DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice

An appeal may remain within the Upper Tribunal’s jurisdiction after it becomes academic, provided that a point of law arises from the decision under appeal. Whether to determine that point is discretionary. In the Administrative Appeals Chamber, the discretion must reflect its specialist and inquisitorial jurisdiction, including the importance of resolving a discrete recurring issue concerning liberty.

Where a restricted patient validly applies to the First-tier Tribunal under section 73 of the Mental Health Act 1983, a later conditional discharge does not remove the tribunal’s jurisdiction if an issue remains within section 73, including the conditions of discharge. A change of status will prevent continuing jurisdiction only where that outcome is inconsistent with the Act’s structure and its scheme of judicial oversight.

DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice concerned a restricted patient who applied to the First-tier Tribunal while hospital and restriction orders remained in force. Before the hearing, the Secretary of State conditionally discharged him on a condition requiring residence in prison.

The First-tier Tribunal, reference MP/2021/25440, decided on 25 November 2021 that it no longer had jurisdiction. DD appealed. Before the Upper Tribunal hearing, he was remitted for trial under the Criminal Procedure (Insanity) Act 1964; the hospital and restriction orders then ceased to have effect, rendering the individual dispute academic.

The issues were whether the Upper Tribunal should nevertheless decide the appeal and whether the First-tier Tribunal retained jurisdiction after the conditional discharge.

1. The First-tier Tribunal erred in law in deciding that it had lost jurisdiction. The Upper Tribunal did not set aside its decision because DD had ceased to be liable to detention and no practical purpose would be served by doing so.

2. The Upper Tribunal retained jurisdiction to determine the appeal. An appeal does not cease to be within its jurisdiction merely because it becomes academic after permission has been granted. Jurisdiction continues while a point of law arises from the decision appealed under section 11(1) of the Tribunals, Courts and Enforcement Act 2007.

3. It was appropriate to exercise that jurisdiction. The issue was a discrete and recurring question of statutory jurisdiction affecting protection of liberty. It was unlikely to depend on case-specific facts. A decision would avoid future delay and uncertainty. The usual criteria governing academic appeals could not simply be transferred to the Administrative Appeals Chamber, whose proceedings may not involve a conventional adversarial dispute and whose specialist judges take an inquisitorial and proactive approach.

4. Jurisdiction is distinct from the powers exercisable within it. DD’s application was validly made when he was a restricted patient subject to a restriction order. Under sections 72 and 73 of the Mental Health Act 1983, his conditional discharge changed the available relief but did not eliminate every issue. The tribunal could still determine the conditions of discharge. It therefore retained jurisdiction.

5. Continuing jurisdiction is not automatic. It cannot be retained where inconsistent with the Act’s structure. That exception applied in the earlier hospital-order context considered in GM v Dorset Healthcare NHS Trust and the Secretary of State for Justice, but not here. Holding otherwise could deprive a patient of effective and timely judicial oversight through successive conditional discharges and recalls.

• Upper Tribunal (Administrative Appeals Chamber): held that the First-tier Tribunal had erred in finding that it lacked jurisdiction, but exercised its power under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set aside the decision because the appeal had become academic.
• First-tier Tribunal (Health, Education and Social Care Chamber): reference MP/2021/25440, decision dated 25 November 2021. It held that DD’s conditional discharge deprived it of jurisdiction to determine his application.