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Withdrawal (MHT)

A party may give notice of the withdrawal of its case ‘by sending or delivering to the Tribunal a written notice of withdrawal’ or ‘or orally at a hearing’ (rule 17(1)).

Withdrawal only takes effect when the tribunal has consented – with the exception of discretionary references, in which case no consent is required (rule 17(2)(b)). The discretionary references are those made by the Secretary of State for Health under s67, or the Secretary of State for Justice under s71(1).

A party which started a mental health case by making a mandatory reference may not withdraw its case (rule 17(3)). The mandatory references are those made by the hospital managers under s68, and the Secretary of State for Justice under s71(2) (three years since previous hearing) or s75(1) (recall).

It appears that Salaried Tribunal Judges are now (mid-2021) allowing patients to withdraw references (see this forum post). If this is the correct approach then the patient could withdraw a mandatory reference with the tribunal’s consent, and a discretionary reference without needing the tribunal’s consent.

The decision whether to agree to the withdrawal request has been delegated to secretariat staff under Practice Statement: Delegation of Functions to Registrars, Tribunal Case Workers and Authorised Tribunal Staff on or after 8 July 2016 (7/7/16):

  • Certain clerks may consent “to a notice of withdrawal lodged by or on behalf of a patient by a representative under rule 17(1)(a)”.
  • Registrars can consent to withdrawal in any situation.

In a case just prior to the previous, April 2015 Practice Direction, a case had been adjourned part-heard and withdrawal agreed to by a tribunal clerk (Case HM/0339/2015 [2015] MHLO 57 (UT)). The panel judge then spoke with a salaried tribunal judge, who set aside the decision to consent to withdrawal, and the tribunal reconvened without discharging the patient. The patient appealed and the Upper Tribunal held that, on the facts, the salaried tribunal judge’s decision was unlawful and the tribunal therefore had no jurisdiction to continue with the hearing.

Following AMA v Greater Manchester West MH NHSFT [2015] UKUT 36 (a case concerning the withdrawal of an application), the tribunal published Tribunal Policy: Withdrawals (23 Feb 2015) [2015] MHLO 19, a summary of which follows:

  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:
    1. 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);
    2. 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.

Consent to withdrawal is a judicial act and is appealable. In MB v BEH MH NHS Trust [2011] UKUT 329 (AAC)Not on Bailii!, the patient withdrew after the Tribunal president (having only heard the RC’s evidence) told him he could not achieve his aim of a conditional discharge: the patient successfully appealed the decision to accept his withdrawal as there had been an error of law (i.e. the forming of a preconceived concluded opinion rather than a provisional view).

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