Angus Cameron v Secretary of State for Justice & Anor

A patient’s outstanding application for discharge under section 75(2) of the Mental Health Act 1983 is subsumed when the Secretary of State recalls the patient to hospital and makes the mandatory reference required by section 75(1). The First-tier Tribunal’s powers on the recall reference provide the required judicial oversight, including power to order absolute discharge where appropriate. The statutory scheme, interpreted in accordance with R (Rayner) v Secretary of State for Justice, remains effective even where a patient’s status changes repeatedly. Judicial review is an adequate fallback where no tribunal jurisdiction exists.

The appellant, a restricted patient conditionally discharged under section 42(2) of the Mental Health Act 1983, applied to the First-tier Tribunal under section 75(2) for absolute discharge. Before that application was heard, the Secretary of State recalled him to hospital under section 42(3), triggering a mandatory reference under section 75(1). The First-tier Tribunal struck out the outstanding application, holding that recall removed its jurisdiction. The Upper Tribunal upheld that decision, applying R (Rayner) v Secretary of State for Justice [2008] EWCA Civ 176. The central issue was whether the pending application survived recall, or whether its extinction created a gap in the judicial oversight required by article 5(4) of the Convention.

1. Appeal dismissed. The appeal was academic for the appellant because the Secretary of State’s reference received a prompt hearing, but the jurisdiction issue was addressed to provide guidance.
2. The duty under section 75(1)(a) of the Mental Health Act 1983 to refer the case of a recalled restricted patient is mandatory and unqualified. Following Rayner [2008] EWCA Civ 176, the reference should ordinarily be made within a few days, not weeks.
3. Any outstanding application under section 75(2) is subsumed in the recall hearing. The Tribunal must consider up-to-date evidence, including the circumstances leading to recall. The recall reference has power to result in absolute discharge, although such an outcome may be unlikely unless the recall was irrational.
4. The statutory scheme provides effective judicial oversight even where a patient’s status changes repeatedly. The retained jurisdiction recognised in DD v Sussex Partnership NHS Foundation Trust and Secretary of State for Justice [2022] UKUT 166 (AAC) provided oversight in that case. Where the First-tier Tribunal has no jurisdiction because the patient is discharged before a reference is heard, Rayner confirms that judicial review is an adequate fallback.
5. Lord Justice Baker and Lord Justice Males agreed with Lord Justice Bean.

• Court of Appeal (Civil Division) — [2025] EWCA Civ 1574: appeal dismissed.
• Upper Tribunal (Administrative Appeals Chamber) — Upper Tribunal Judge Jacobs upheld the First-tier Tribunal’s decision that it had no further jurisdiction over the section 75(2) application.
• First-tier Tribunal — Judge Chamberlain struck out the section 75(2) application after the appellant’s recall, while the Secretary of State’s section 75(1) reference remained listed.