AC v Southern Health NHS Foundation Trust & Anor

A First-tier Tribunal’s jurisdiction is determined by the statutory provisions conferring jurisdiction and by the circumstances existing at the relevant time. A change in a patient’s status does not invariably end jurisdiction over proceedings already begun, but the precise effect depends on the provisions engaged. On recall of a conditionally discharged restricted patient, the statutory reference mechanism provides judicial oversight and the application provisions may prevent the patient from pursuing an earlier application. The First-tier Tribunal must strike out proceedings over which it has no jurisdiction. That duty is mandatory.

AC was a restricted patient who had been conditionally discharged. He applied to the First-tier Tribunal under section 75(2) of the Mental Health Act 1983. Before the application was determined, the Secretary of State recalled him to hospital and referred his case to the tribunal under section 75(1).

The First-tier Tribunal decided that it had lost jurisdiction over the application and struck out the proceedings under rule 8(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. The issue on appeal was whether the recall affected the tribunal’s jurisdiction over the existing application, and whether the statutory scheme nevertheless secured effective judicial oversight.

1. Appeal dismissed. The First-tier Tribunal had no further jurisdiction over AC’s application and was required to strike out the proceedings under rule 8(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. The rule imposes a duty, not a discretion, where the tribunal lacks jurisdiction. Proceedings struck out for want of jurisdiction cannot be reinstated.
2. Jurisdiction is determined by the statutory provisions and the circumstances existing at the relevant time. Procedural rules regulate proceedings but do not themselves confer jurisdiction. Applying the approach in Garthwaite v Garthwaite [1964] P 356, jurisdiction concerns the subject matter, parties and relief sought. A tribunal may retain jurisdiction despite a change in one or more of those factors, but the effect of a change in a patient’s status depends on the particular provisions of the Mental Health Act 1983.
3. AC had jurisdiction to make his application under section 75(2)(b) when he applied. Following recall, section 75(1)(a) required the Secretary of State to refer his case promptly. Section 75(1)(b), applying section 70, restarted the statutory period and prohibited an application during the first six months after return to hospital. That restriction covered not only the act of making an application but also pursuing an existing application to its conclusion.
4. The reference, reinforced by rule 17(3), secured judicial oversight because the Secretary of State could not withdraw it. Article 5(4) of the Convention required the referral to be made with such promptness as the circumstances demanded. The wider safeguards identified in R (Rayner) v Secretary of State for Justice [2009] 1 WLR 310, including judicial review and habeas corpus, meant that the statutory scheme provided effective judicial oversight despite possible unforeseen sequences of status changes.

• Upper Tribunal (Administrative Appeals Chamber): appeal from the First-tier Tribunal dismissed. The Upper Tribunal held that the First-tier Tribunal had not erred in law and had correctly struck out the application proceedings under rule 8(3)(a).
• First-tier Tribunal (Health, Education and Social Care Chamber): on 10 April 2024, the tribunal held that it lacked jurisdiction over AC’s application and struck out the proceedings.