JS v South London and Maudsley NHS Foundation Trust and the Secretary of State for Justice: [2019] UKUT 172 (AAC) ; [2020] AACR 1

Upper Tribunal Administrative Appeals Chamber decision of Judge Jacobs on 30 May 2019.

From:
HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
Published
11 July 2019
Last updated
2 November 2021 — See all updates
Categories:
Tribunal procedure and practice
Sub-categories:
Tribunal procedure and practice - other
Judges:
Jacobs, E
Decision date:
30 May 2019

Read the full decision in HM/2550/2018. [2020] AACR 1ws

Judicial Summary

Reported as [2020] AACR 1

Mental Health Act 1983 – Withdrawal – Consent – Reinstatement – Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008

The patient was liable to be detained under the Mental Health Act 1983. On 30 May 2018, he applied to the First-tier Tribunal (F-tT) with a view to being discharged from that liability. The patient later applied to withdraw his application, which required the consent of the tribunal. The tribunal gave its consent on 20 August 2018. On 12 September 2018, the patient applied for his application to be reinstated. The F-tT said 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 and refused permission to appeal to the Upper Tribunal (UT). The patient appealed the decision to the UT. The issue for the UT was the factors to be taken into account when an application has been made to reinstate a case that was withdrawn with the consent of the F-tT.

Held, dismissing the appeal, that:

  1. it is not correct to equate an application and a reinstatement. The patient has a statutory right to apply to the tribunal, but the situation changes once the case has been withdrawn with the tribunal’s consent after consideration. The issue then becomes whether the tribunal’s decision should be reversed (paragraph 14);

  2. 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. 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 (e) any impact that reinstatement might have on the operation of the tribunal’s mental health jurisdiction system as a whole. (paragraph 17).

Published 11 July 2019
Last updated 2 November 2021 + show all updates

  1. Decision selected for reporting as [2020] AACR 1

  2. First published.