Commentary on Sections Part 2 – Lack of Capacity: Protection from Liability, and Safeguards Chapter 7 – Rights of Review of Authorisation Section 48 – Duty of HSC trust to refer case to Tribunal
This section imposes a duty on a HSC trust to refer P’s case to the Tribunal as soon as practicable if on any date, the period of authorisation under Schedule 1 is extended under section 38 or Schedule 3; the authorisation has been in force throughout the relevant period and the Tribunal has not considered the person’s case at any time in that period. The relevant period is defined as one year ending with the extension date, if the person to whom the authorisation relates is under 18, or two years otherwise, ending with the date when the period of authorisation is extended. The section also provides that for the purposes of providing information for the reference, any medical practitioner who has been authorised by or on behalf of P can visit and examine P and require production of, examine and take copies of health or other records relating to his or her detention, care or treatment.
This section makes provision for identifying the HSC trust which will have this duty imposed upon it. Where the extension is wholly or partly for the purposes of continuing a person’s detention, this duty will be imposed upon the HSC trust in whose area the place of detention is situated. Where the extension is wholly or partly for the purposes of continuing a person’s treatment, or requiring him or her to attend for treatment and P is not detained, the duty will be imposed upon the HSC trust in whose area the treatment is provided. Where the extension is for the purposes of continuing a community residence requirement, and is not for the purposes of continuing treatment, attendance for treatment or detention, the HSC trust in whose area the person is required to live will have the duty imposed upon it.