Statutory Referrals
Many people continue to be confused about the timing of statutory referrals. The following is our attempt to provide a simple explanation for what can often be a very complicated picture.
Section 3
If a patient does not make an application within the first six months there must be a statutory referral to the tribunal when the section is renewed for a second six months. Note that the hearing can take place within the second six months as long as the application was lodged in the first six months. Note also that an application that is withdrawn so that there is never a hearing does not count as an application.
Where a patient has not had a hearing in the previous three years then there must be a statutory referral. It does not matter what triggered the hearing. Simply check back to the date of the last hearing and, if three years have gone by, a statutory referral is necessary.
So far so good but complications arise where there has been a CTO.
The six months and three year statutory referral periods continue to run whether or not the patient has been discharged on a CTO. Therefore, a patient who has not had a hearing as a result of an application made within the first six months of a Section 3 will be entitled to a
statutory referral. The time is calculated 6 months after the start of the Section 3 even if they are by then on a CTO. Similarly, if three years have gone by since the last tribunal hearing there must be a statutory referral even if the client is on a CTO. It is the date of the previous hearing, no matter what causes that hearing, from which you calculate the three year period.
CTO Recalls
This is where things get complicated. A patient whose CTO is revoked back onto the Section 3 (or Section 37) must have a statutory referral. The hearing must go ahead even if a patient is discharged again on CTO.
When a patient is discharged on a CTO they are often no longer interested in the tribunal so may well not attend the hearing nor instruct their solicitors to attend. The hearing will proceed because a patient cannot withdraw a statutory reference. The tribunal office are currently consulting on whether, with the patient’s informed consent, the tribunal might be able to deal with the matter without a formal hearing but, at the moment, the hearing will go ahead with or without the patient.
Each successive revocation requires a statutory referral and each hearing will break the three year period.
The law and procedure in this info sheet is at 19th September 2011 and subject to change following the current consultation exercise. If still confused, contact us.
Authorised and regulated by the Solicitors Regulation Authority No: 74299