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Automatic referrals and CTO patients – the law
The Secretary of State may refer a case to the
tribunal at any time. The hospital managers must refer to the
tribunal the case of any CTO patient:
- who has not made any application to the
Tribunal in the six months following their initial
detention.
- if a period of more than three years (or, if
the patient has not attained the age of 18 years, one year) has
elapsed since his / her case was last considered by a
tribunal.
- where the CTO is revoked, the hospital
managers must also refer the patient’s case to the tribunal as soon
as possible after the order is revoked. The tribunal has no
choice but to consider the referral- even if the patient is then
discharged back onto a new CTO before the referral is heard.
However, a change to the tribunal rules now
permits a ‘paper only’ consideration by the tribunal (rather than a
full hearing) if the community patient is 18 or over
and makes a capacitous decision that they do not
wish to attend a hearing nor wish their legal representative to
attend a hearing on their behalf.
As the Deputy Chamber President has said: “the
intention is to save everyone (including the RC) from having to
personally attend stressful and unnecessary hearings, where the
case can be justly and fairly decided by the tribunal on the
papers.”
A statement of capacity by the RC is now required
by the tribunal in such circumstances
The new Practice Direction requires the RC to
include in their report an assessment of the patient’s capacity to
decide whether or not to attend, or be represented at, a hearing of
the reference. The RC’s view will be an important consideration
although the tribunal will consider all the available evidence,
including the patient’s general ability to make capacitous
decisions in the community, and the final judgement on capacity
will rest with the tribunal. As in all other aspects of the
tribunal’s work, however, the RC is obliged to provide an expert
opinion, which will always be carefully considered.
Whether or not a hearing takes place the RC
and others must provide the usual tribunal reports, in accordance
with the Practice Direction.
What do you need to do?
It is essential that you check that the
patient has all the relevant information they need in order to make
this important decision about whether or not to attend a hearing or
to have legal representation.
The tribunal will always send a
short factsheet to the patient that explains the decisions that
can be made (see below), and their consequences. The patient must
confirm their decision not to attend or be represented in
writing.
The options the patient must consider are:
- To attend the hearing with or without a legal
representative
- Not to attend but to ask their legal representatives to attend
(in this case the patient would need to be seen by the Tribunal
doctor).
- To neither attend the hearing nor ask their legal
representative to attend. In this case the tribunal can decide the
case by reading all the reports without having a hearing.
It would also be good practice to assess the
patient’s understanding of the CTO and the powers it confers on the
Responsible Clinician most particularly the power of recall and in
what circumstances treatment can be given in the absence of
consent. (This would have been done, in any event, when the patient
was first considered for a CTO.)
A patient must also have sufficient
information about the powers of a tribunal to discharge the CTO,
and what the implications of staying on the CTO (and of discharge)
might be.
Evidence to date would suggest the chances of
discharge are less if there is a “paper only” review, so if a
patient seeks discharge we would expect a capacitous patient to opt
for a hearing.
The patient should also be informed of their
right to seek legal advice, and reminded that they may also benefit
from the input of an Independent Mental Health Advocate to assist
them in considering their options.
Although there is no formal guidance from the
tribunal, it would be good practice to describe capacity in
relation to the test of capacity in s2 and 3 Mental Capacity Act
2005.
Dr Joan Rutherford (Chief Medical Member, First Tier Tribunal –
Mental Health) and Dr Julie Chalmers, Specialist Advisor in
Mental Health Law, Royal College of Psychiatrists.
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