In JS V SOUTH LONDON AND MAUDSLEY NHS FOUNDATION TRUST AND THE SECRETARY OF STATE FOR JUSTICE [2019] UKUT 172 (AAC) Upper Tribunal Judge Jacobs has given guidance on the application of a little-known but important aspect of the Tribunal Procedure Rules 2008 (TPRs) about the right of a patient to reinstate an application after he or she has been allowed to withdraw it.

Background

As many readers will know, sections 66 and 77 Mental Health Act 1983 (“MHA”)  set out the circumstances when an application to the Tribunal can be made.  A patient can make one application in each “period of eligibility”.    Once an application has been made, rule 17 TPR allows the patient can apply to withdraw the application.  Guidance has been given by Charles J in AMA v Greater Manchester West Mental Health NHS Foundation Trust as to how a Tribunal should approach an application to withdraw.  The Senior President’s Practice Statement of 27 April 2015 permits decisions on applications to be withdrawn under rule 17 TPR to be made by authorised Tribunal staff, in certain circumstances:

“….subject to the notice of withdrawal being received by the tribunal 48 hours or more before the scheduled start time of the hearing of the application to the tribunal; and subject to the case not being part-heard, there being in existence no concurrent application or reference, and no other reason for tribunal staff to believe that consent to the withdrawal should be refused, such as it appearing that the withdrawal is merely tactical;”

If the withdrawal is accepted the patient has the right to make a fresh application within the same period of eligibility- section 77 (2).

Furthermore Rule 17(4) permits a patient, whose application to withdraw has been accepted, to apply to reinstate it within 28 days after the Tribunal received the notice of withdrawal or after the hearing when the withdrawal was agreed.

Therefore, a patient who has withdrawn his or her application has two routes to a hearing before the Tribunal:

(i)He or she can make a new application under section 77(2) but only during the same period of eligibility as the original application;

(ii)He or she can apply to reinstate the original application within 28 days of the withdrawal.JS was detained under the MHA and applied to the Tribunal on 30 May 2018.   

There appears to have been some delay in his hearing taking place but on 18 August 2018 he applied through his solicitors to withdraw the application for the following reasons:

“3. We were informed by [the patient] that after he evaluated his pathway he does not wish to proceed with his application. He explained that based on the clinical evidence he would like to work with the team to secure his discharge. 

4. In the light of the circumstances described above, our client has instructed that his application be withdrawn with immediate effect in accordance with his legal rights. 

5. [He] has been fully advised on legal implications of withdrawing and understands that he has the option to reapply in this period of eligibility. 

6. Additionally, we have advised [him] on rule 17(4) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 in regards to having his case reinstated within 28 days of the withdrawal date.”

 On 20 August 2018 the Tribunal consented to the withdrawal.  On 22 August 2018 the period of eligibility expired.  This meant that JS could no longer make a new application under section 77(2).  He could have made a completely fresh application within the new period of eligibility, but only once during that period, and thus he would have “used up” his right to a Tribunal at a very early stage in the period of eligibility.

Instead JS applied to reinstate the application under rule 17(4) on 12 September 2018, which was within the 28 days of the withdrawal.The basis of the application to reinstate was:

“At the material time, our client was of the opinion that he wished to make further progress with his clinical team. However, since this withdrawal application was accepted our client has reviewed his position and wishes to challenge his detention. Our client has considered all of the legal advice provided and believes that he is making effective progress and considers that this is the appropriate time to seek discharge from his section.”

This was refused by a Tribunal Judge on the following basis:

“The patient is now in a new period of eligibility and has the right to make a fresh application to the tribunal. I note that the current period of eligibility began on 22 August 2018, two days after the previous application was withdrawn. The patient should have been given legal advice about his eligibility at the time he decided to withdraw. Allowing the reinstatement would have the result of allowing the applicant to have two tribunal hearings within one period of eligibility, which is not the purpose of the reinstatement provision. …….I accept of course that, had the application not been withdrawn, he might have had two hearings within the one entitlement period. But I cannot agree that that fact entitles the patient to reinstatement of a withdrawn application.”

JS appealed to the Upper Tribunal and after some initial difficulties Upper Tribunal Judge Jacobs gave permission on the following grounds: 

(a) there is no authority on the tribunal’s power to reinstate an application in a mental health case; and 

(b) given the importance of a patient’s liberty enshrined in the Convention right under Article 5(4), it was an issue that merited full consideration on an appeal. 

The appeal.

JS argued that the FTT had no power to do anything other than reinstate a withdrawn application because anything else would violate the patient’s rights under Article 5(4).  Just as the patient need not show any reason for making an application in the first place, so the right to reinstatement should  be unconditional.This argument was rejected.  The judge noted that rule 17 applied to all the jurisdictions covered by the TPRs, not all of which engaged Article 5. Moreover, the judge distinguished between the right to make an application in the first place and the right to apply for reinstatement.  An application to reinstate involves the reversal of a judicial decision, which should not be governed by a rigid rule.

The judge held that an application to reinstate involved the exercise of discretion and set out the approach he considered a Tribunal should take:

“16. As there is no right to reinstatement, the tribunal has a discretion whether or not to reinstate the party’s ‘case’. It must, like all discretions, be exercised judicially and that involves complying with the overriding objective of the tribunal’s rules of procedure, which is ‘to enable the Tribunal to deal with cases fairly and justly’ (rule 2(1)). Mr Lewis argued that the patient had a legitimate expectation that his detention would be considered by a tribunal and that the default position should be to allow reinstatement ‘unless there are strong reasons not to do so.’ I do not accept that. What the patient is entitled to is to have an application for reinstatement considered properly in accordance with the overriding objective. I have already explained why it is not proper to disregard the fact that a tribunal has agreed to the patient withdrawing an application. 

17. Considered methodically, the factors that the tribunal should take into account neatly divide into three. First, the tribunal should consider whether there is anything to undermine either the patient’s application to withdraw or the tribunal’s consent. Just to give some examples, the application may have been based on a misunderstanding of the facts or the law. Or there may be an issue whether the patient had capacity or gave informed consent. Or the tribunal’s reasons for consenting may have been defective. Second, there may have been a change of circumstances that makes it appropriate to agree to reinstatement. Third, the tribunal will have to consider any other factors that may be relevant under the overriding objective. These will include: (a) the reasons given in support of the application, whatever they may be; (b) any prejudice to the patient in refusing consent; (c) any detriment to the other parties if consent is given; (d) any prejudice to other patients if consent is given; and (d) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole.”

Applying this to the present case, the judge held that the refusal to reinstate was lawful.  There was nothing which might undermine his application to withdraw.  The only reason given for the application to reinstate was that the patient had changed his mind.  The Tribunal Judge was incorrect in objecting to the patient having more than one hearing within a period of eligibility: however this did not vitiate his or her overall decision because there was no basis on which the judge could properly have granted the application to reinstate.  

Comment

Although the appeal was unsuccessful this case is important in highlighting the relevant factors to be addressed when seeking to re-instate an application that has been withdrawn.  As the judge observed this is only likely to be an issue when an application is withdrawn close to the end of a period of eligibility, when the patient would have very little time in which to decide to make a new application relying on s77 MHA.    When advising a client about withdrawal of an application close to the end of a period eligibility, it is therefore important to ensure that the client appreciates that they will need to show reasons to apply to reinstate within the 28 day period, and that the Tribunal’s agreement to reinstatement cannot be taken as read.

The judge made two further important observations.  The first concerned the vexed question of “tactical” withdrawals.   The judge said:“10. The caselaw on withdrawal and Senior President’s Practice Statement show a concern that it should not be used for tactical purposes. The classic example would be of patient who applied to withdraw just before the close of a hearing, having seen that the evidence and submissions were against discharge. Whatever the scope of a tactical withdrawal, there was nothing tactical about the circumstances in this case. I have not had to consider the proper approach in such cases.”It should be noted that in the Practice Note cited above, the wording used is “merely tactical.” It is submitted that giving advice about the prospects of success of an application, and about the timing of an application, is an essential part of the duties of a competent representative.  It is submitted that no objection should be taken to an application to withdraw an application if, after consideration of the statutory reports, and advice about the prospects of success, a patient decides that he or she does not wish to use up an application at this stage.  It is submitted that this is consistent with the guidance in AMA at paragraphs 36-36, namely that consent to withdrawal “should not be given unless the FTT is itself satisfied that a review of a detention by an independent tribunal is not then necessary”.   

Secondly the judge noted that the Trust had suggested that it had been incorrectly identified as a party to the appeal.  The judge made it clear that this was a misunderstanding.  The Trust was a party to the application to the FTT by virtue of rule 1(3) TPRs.  The operation of rule 1(3) Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698) provides that all parties to the FTT application will automatically be parties to the appeal.  Therefore, the remainder of the Upper Tribunal rules which apply to respondents will all affect all those who were parties to the application at the FTT: these include the requirement to help the Upper Tribunal further the over-riding objective and co-operate generally.  The Upper Tribunal can also make case management decisions (rule 5) which include requiring a party or another person to provide  “documents, information, evidence or submissions to the Upper Tribunal or a party”.