Right to apply to Tribunal

There are some situations in which the nearest relative may apply to the Tribunal:

  • A consequence of a barring order – in s3 and CTO cases only – is the NR’s right to apply to the Tribunal for discharge (s66(1)(g) and (2)(d)) within 28 days of being informed of the barring certificate. The Tribunal must discharge if not satisfied of the dangerousness criterion (s72(1)(b)(iii)) even if satisfied of the normal criteria (see 4.3.6 below).
    • The fact that there is no right to apply to the Tribunal in s2 cases is a consideration in advising whether or not the nearest relative should wait until the patient is on s3.
    • The NR’s inability in s2 cases to apply to the tribunal was considered in [[MA v SSH [2012] UKUT 474 (AAC)M, [2012] MHLO 171]] and found to be lawful, although subsequently in MH v UK 11577/06 [2013] ECHR 1008, [2013] MHLO 94 a similar situation caused an Article 5 breach.
  • The NR can apply to the Tribunal periodically in unrestricted hospital order cases (within the same eligibility periods as for the patient).
  • The NR can apply to the Tribunal within the period of 12 months beginning with the date of a s37 guardianship order and in any subsequent period of 12 months (s69).
  • Additionally a person who is no longer NR (if he has been displaced in relation to objection, or exercise of the discharge power) can apply during each 12-month period after displacement.

Nearest relatives require High Court permission to apply to the Tribunal where the patient is a ward of court (s33(2)).


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