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Tribunal Policy: Withdrawals (23 Feb 2015) [2015] MHLO 19

(1) Late withdrawals (where the request is received less than 48 hours, not counting non-working days, before the hearing) and "merely tactical" withdrawals ("such as where the case is part-heard, or if there are two cases that ought to be heard together and an attempt is made to withdraw one of them, or if an application for a postponement or adjournment has been made and refused and the withdrawal appears to be an attempt to get round the refusal") will be referred either to a registrar, salaried judge, or panel. (2) For late withdrawals: (a) the tribunal must be provided with full reasons why the patient wants to withdraw the application (and thus agrees to the continuation of detention or MHA order); (b) the tribunal will bear in mind that the need for, and right to, a periodic review of a patient's detention is an important safeguard which is necessary for Article 5 ECHR purposes, and which should not be abandoned lightly, especially if the hearing may achieve some good, and if in doubt the tribunal should refuse to consent. (3) Requests received after 4.30pm on the working day before the hearing will be considered by the panel.

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Dear Richard,

You will be aware of the Upper Tribunal decision (Charles J) in AMA v Greater Manchester West MH NHSFT [2015] UKUT 36 (AAC), [2015] MHLO 17.

You will also be familiar, now, with the new 2015 Code of Practice.

Both have an effect on the way that the tribunal will deal with requests to withdraw an application made by or on behalf of a patient.

The Code of Practice provides that:

12.24 A request to withdraw an application may be made by the applicant in accordance with the Tribunal rules. The Tribunal is not bound to agree, especially if the withdrawal is merely tactical or is sought within 48 hours of the hearing. The applicant may not withdraw a (mandatory) reference made by a hospital manager or the Secretary of State.

However (as Charles J stressed) the tribunal's discretion to refuse to give consent to the withdrawal of an application not only provides a safeguard from unnecessarily late withdrawals and merely tactical devices, it also provides a safeguard for the patient. Charles J is of the view that consent to withdrawal should therefore not be given unless the tribunal is satisfied that a review of the patient's detention in hospital by an independent tribunal, on the information and evidence known, is unnecessary.

I remain keen to use the delegated powers that the Senior President has given to certain staff members to consent to timely withdrawals. However, in the light of the Code and AMA I have decided that a withdrawal should not be agreed by staff with delegated powers if the withdrawal request was received less than 48 hours (not counting weekends etc) before the tribunal hearing, or if the withdrawal appears to be merely tactical - such as where the case is part-heard, or if there are two cases that ought to be heard together and an attempt is made to withdraw one of them, or if an application for a postponement or adjournment has been made and refused and the withdrawal appears to be an attempt to get round the refusal. Such withdrawals will be referred either to a Registrar, Salaried Judge, or Panel - who will apply the principles set out in AMA.

It follows, that for requests received less than 48 hours before the scheduled start of the hearing (not counting non-working days):

1) the tribunal should always be provided with full reasons why the patient wants to withdraw the application (and thus agrees to the continuation of detention or a MHA order); and
2) the tribunal must always make its own mind up on whether it should agree or, instead, proceed;
3) the tribunal will bear in mind that the need for, and right to, aperiodic review of a patient's detention is an important safeguard and is necessary for Article 5 ECHR purposes. It should not be abandoned lightly, especially if the hearing may achieve some good; and
4) if in doubt, the tribunal should (as Charles J suggests) refuse consent and, as a consequence, carry on with the hearing.

If the request is received after 4.30pm on the working day before the hearing, it will not be considered in advance, the panel will convene, and the decision whether or not to consent will be made by the panel, again applying the AMA principles.

I very much hope that this will encourage all legal representatives to take instructions as soon as possible and, if an application is to be withdrawn, that all efforts are made to ensure that the tribunal receives the request with more than 48 hours to go. This will help administrative staff to consent, rather than the request having to go to a Registrar, Judge or full panel for a judicial decision to be made - which involves the giving of full reasons for a withdrawal, and judges applying the above principles.

I appreciate that late reports affects the ability of a representative to take timely instructions and, as you know, as a separate piece of work, the tribunal is doing all it can to tackle this problem.

Best wishes,

Mark

JUDGE MARK HINCHLIFFE

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