JS v SLAM NHS Foundation Trust [2019] UKUT 172 (AAC)

Reinstatement (1) Reinstatement: "As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). ... Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole." (2) Respondent status: "[T]he Trust was properly named as a respondent on the appeal to the Upper Tribunal ... The Trust was the responsible authority and, as such, a party to the proceedings in the First-tier Tribunal ... On appeal by the patient to the Upper Tribunal, everyone else who was a party before the First-tier Tribunal became a respondent ... That is standard procedure in appeal generally. The Trust’s letter shows a confusion between an appeal and a judicial review. In the latter, the tribunal is the respondent, and others may be interested parties."

Note

In paragraph 3, UTJ Jacobs stated: "The tribunal gave its consent on 20 August 2018. That decision was made by an authorised member of staff purporting to act under the authority of the Senior President’s Practice Statement on Delegation of Functions to Staff and Registrars of 10 June 2014. In fact, that Statement had been replaced by one of 27 April 2015."

In fact, that statement had been replaced by Practice Statement: Delegation of Functions to Registrars, Tribunal Case Workers and Authorised Tribunal Staff on or after 8 July 2016 (7/7/16).

Judicial Summary

Reported as [2020] AACR 1B (this report was published on 2/11/21)

Mental Health Act 1983 – Withdrawal – Consent – Reinstatement – Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008

The patient was liable to be detained under the Mental Health Act 1983. On 30 May 2018, he applied to the First-tier Tribunal (F-tT) with a view to being discharged from that liability. The patient later applied to withdraw his application, which required the consent of the tribunal. The tribunal gave its consent on 20 August 2018. On 12 September 2018, the patient applied for his application to be reinstated. The F-tT said allowing the reinstatement would have the result of allowing the applicant to have two tribunal hearings within one period of eligibility, which is not the purpose of the reinstatement provision and refused permission to appeal to the Upper Tribunal (UT). The patient appealed the decision to the UT. The issue for the UT was the factors to be taken into account when an application has been made to reinstate a case that was withdrawn with the consent of the F-tT.

Held, dismissing the appeal, that:

  1. it is not correct to equate an application and a reinstatement. The patient has a statutory right to apply to the tribunal, but the situation changes once the case has been withdrawn with the tribunal’s consent after consideration. The issue then becomes whether the tribunal’s decision should be reversed (paragraph 14);
  2. the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (e) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole. (paragraph 17).

External links

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Powers🔍
  • Upper Tribunal decisions🔍

Date: 30/5/19🔍

Court: Upper Tribunal (Administrative Appeals Chamber)🔍

Cited by:

Judge(s):

Parties:

  • JS🔍
  • South London and Maudsley NHS Foundation Trust🔍
  • Secretary of State for Justice🔍

Citation number(s):

What links here:

Published: 17/7/19 10:54

Cached: 2024-04-26 18:16:42

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