Requests to withdraw Tribunal applications are governed by Tribunal rule 17. The withdrawal request can be made ‘at any time before a hearing to consider the disposal of the proceedings’ (a letter or email would suffice) or ‘orally at the hearing’.
The rules about the Tribunal’s consent vary:
- A patient’s application cannot be withdrawn without the Tribunal’s consent. If the request is made in writing before the hearing date it is almost invariably agreed.
- A discretionary reference by the SoS for Health (under s67) or the SoS for Justice (under 71(1)) can be withdrawn by the SoS without the Tribunal’s consent.
- A mandatory reference cannot be withdrawn. These are references by hospital mangers (under s68), by the SoS for Justice 3 years since the previous hearing (under s71(2)) or by SSJ after recall (under s75(1)).
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  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  UKUT 36 (a case concerning the withdrawal of an application), the tribunal published Tribunal Policy: Withdrawals (23 Feb 2015)  MHLO 19, a summary of which follows:
- 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.
- For late withdrawals:
- 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);
- 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.
- 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  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).