R (O) v MHRT  EWHC 2659 (Admin)
Patient can withdraw application between unfulfilled s72(3) recommendation and reconvened hearing. [Caution.]
This case was decided under Rule 19 of the 1983 rules, which allowed a withdrawal "at any time". Under the 2008 rules, Tribunal rule 17 allows withdrawal "at any time before a hearing to consider the disposal of the proceedings" and in that context Tribunal rule 42 states "a decision with recommendations ... or a deferred direction for conditional discharge ... is a decision which disposes of the proceedings".
Between an Tribunal recommendation under s72(3), which was not complied with, that the patient be transferred under s17, and the reconvened hearing, the patient applied to withdraw his application. A Tribunal clerk accepted a withdrawal request; however, subsequently, the Regional Chairman refused to accept it on the basis that the Tribunal was seised of the case, and once the Tribunal had determined the application at the original hearing there was no longer any "application" to be withdrawn. The Tribunal panel agreed with this and drew a distinction between the word "case" in s72(3) as opposed to "application" (see r19).
The claimant argued that the proper construction of the section meant that the application was still being considered, and that there was a legitimate expectation arising from the clerk's original letter.
The court held that the application had not run its course; the Tribunal have the same powers on reconsidering the case as at the original hearing: R (Hempstock) v MHRT  EWHC Admin 664. The legitimate expectation argument was therefore unnecessary but would in any event have failed: the Protocol under which the clerk accepted the withdrawal request was unlawful and, in any event, the mistake was corrected in a reasonable time.
Decision not to accept withdrawal quashed.
N.B. The Protocol was unlawful because the decision is a judicial not an administrative one: see the new Protocol in the Regional Chairmen's Manual (June 2006).