The patient was initially detained under s2 but, between her application to the MHRT and the hearing date, she was made subject to s3. The Tribunal president decided that the case should not be heard because of the change of status.
The Claimant argued that the hearing should go ahead, with the s3 discharge criteria being considered; otherwise, she would lose her right to make an application under s2 and would be precluded from making any other application under s3 during the first six months.
The Code of Practice supported the Claimant's position: "Where a patient is detained under section 2 and assessment points to a need for treatment under the Act for a period beyond the 28 day detention under section 2. In such circumstances an application for detention under section 3 should be made at the earliest opportunity and should not be delayed until the end of section 2 detention. Changing a patient's detention status from section 2 to section 3 will not deprive him of a Mental Health Review Tribunal hearing if the change takes place after a valid application has been made to the Tribunal but before it has been heard. The patient's right to apply for a Tribunal under section 66(1)(b) in the first period of detention after his change of status are unaffected."
Collins J held that this was a correct statement of the law.
The Defendant rested their argument on the use of the present tense - contending that right to a hearing only continued so long as it can be said that patient is admitted under s2.
Collins J held that what founds the right of appeal "is the admission not the detention" and that "admission is something which occurs at a moment in time; it is not a continuing state of affairs." Therefore the right of appeal is not lost by the change in status.
It was common ground that s72 (consideration of the discharge criteria) applied to the state of affairs at the time of the hearing. Therefore the 's3' discharge criteria would apply.
MR JUSTICE COLLINS
JENNI RICHARDS (Instructed by Roger Nelson, Deal, Kent, CT14 9GB) appeared on behalf of the Applicant.
NATHALIE LIEVEN (Instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London, SW1H 9JS) appeared on behalf of the Respondent.
This case was considered in R (SR) v MHRT  EWHC 2923 (Admin).