Mental Health Tribunal, 'Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case' (30/6/21)
Devon case tribunal guidance If tribunal proceedings began in relation to an unlawful section (based on a remote assessment) but the patient now is on a new section and wishes the hearing to go ahead, the tribunal is likely to strike out the initial application/reference but facilitate the patient in making a new application. The guidance focusses on the patient making an application, rather than seeking a reference to preserve the right to make a later application (see Mental Health Tribunal, 'SM v Livewell Southwest - new process for references' (30/6/21) for the ability to seek an urgent reference in another context), or the argument mentioned in this forum topic that the changed section could be treated in the same way as other changes of status.
The following information was circulated to Mental Health Lawyers Assocation members on 1/7/21, based on an email from Sarah Johnston (Deputy Chamber President) on 30/6/21:
Devon Partnership NHS Trust case and guidance on how to deal with issues arising from this case
While every case will be determined on its individual merits the Tribunal has indicated as a helpful guide the following process be followed for cases where a patient has been recently reassessed and placed on a valid new section because of Devon and wants the hearing to go ahead:
- If the application/reference pre-dates the new section, the case before the Tribunal is an application/reference on the basis of a section that is now invalid. The Tribunal do not have jurisdiction in respect of that application/reference. The application is likely to be struck out. If that patient is however detained on a new valid section and wishes to proceed with the hearing, this can be achieved if an application or reference is made against the new detention.
- Rule 32(1) requires that is made in writing and signed by the patient or authorised by them. If the representative has (or can now get) that signed application and show it to the Tribunal over the video hearing connection, or the patient writes it on a piece of paper and shows it to them, the Tribunal can be satisfied that a new valid application has been made. The parties’ views on whether they want the hearing to still go ahead will be taken. If the parties want to proceed, the Tribunal can shorten the notice periods/all the usual pre-hearing processes under Rule 5 and go ahead and hear the new application there and then.
- Judicial Office Holders have been asked to make the patient aware that this will be their one application allowed in this period of detention. The Tribunal understands that representatives would also do this when they are advising their clients.