to s77(2) when it next lays an order amending primary legislation in relation to new tribunals. This is likely to be in February 2009 to take effect in April 2009.
In the meantime, it is recommended that a patient in England who has withdrawn an application to the First-tier Tribunal (HESC) Mental Health should apply under rule 17(4) of the 2008 Rules to reinstate the application if the oversight prevents a second application in the same relevant period. The rule is subject to a 28 day time limit, at 17(5), but the Tribunal has a general power to extend time under rule 5(3)(a) so an extension can be granted in appropriate cases.
8 December 2008
His Honour Judge Phillip Sycamore – Chamber President
Professor Jeremy Cooper, John Wright – Regional Tribunal Judges