Angus Cameron v Secretary of State for Justice & Anor

The issue in this case is whether an application made under s.75(2) of the Mental Health Act 1983 (“MHA” or “the Act”) by a mental health patient to the First-tier Tribunal (“FTT”) while subject to a conditional discharge is extinguished by the recall to hospital of that patient by the Secretary of State for Justice (“SSJ”) under s.42(3) of the Act.

On 19 October 2016, in the Crown Court at Winchester, the Appellant pleaded guilty to attempted murder. The charge was brought after he had attempted to kill his neighbour. Mr Cameron, who had a diagnosis of paranoid schizophrenia, had not been taking his antipsychotic medication for some months and was seriously unwell at the time.

On 16 November 2016 the Appellant was made subject to a restricted hospital order under s.37 and s.41 of the MHA for the offence. He was treated in a medium secure hospital and responded well to the treatment. He was conditionally discharged in October 2021, under s.42(2) of the Act.

In October 2023 the Appellant applied to the FTT under s.75(2) seeking his absolute discharge.

In January 2024 the Appellant began to take exception to the behaviour of a resident in the care home to which he had been conditionally discharged. The Appellant made a plan to “do thirty things to annoy” this resident.

On 1 March 2024 officials acting on behalf of the SSJ made the decision to recall the Appellant to hospital under s.42(3) MHA. He was initially held in a psychiatric intensive care unit. His application for absolute discharge had not yet been heard when he was recalled to hospital.

Under s.75(1) MHA the SSJ is required to refer the case to the First-tier Tribunal within one month of any recall to hospital of a restricted patient who has been conditionally discharged. This reference was made. Initially, a direction was made to list this reference together with the Appellant’s outstanding application under s.75(2). On 10 April, however, FTT Judge Chamberlain struck out the application under s.75(2), on the basis that the FTT no longer had jurisdiction to consider it in the light of the Appellant’s recall to hospital. It is this decision, later affirmed by the Upper Tribunal (“UT”), which is the subject of the appeal to this court.

On 25 July 2024, a remote video hearing took place of the SSJ’s referral under s.75(1) MHA before FTT Judge Keates, Medical Member Dr Basu, and Specialist Member Mr Frampton. In addition to the written evidence, oral evidence was heard from the Appellant, his Responsible Clinician, Named Nurse, Care Coordinator, prospective Social Supervisor and the manager of the care home in which the Appellant had resided prior to recall. The Appellant submitted that he could be discharged.

On 26 July 2024 the FTT handed down its decision, rejecting the Appellant’s submission that he could be discharged. The FTT did not consider what the position would have been under s.75(2) as that application had been struck out.

The Appellant previously applied for an anonymity order on the basis that the exceptional circumstances justify an interference with the open justice principle; and in the FTT and UT he was referred to as AC. When permission to appeal to this court was granted by Dingemans LJ he refused anonymity. On 16 October 2025 Andrews LJ concluded that the reasons given by Dingemans LJ for refusing anonymity remained valid. She directed, however, that any information about the detail of the Appellant’s medical history, other than his primary diagnosis of paranoid schizophrenia, should not be referred to in open court without the prior permission of the full court at the hearing. Neither party applied for such permission. The details of the Appellant’s illness are not relevant to the jurisdiction point which is before us.

Under s.37 a judge of the Crown Court passing a sentence on an offender has the power to impose a Hospital Order for almost any imprisonable offence. There are also powers to impose hospital orders in respect of those that have not been convicted. That is not in issue on the facts of this case.

The Crown Court has power under s.41 to make a restriction order at the same time as imposing a Hospital Order. The condition for making a restriction order is that it appears to the Court that it is necessary for the protection of the public from serious harm to make such an order. The order is not punitive in nature. The effect of the order is that the offender becomes subject to the special restrictions including at s.41(3) of the Act: in particular, the patient will remain liable to be detained or recalled until absolutely discharged,

A person sentenced to a hospital order under s.37 of the MHA and a restriction order under s.41 can be discharged under s 42. That section provides, so far as relevant:

“Powers of Secretary of State in respect of patients subject to restriction orders.

1)

If the Secretary of State is satisfied that in the case of any patient a restriction order is no longer required for the protection of the public from serious harm, he may direct that the patient shall cease to be subject to the special restrictions set out in section 41(3) above; and where the Secretary of State so directs, the restriction order shall cease to have effect, and section 41(5) above shall apply accordingly.

2)

At any time while a restriction order is in force in respect of a patient, the Secretary of State may, if he thinks fit, by warrant discharge the patient from hospital, either absolutely or subject to conditions; and where a person is absolutely discharged under this subsection, he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.

3)

The Secretary of State may at any time during the continuance in force of a restriction order in respect of a patient who has been conditionally discharged under subsection (2) above by warrant recall the patient to such hospital as may be specified in the warrant.”

The other relevant provisions of the 1983 Act are ss 70-71, 73, and 75, which provide:

“70 Applications to tribunals concerning restricted patients.

A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to the appropriate tribunal— ”

(a)

in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order, hospital direction or transfer direction; and

(b)

in any subsequent period of 12 months.

71 References by Secretary of State concerning restricted patients.

(1)

The Secretary of State may at any time refer the case of a restricted patient to the appropriate tribunal.

(2)

The Secretary of State shall refer to the appropriate tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.

(3)

The Secretary of State may by order vary the length of the period mentioned in subsection (2) above. (3A) An order under subsection (3) above may include such transitional, consequential, incidental or supplemental provision as the Secretary of State thinks fit.

(4)

Any reference under subsection (1) above in respect of a patient who has been conditionally discharged and not recalled to hospital shall be made to the tribunal for the area in which the patient resides.

73 Power to discharge restricted patients

(1)

Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if—

(a)

the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1) above; and

(b)

the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.

(2)

Where in the case of any such patient as is mentioned in subsection (1) above— (a) paragraph

(a)

of that subsection applies; but

(b)

paragraph (b) of that subsection does not apply, the tribunal shall direct the conditional discharge of the patient.

…

75 Applications and references concerning conditionally discharged restricted patients.

(1)

Where a restricted patient has been conditionally discharged under section 42(2), 73 or 74 above and is subsequently recalled to hospital—

(a)

the Secretary of State shall, within one month of the day on which the patient returns or is returned to hospital, refer his case to the appropriate tribunal; and

(b)

section 70 above shall apply to the patient as if the relevant hospital order, hospital direction or transfer direction had been made on that day.

(2)

Where a restricted patient has been conditionally discharged as aforesaid but has not been recalled to hospital he may apply to the appropriate tribunal—

(a)

in the period between the expiration of 12 months and the expiration of two years beginning with the date on which he was conditionally discharged; and

(b)

in any subsequent period of two years.

(3)

Sections 73 and 74 above shall not apply to an application under subsection (2) above but on any such application the tribunal may—

(a)

vary any condition to which the patient is subject in connection with his discharge or impose any condition which might have been imposed in connection therewith; or

(b)

direct that the restriction order, limitation direction or restriction direction to which he is subject shall cease to have effect;

and if the tribunal gives a direction under paragraph (b) above the patient shall cease to be liable to be detained by virtue of the relevant hospital order, hospital direction or transfer direction.”

In R (Rayner) v Secretary of State of Justice [2008] EWCA Civ 176; [2009] 1 WLR 310, the claimant challenged the scheme established by sections 70 and 75 of the 1983 Act as being incompatible with Article 5(4) of the ECHR. Particular criticism was made of the provision in Section 70 that a recalled patient cannot himself apply to the Tribunal until six months after his return to hospital; and that the Secretary of State has up to one month in which to refer the case to the Tribunal under Section 75(1). As to the second point, this court, following earlier Strasbourg jurisprudence, held that (per Keene LJ at paragraph 24) a reference to the Tribunal should be made “within days, not weeks of the return of the patient to hospital and normally within a few days”. As to the scheme as a whole, Keene LJ said at paragraph 46:

“I conclude that, while section 75 of the 1983 Act, if it stood alone, might now not be regarded as sufficient to achieve the protection of article 5(4) rights required by the Convention and the Strasbourg jurisprudence, the combination of that statutory mechanism, the right of the patient to enforce the Secretary of State’s statutory duty (as interpreted in the light of the Convention) by way of judicial review, and the right of the patient to challenge the lawfulness of his detention directly in the courts on its substantive merits by judicial review and/or habeas corpus does suffice to comply with article 5(4). The patient has direct access as of right to the courts and can obtain swift redress if he is being unlawfully detained. I would only add that, as a matter of procedure, if judicial review has to be resorted to by a patient, he or she would normally find it quicker and more effective to apply for an order enforcing the Secretary of State’s statutory duty rather than embark on a direct challenge in the courts to the lawfulness of the detention.”

As I have already noted, Judge Chamberlain in the FTT held that the tribunal did not have jurisdiction to hear the Appellant’s application to be absolutely discharged which had been listed to be heard together with the referral on 18 April 2024. The strike-out decision emphasised, however, that the referral was to remain listed. The core of Judge Chamberlain’s decision was that, since the recall automatically generated the referral to the FTT, that gave the judicial oversight over the Appellant’s detention which the law required. The judge held that the application did not survive Mr Cameron’s change of status following his recall. Since, however, there was no direct authority on the issues raised in the case, FTT Judge Downs subsequently granted permission to appeal to the Upper Tribunal.

The appeal came before UTJ Jacobs at an oral hearing on 3 September 2024. The judge had before him written submissions from Mr Pezzani and oral submissions from Mr Persey. The Respondents (both the SSJ and Southern Health NHS Foundation Trust) took no part in the appeal. Judge Jacobs held as follows:-

“The effect of AC’s change of status

19.

A patient’s status may change under the Act. The Courts and the Upper Tribunal have had to analyse whether the change of status deprives the tribunal of the jurisdiction it has on proceedings that have already been initiated in the First-tier Tribunal. In some circumstances, the tribunal retains jurisdiction; is other circumstances, it does not. Some principles have emerged from the cases.

20.

First, the provisions of the Act are primary.

21.

Second, the precise analysis depends on the provisions involved…………

22.

Third, the change of status does not necessarily deprive the tribunal of jurisdiction…….

23.

Fourth, a patient is protected by the exercise of judicial oversight. ……..”

Judge Jacobs’ conclusion was that, taking account of the patient’s Article 5(4) protection and judicial review, the legislative provisions governing the recall of a conditionally discharged patient provided effective judicial oversight; and that the FTT had been right to decide that it had no further jurisdiction on the patient’s application and to strike it out.

An application was made to Judge Jacobs for permission to appeal to this court. He said at paragraph 7:-

“7.

I understand the point made by counsel for AC in relation to the Rayner case. If I had had to consider the position without the benefit of that case, I would have hesitated (to say the least) before accepting that judicial review provided effective protection for someone in AC’s position. However, I did have that case and I was bound to follow it as a decision of the Court of Appeal.

8.

As the Court of Appeal is also bound by Rayner unless it falls within the limited exceptions, I consider it preferable for the Court to decide whether to take on his case.”

Mr Cameron renewed his application for permission to appeal to this court. It was granted on 7 May 2025 by Dingemans LJ, as he then was, who wrote:-

“There is a compelling reason for the Court of Appeal to hear the appeal, because the appeal raises issues about: the jurisdiction of the First-tier Tribunal (FTT) to determine a mental health patient’s application under section 75 of the Mental Health Act 1983 (MHA) after that patient is subsequently recalled; what is contended to be a lacuna in the FTT’s oversight; and the relevance of the decision in R(Rayner) v Secretary of State for Justice [2009] 1 WLR 310.”

He therefore granted permission to appeal on the sole ground put forward, namely that “the judge erred in finding that effective judicial oversight as required by Article 5 ECHR could be achieved without recourse to the FTT in the circumstances of the Appellant’s case”.

The Appellant’s primary submission is that given the statutory role/duty of the FTT to provide judicial supervision over patients subject to the MHA, which was intended by Parliament to ensure the Act’s compliance with Article 5 of the ECHR, it cannot have been Parliament’s legislative intention to create a lacuna in that role which would be mitigated by an application for habeas corpus or judicial review (unless that is the unavoidable construction of the statutory scheme, which is not the case).

The Appellant’s written submissions in this appeal highlighted the following hypothetical scenario:

“(i)

A conditionally discharged patient applies to the Tribunal; (ii) he is recalled before the determination of that application, with the result that the application is struck out; (iii) he is conditionally discharged by the Secretary of State before the s.75(1)(a) reference is made (i.e. in the first month of recall); (iv) the patient is then unable to apply to the Tribunal for 12 months; (v) repeat.”

As such, it was submitted, there is a lacuna in the FTT’s oversight.

Mr Pezzani and Mr Persey submitted that:

“47.

In passing the MHA, Parliament intended for the FTT to be the primary judicial safeguard for a detained mental health patient’s liberty under Article 5 ECHR. For the reasons set out above, the FTT is a more effective remedy and judicial safeguard than judicial review and habeas corpus. Indeed, that was accepted by the Judge who noted that but for Rayner he “would have hesitated (to say the least) before accepting that judicial review provided effective protection for someone in AC’s position………..

49.

In construing the statutory scheme, the better approach would be to start from the position that Parliament intended for all detained mental health patients to have access to the FTT and a fully effective Article 5 ECHR judicial safeguard. It is difficult to discern why Parliament would intend for access to the FTT, the primary judicial safeguard under the MHA, to be curtailed in circumstances such as the Appellant’s. If Parliament intended to depart from its primary safeguard, it would have done so expressly. It did not do so and, as such, the construction of the statutory scheme which ensures access to a more effective judicial safeguard is consistent with the intention of Parliament and Article 5 ECHR.”

In a supplementary skeleton argument they conceded that the wording of the statute is “the Appellant’s weakest ground”, but submit:-

“The words of s.75(1)(b) read together with s.70(a) (but not s.70(b)) are arguably against us and are the reason for this appeal. But there is an answer, given that the issue is the survival of a pre-existing jurisdiction rather than the creation of a new one. The words of s.70(a) do not expressly prohibit the FTT retaining an extant jurisdiction. The whole of section 70 has two express preconditions: first, the patient is restricted (the appellant was a restricted patient throughout, both when conditionally discharged and after recall to hospital); second, the patient “is detained in a hospital”. The prohibition on the patient making an application only starts when a restricted patient is detained, and not before. There is nothing that nullifies an FTT jurisdiction that was validly acquired before the point of detention. If the Court agrees, then that determines this appeal, and the knottier issues that follow need not be decided.”

Ms Ailes, for the Secretary of State, submits that the First-Tier Tribunal and the Upper Tribunal were right for the reasons they gave, and that:

Ms Ailes noted that the Appellant himself has not been left without access to the Tribunal. The referral made under s 75(1) after his recall to hospital was adjudicated upon. His application under section 75(2) would not have added anything to it, nor resulted in any different outcome.

The point raised is therefore a hypothetical one; and the appeal is academic insofar as it is capable of having any practical effect on the Appellant’s position. The suggestion is that a recalled patient might be re-discharged so rapidly that no referral under s 75(1) is adjudicated upon, and thus that s 75(1) does not entirely fill the gap said to be left if an extant application cannot be pursued.

A point which is worth noting at the outset is that the hypothetical scenario posited is unlikely. Ms Ailes supports that contention by submitting that “it is striking that notwithstanding the age of the legislation, this suggested lacuna appears to have been raised only now for the first time, and in a case in which it does not actually arise on the facts”.

It would be rare in practice for the Tribunal to decide that a patient should be absolutely discharged upon a referral following a decision by the Secretary of State to recall them to hospital; and thus the hypothetical premise of this appeal is a scenario which is unlikely not only in one respect but in two.

Ms Ailes submitted that no issue arises under the ECHR. Where a patient is recalled to hospital, they are entitled to a speedy (and automatic) review of their detention which fully complies with Article 5 § 4 of the Convention. The scenario posited is the unusual one in which they are in fact released from hospital before even that prompt review can be adjudicated upon. No issue arises under Article 5 § 4, however, where the impugned detention is of short duration and the detainee is released speedily before any judicial review of the lawfulness of his or her detention could take place.

This appeal is academic for Mr Cameron, since he did obtain a prompt hearing before the Tribunal. However, both parties agree that the jurisdiction question should be addressed in order to give guidance for future cases.

It is a striking feature of the part of the 1983 Act which we have been considering that the obligation of the SSJ under s 75(1)(a) to make a referral to the Tribunal following the recall of a restricted patient is mandatory and unqualified. Even reading the statute as enacted, without recourse to the ECHR or the decision of this court in Rayner, the obligation is to make a referral within one month of a recall. Following the judgment of Keene LJ in Rayner, that obligation is to be interpreted as being to make a referral within “a few days”: in the present case it was made four days after Mr Cameron's recall. Plainly it is the practice of the FTT to prioritise recall cases, and rightly so.

That being the practice, it is in my view clear that any outstanding application by the patient under s 75 (2) is subsumed in the recall hearing. It is difficult to see what practical advantage there would have been for Mr Cameron or there would be for any other patient in the same position if it were otherwise. It was not suggested that the FTT was obliged to list Mr Cameron's application for absolute discharge to be heard before the Tribunal considered the case referred by the Secretary of State. So, if Mr Pezzani is right, the obligation of the FTT was only to keep the s 75 (2) application in the list to be heard together with the referral under s 75(1), as indeed it had been listed before Judge Chamberlain struck out the s 75(2) application. The powers of the FTT were the same. It is also common ground that, even though Mr Cameron’s application had been lodged in October 2023, had it maintained its separate existence, the Tribunal would nevertheless have been bound to consider it on the basis of any up-to-date evidence that was available at the date of the hearing. This would have included evidence of the circumstances leading up to his recall. In any event it seems highly unlikely, save in a case where the recall was irrational, that the referral to the Tribunal would result in an absolute discharge as opposed to a conditional discharge. But the power is there if the Tribunal sees fit to exercise it.

The real concerns raised by Mr Pezzani and Mr Persey, and mentioned by Judge Jacobs, appear to be not a case such as Mr Cameron’s (that is to say a patient who has been recalled and who has not been discharged by the time of the referral hearing) but a hypothetical patient who is recalled but then discharged before the Tribunal can even hear the case.

That is a different set of facts from Mr Cameron’s, and closer to the previous decision of UTJ Jacobs in DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice [2022] UKUT 166 (AAC). In that case a restricted patient applied to the Tribunal but was conditionally discharged by the Secretary of State (albeit with a condition of continuing to reside in prison) before the application was heard. Judge Jacobs decided that in that situation the FTT retained jurisdiction. He said:-

“If the First-tier Tribunal ceased to have jurisdiction when DD was conditionally discharged, he would not be able to apply to the tribunal again for 12 months (see section 75). And it is possible to construct scenarios in which a series of conditional discharges and recalls would operate to prevent the tribunal ever having jurisdiction to hear an application. That would remove any guarantee of judicial oversight. These scenarios are not fanciful. They are realistic ones for a patient with a fluctuating condition.”

DD was distinguished by Judge Jacobs in his decision now under appeal. As he said in the present case:-

“27.

A patient’s status can change and change again in quick succession. This is particularly likely with a succession of community treatment orders and recalls to stabilise a patient’s condition. The Act makes detailed provision for applications and references to ensure regular judicial oversight. It has not, though, provided for every eventuality and the way the provisions work could deprive the patient of effective judicial oversight, as I said in DD at [22]. It is possible, although probably unlikely, that a patient could be recalled and then conditionally discharged quickly without a reference being made. That could leave the patient without recourse to the First-tier Tribunal. The principle of judicial oversight is, however, not limited to oversight by the First-tier Tribunal.” [The judge then referred to paragraph 46 of the decision in Rayner].”

I agree with Judge Jacobs that, even in the case of a patient whose status changes repeatedly, the legislative provisions governing the recall of a conditionally discharged patient, as interpreted in Rayner, provide effective judicial oversight. In the present case, the FTT’s jurisdiction under s 75(1) following Mr Cameron’s recall does so. In the DD case the FTT’s retained jurisdiction did so. In the even more hypothetical case of a patient where the FTT has no such jurisdiction, Rayner confirms that the availability of judicial review is an adequate fallback.

I would dismiss the appeal.

I agree.

I also agree.