Mental Health Review Tribunal - Proceedings - Reconsideration after non-compliance with recommendation
[2006] All ER (D) 190 (Oct)
Summary: R (on the application of O) v Mental Health Review Tribunal
Queen’s Bench Division (Administrative Court)
Collins J
17 October 2006
Mental health – Mental health review tribunal – Proceedings – Reconsideration after non-compliance with recommendation – Whether applicant able to withdraw application to tribunal after recommendation made – Whether ‘application’ ceasing to exist after application made – Mental Health Act 1983, ss 65(1), 66, 72(3) – Mental Health Review Tribunal Rules 1983, SI 1983/942, rr 18, 19.
The application would be allowed.
On its true construction, the phrase ‘his case’ in s 72(3)(b) of the 1983 Act meant the patient’s ‘application’ to the mental health tribunal. Accordingly, that application, and the tribunal’s powers in respect of ‘applications’, remained extant after the tribunal had made a recommendation under that provision. Furthermore, as the tribunal had to agree to the withdrawal of an application as an exercise of its judicial function, it could refuse to accept a withdrawal if it was merely a tactical ploy and not in the best interests of the patient.
To hold otherwise would be to give rise to considerable anomalies and would not be consistent with the scheme of the Act and the obligations of the tribunal. First, there was nothing in the terms of the Act that would be before the tribunal if it had completed its function in considering an ‘application’ before any reconsideration had taken place under s 72(3)(b) of the Act. Moreover, r 18 of the Rules would not apply directly if only something other than an ‘application’ existed after a recommendation had been made, but a fresh application or reference by the Secretary of State had been made in the intervening period before any reconsideration had taken place. Secondly, the tribunal was required by s 72(1) of the Act to consider discharge in all cases. The concern that a patient might be able to withdraw an application and seek to persuade another tribunal that he ought to be discharged was unrealistic. Not only was it open to the tribunal to consider the whole case, but also it was open to the tribunal to refuse to agree to the withdrawal of an application in the exercise of its judicial function under r 19 of the Rules.
Mental Health Review Tribunal v Hempstock (1997) 39 BMLR 123 applied.
Comments: