Case HM/0339/2015  MHLO 57 (UT)
After the case had been adjourned part-heard, the patient's withdrawal was agreed by a tribunal clerk. The panel judge spoke with a salaried tribunal judge, who then set aside the decision to consent to withdrawal, and the tribunal reconvened without discharging the patient. The salaried tribunal judge's decision was unlawful and the tribunal therefore had no jurisdiction to continue with the hearing. (Under the subsequent Practice Statement: Delegation of Functions to Staff and to Registrars on or after 27 April 2015 (27/4/15) the original decision would not have been made by a clerk.)
Lack of parties' names
Email from Upper Tribunal registrar (28/8/15): "The UT Judge in this case appears to have decided that the decision is not of general importance i.e. he has not circulated this decision amongst other judges, or to put it on the website - therefore there is no case name or neutral citation number. If you wish to cite the case - at this stage - you will have to do so by the file number only."
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2016 are available here: MHLR 2016.
Whether a decision by Tribunal staff to allow a patient to withdraw his application was defective; whether a decision by a Tribunal judge to set aside the decision of the staff member was defective - Case No HM/0339/2015 –  MHLR 159
Points Arising: A withdrawal application may be accepted by a member of staff, acting pursuant to a practice statement issued under the Tribunal Procedure Rules 2008, if the member of staff has no reason not to consent: the focus is on what is known by the staff member. There is no requirement to consult the Judge presiding at the hearing.
If a Tribunal judge sets aside a decision under r45 TPR 2008, the procedural irregularity should be identified, then consideration given to whether the interests of justice require the decision to be set aside, and if so the decision re-made.
Facts and Outcome: The Upper Tribunal restored the decision of a member of Tribunal staff to allow a patient to withdraw his part-heard application to a Tribunal. A Tribunal judge had set this aside in light of the failure of the staff member to consult to judge presiding at the hearing, the fact that the hearing was part-heard and the case had already taken a disproportionate time, and there was no evidence that the patient would accept medication (which had been mentioned in the application to withdraw). This was set aside as non-compliant with r45 TPR 2008, and it was found that the original decision was proper in light of what was known to the staff member. The result was that the Tribunal had been without jurisdiction when it continued with the hearing.
No Bailii link (neutral citation is unknown or not applicable)
Transcript provided by David McLaughlin of Edwards Duthie Solicitors