Automatic referrals and CTO patients
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.