PQR v Derbyshire Healthcare NHS Foundation Trust

An unlawful administrative act may continue to have legal effect unless and until it is set aside through a lawful process. The First-tier Tribunal’s statutory jurisdiction under the Mental Health Act 1983 is directed to deciding whether a patient should be discharged. It does not extend to determining the underlying validity of the admission or community treatment order giving rise to the patient’s status. Where the statutory scheme would otherwise make a tribunal application self-defeating, the court should adopt a pragmatic approach recognising legal certainty, orderly administration and the rule of law. Issues that cannot arise within the tribunal’s jurisdiction should not be determined as academic questions.

PQR appealed against the First-tier Tribunal’s decision concerning the extension of his community treatment order under the Mental Health Act 1983. The responsible clinician had examined him by telephone in 2020, and PQR argued that the examination had to take place in his presence. The First-tier Tribunal held that it lacked jurisdiction to determine the validity of the order. It nevertheless initially considered the construction issue, although that part of its decision was later set aside on review. The central issue before the Upper Tribunal was whether the First-tier Tribunal had jurisdiction to rule on the validity of the community treatment order or its extension.

1. The appeal was dismissed. The First-tier Tribunal had correctly decided that it had no jurisdiction to rule on the validity of the community treatment order.

2. The Upper Tribunal assumed, without deciding, that the 2020 telephone examination did not comply with section 20A(4)(a) of the Mental Health Act 1983. A purely logical analysis would mean that the order was not extended, that PQR was discharged by operation of section 20B, and that no relevant period or community patient status existed for an application under sections 66 and 72. That analysis would deprive the tribunal of jurisdiction.

3. The court adopted the pragmatic approach recognised in R (Majera (formerly SM (Rwanda))) v Secretary of State for the Home Department [2022] AC 461. An unlawful administrative act may retain legal effect unless and until it is set aside in a lawful manner. The purported extensions therefore had sufficient legal effect for PQR to apply to the First-tier Tribunal under section 66, and for the tribunal to possess its statutory discharge powers under section 72.

4. Those provisions nevertheless did not confer jurisdiction to determine the validity of the community treatment order. The reasoning of Ackner LJ in Ex parte Waldron [1986] QB 824, approved by the House of Lords in R (von Brandenburg) v East London and the City Mental Health NHS Trust [2004] 2 AC 280, applied equally to community treatment orders. The tribunal’s task is to decide whether the statutory discharge criteria are satisfied at the time of its review, not to determine the validity of the underlying order.

5. Even if the tribunal had jurisdiction, the judge considered that exercising the discretion to discharge would have been perverse on the evidence. The assessment had to balance liberty, the patient’s health and safety, and the protection of other persons. This conclusion was theoretical because the tribunal lacked jurisdiction.

6. Having reached that conclusion, the First-tier Tribunal was under a duty to strike out the validity issue under rule 8(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008.

• Upper Tribunal (Administrative Appeals Chamber) — The appeal was dismissed. The First-tier Tribunal had not erred in law under section 12 of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (Health, Education and Social Care Chamber) — Decision dated 9 December 2022, reviewed on 23 January 2023. It held that it lacked jurisdiction to determine the validity of the community treatment order. Its separate construction ruling was set aside on review.